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https://www.courtlistener.com/api/rest/v3/opinions/1328434/ | 93 Ga. App. 282 (1956)
91 S.E.2d 369
COLLINS
v.
GRIFFIN.
35983.
Court of Appeals of Georgia.
Decided January 31, 1956.
*284 Hilton & Hilton, L. H. Hilton, for plaintiff in error.
Howard & Hunter, W. C. Hawkins, contra.
QUILLIAN, J.
1. The plaintiff's counsel insist that there was not sufficient evidence from which the jury could determine that the plaintiff's negligence was the proximate cause of the collision or that the plaintiff's negligence was greater than that of the defendant's agent.
The evidence disclosed that two of the defendant's witnesses testified that the plaintiff was driving at least 70 miles per hour. Thames, the driver of the defendant's truck, testified that one of the reasons that he was not able to return to the right-hand lane was because of the rapid speed at which the defendant's automobile was approaching him.
The plaintiff's counsel contends this testimony had little or no probative value because it was the opinions of non-expert witnesses and that they did not testify as to the facts upon which they based their conclusions. The witnesses gave sufficient facts upon which they based their opinions. Thames, the driver of the truck involved in the collision, stated that when he first saw the plaintiff's automobile it was about one-half mile away and before he could get back into the right-hand lane of the highway the plaintiff's automobile had hit the truck. David Bragg testified that he had been a truck driver for several years and had observed the speed of many automobiles. He further testified that the plaintiff's automobile made a whistling sound which indicated a fast rate of speed. Both witnesses had some experience in judging speed and they also had a reasonably good opportunity to observe the speed of the plaintiff's automobile and therefore their testimony was of probative value. Allen v. Hatchett, 91 Ga. App. 571 (86 S.E.2d 662); Harmon v. Givens, 88 Ga. App. 629 (77 S.E.2d 223); Thornton v. King, 81 Ga. App. 122 (58 S.E.2d 227).
Thames testified that one of the reasons he was unable to return to the right side of the highway was because of the excessive speed at which the plaintiff was driving. There was competent evidence from which the jury could find that the plaintiff was negligent and that his negligence not only contributed to but constituted the proximate cause of the collision resulting in his *285 injuries. This is not one of those plain and indisputable cases in which reasonable men might not entertain opposing views as to whether the plaintiff was in the exercise of ordinary care for his own safety, or whether the plaintiff or the defendant's employee was guilty of the greater negligence. Howard v. Savannah Electric Co., 140 Ga. 482 (79 S.E. 112); Columbus R. Co. v. Berry, 142 Ga. 670 (83 S.E. 509); Larkin v. Andrews, 27 Ga. App. 685 (109 S.E. 518). The general grounds are without merit for the reasons assigned.
2. Special ground one of the amended motion for a new trial assigns as error the introduction in evidence of a "Seagrams 7" whisky bottle. This objection is without merit because similar evidence had been admitted prior to that in question. Both David Bragg and M. G. Arnsdorff testified that M. G. Arnsdorff had taken a whisky bottle from the plaintiff's automobile and had thrown it into the woods. Goolsby v. State, 147 Ga. 259 (93 S.E. 407); Reich v. State of Georgia, 63 Ga. 616; Woods v. State, 137 Ga. 85 (72 S.E. 908).
3. Special ground two contends that Annie Lee Moore, one of the jurors sitting on the jury, was related to the defendant within the prohibited degree. The plaintiff's counsel states that the relationship is by reason of the virtual adoption of the juror. Even though there are cases in which a child is allowed to inherit as an heir as the result of a virtual adoption, there is no legal relationship created by what is known as a virtual adoption. Rahn v. Hamilton, 144 Ga. 644 (87 S.E. 1061); Crawford v. Wilson, 139 Ga. 654 (78 S.E. 30, 44 L. R. A. (NS) 773). Furthermore one of the attorneys of record did not sign the affidavits to the effect that he did not know of the contended incompetence of the juror and therefore it must be presumed, when there is no explanation to the contrary, that the counsel who did not sign had knowledge of the contended incompetence. Brown v. Oattis, 55 Ga. 416 (1). This ground is without merit for the reasons assigned.
Judgment affirmed. Felton, C. J., and Nichols, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328409/ | 91 S.E.2d 468 (1956)
Clara WALKER
v.
Ellen R. ROBERTSON.
No. 10751.
Supreme Court of Appeals of West Virginia.
Submitted January 17, 1956.
Decided March 6, 1956.
Rehearing Denied May 22, 1956.
*470 Palmer & Elkins, J. Campbell Palmer, III, Charleston, for plaintiff in error.
Pauley & Andrews, E. Franklin Pauley, Larry W. Andrews, Charleston, for defendant in error.
*469 LOVINS, Judge.
This action of trespass on the case brought by Clara Walker against Ellen R. Robertson and W. S. Robertson in the Common Pleas Court of Kanawha County, West Virginia, resulted in a verdict and judgment in favor of the plaintiff and against the defendant *471 in the sum of $3,600, W. S. Robertson, the other defendant having been dismissed by the trial court. The plaintiff and the remaining defendant will be hereinafter so designated.
The object of the action was to recover damages allegedly resulting when the plaintiff was struck by an automobile operated by the defendant on the 27th day of July, 1953, which occurred on Capitol Street between Quarrier and Lee Streets, Charleston, West Virginia.
On the day of the accident, the defendant, in going to the business area of Charleston to meet her husband, drove her automobile in a westerly direction on Quarrier Street to the intersection with Capitol Street, thence in a northerly direction on Capitol Street. At the point of the accident, Capitol Street is a one way street, vehicles moving on such street in a northerly direction. That portion of such street used for vehicular traffic consists of three slabs of concrete, each of which is approximately 10 feet in width, and appropriate markings show three lanes of traffic.
Plaintiff who resides in a rural district, in company with her daughter, her daughter-in-law and her infant grandchild, came to Charleston in an automobile. They parked such automobile and made their way to a store on the west side of Capitol Street. Being unable to obtain the merchandise they desired at such store, they started to the east side of the street to another store, crossing at a point which is not a street intersection and where there was no marked pedestrian cross-walk. The plaintiff crossed the west and middle lanes of traffic and was entering on the east lane of traffic where she was struck by the automobile operated by the defendant.
The plaintiff, her daughter and daughter-in-law testified that she was struck by the left front fender of defendant's automobile. The defendant, on the contrary, testified that the plaintiff ran into the left rear fender. The plaintiff's right limb was fractured near the knee joint.
The plaintiff testified that she looked for approaching automobiles and did not see any before she entered the vehicular portion of the street, although the street at the point of the accident is straight. The defendant testified that she was driving fifteen or twenty miles an hour near the middle of the street, was keeping a lookout, that she turned to the right "the least little bit" to "get to the curbstone" and did not see the plaintiff until the accident occurred. Some of plaintiff's witnesses testified that there was a red traffic light suspended by wire at or near the center line of Capitol Street just south of the point of accident. Defendant testified that no such light was located at the point indicated by plaintiff's witnesses, but had been removed prior to the accident and lights on posts at or near the street corners had been substituted. The testimony of the defendant in this particular was corroborated by an electrician who had installed the lights on the posts.
After the accident, the plaintiff was assisted by two bystanders and thereafter taken to a hospital in defendant's automobile, accompanied by defendant's husband and the plaintiff's relatives.
At the hospital a physician was summoned who made an examination and applied a cast to the injured limb. Plaintiff was then permitted to go home where she remained in bed for approximately five weeks. The testimony of the plaintiff, her daughter and daughter-in-law tends to show that she was unable to perform farm chores or do any housework for approximately eight weeks after the accident. Plaintiff testified that she still suffers pain and disability from the injury.
The attending surgeon indicated that there had been a good recovery from the injury, that when he last saw plaintiff on or about the 22nd day of September, 1953, she was still suffering some discomfort. The testimony of the surgeon is not positive as to the permanency of the injury, though the testimony of plaintiff and her witnesses indicates that she still suffers pain and is disabled as a result of the injury.
*472 At the conclusion of plaintiff's evidence, the defendant moved for a directed verdict in her favor and when all of the evidence was introduced, she likewise offered a peremptory instruction and a motion for a directed verdict. The motion for a directed verdict in each instance was overruled and the peremptory instruction refused.
The defendant applied for, and obtained, a writ of error to the Circuit Court of Kanawha County. On a hearing of such writ, the judgment of the trial court was affirmed.
Defendant contends that the Circuit Court and Common Pleas Court of Kanawha County erred in the following: (1) The Circuit Court erred in affirming the judgment of the trial court. The trial court erred (1) in failing to consider testimony of plaintiff's witnesses as to the location of the red traffic light as an evidence of contributory negligence; (2) in admitting the testimony of plaintiff's witnesses as to the speed of defendant's automobile; (3) in refusing to declare a mistrial; (4) in overruling the challenge to the array of the jury; (5) in finding the defendant negligent; (6) in failing to find that the plaintiff was contributorily negligent as a matter of law; (7) in giving plaintiff's instruction number 2; (8) in refusing to give defendant's instruction number 2 as offered and amending the same; and, (9) in refusing defendant's instruction number 3.
The alleged error of the Circuit Court of Kanawha County in affirming the judgment of the Common Pleas Court will be considered and discussed under the assigned errors of the trial court.
The testimony of the witnesses relative to the existence of a red traffic light suspended by wire at or near the center of Capitol Street, even if false, only went to the credibility of plaintiff's witnesses and since the jury has passed on that question, we are not called upon to appraise or discuss the same. It suffices to say that the jury gave credit to other testimony offered by the plaintiff.
The objection to testimony of plaintiff's witnesses as to the speed of defendant's automobile is devoid of merit. An examination of the record shows that the plaintiff's witnesses did not testify as to the rate of speed of defendant's automobile, but did testify that it was going at a fast rate of speed. We think that any witness is qualified to say that a vehicle is moving fast or slow without specifying the rate of speed.
Defendant's assignment of error relative to the refusal of the court to direct a mistrial is grounded on evidence of plaintiff who stated that she had hospital insurance and the admonition of plaintiff's counsel impliedly warning against the introduction of the question of insurance. The record discloses no evidence which shows or tends to show that the defendant was protected by insurance. Such assignment of error by the defendant lacks merit.
After the return of the verdict, and as a ground for setting it aside, the defendant challenged the array of the jury on the ground that women had been intentionally and systematically excluded from the jury, contending that she was deprived of her lawful rights by such exclusion.
The Constitution of West Virginia, Article III, Sections 10, 13 and 14 relates to trials by jury. The common law, unless changed or modified by statute, is in force in this state. Constitution, Article VIII, § 21. At common law, a jury consisted of twelve men. Lovings v. Norfolk & W. Ry. Co., 47 W.Va. 582, 584 et seq., 35 S.E. 962. Code, 52-1-1 provides in substance that all male persons twenty-one years of age and not over sixty-five who are citizens of this state, shall be liable to serve as jurors.
We are cited to the cases of Strauder v. State of West Virginia, 100 U.S. 303, 25 L. Ed. 664; Norris v. State of Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074; and Hernandez v. State of Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed. 866. In these three cases the systematic and intentional exclusion of persons from juries was grounded on the race of the excluded persons *473 and the persons complaining were members of the race so excluded.
In the case of Commonwealth v. Welosky, 276 Mass. 398, 177 N.E. 656, 657, it was held that the exclusion of women from juries did not deprive the defendant of his constitutional right to a judgment of his peers. A similar holding was made in the case of State v. James, 96 N.J.L. 132, 114 A. 553, 16 A.L.R. 1141. It is true the Welosky and James cases involved criminal prosecutions. But by a parity reasoning those holdings can be applied to a trial of civil matters such as the instant case. See an article relative to the exclusion of women from a jury panel. 32 Columbia Law Review, page 134.
We have found no authority which supports the contention that the exclusion of women from the jury on a challenge to the array vitiates the verdict.
If meritorious, the challenge to the array should have been made before the jury was sworn. "No irregularity in any writ of venire facias, or in the drawing, summoning, or impaneling of jurors, shall be sufficient to set aside a verdict, unless objection specifically pointing out such irregularity was made before the swearing of the jury, or unless the party making the objection was injured by the irregularity." Code, 56-6-16.
This Court applied the statute in the case of State v. Price, 96 W.Va. 498, 123 S.E. 283, the fifth point of the syllabus, which reads as follows: "A challenge to the array because of irregularity in the venire facias or in the drawing, summoning or impaneling of the jurors, will not be sufficient to set aside a verdict, unless the challenge was made before the swearing of the jury, or the party was injured by the irregularity." See Garrett v. Patton, 81 W.Va. 771, 95 S.E. 437, where the question related to the challenge of a single juror. Even if there were merit in the contention of defendant, it was not timely made in accordance with the statute above quoted, nor is there any showing of prejudice or harm to the defendant resulting from the exclusion of women from the jury. We conclude, in accordance with the foregoing, that the challenge to the array of the jury was not effective and even if it had been, it was not timely made. Therefore, the trial court committed no error in refusing to set aside the verdict on that ground.
Negligence is the failure of a reasonably prudent person to exercise due care in his conduct toward others from which injury may occur. Washington v. Baltimore & O. R. Co., 17 W.Va. 190. See Nuzum v. Pittsburgh, C. & St. L. Ry. Co., 30 W.Va. 228, 236, 4 S.E. 242; Sebrell v. Barrows, 36 W.Va. 212, 215, 14 S.E. 996; Williams v. Belmont Coal & Coke Co., 55 W.Va. 84, 91, 46 S.E. 802; Robbins v. Baltimore & O. R. Co., 62 W.Va. 535, 538, 59 S.E. 512; Bice v. Wheeling Electrical Co., 62 W.Va. 685, 694, 59 S.E. 626; 1 Shearman and Redfield on Negligence, Revised Edition, § 1; Black's Law Dictionary, Fourth Edition, page 1184. Contributory negligence occurs where the complaining party acts or omits to act, with negligence, or without ordinary care, and which, with defendant's negligence is the proximate cause of an injury. Black's Law Dictionary, Fourth Edition, page 1185.
Concurrent negligence "Arises where the injury is approximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently." Black's Law Dictionary, Fourth Edition, page 1185.
In discussions of concurrent negligence, this Court has applied the doctrine of concurrent negligence to two or more persons occupying the position of defendants. Sigmon v. Mundy, 125 W.Va. 591, 25 S.E.2d 636; Wilson v. Edwards, 138 W.Va. 613, 77 S.E.2d 164, 173; Hartley v. Crede, W.Va., 82 S.E.2d 672, 679. In 1 Shearman and Redfield on Negligence, Revised Edition, page 104, the author discusses concurrent negligence under the heading "Concurring Causes." If the negligence of the plaintiff contributes proximately to his injury and concurs with negligence *474 on the part of the defendant, it is properly designated as contributory negligence rather than concurring negligence."
In determining whether the defendant was guilty of actionable negligence, the facts established in this record disclose that the defendant was traveling in her automobile at or near the center of Capitol Street, and at the time of the accident, turned her automobile toward the easterly curb. Defendant says she did not see the plaintiff. It was daylight at the time of the accident, and so far as can be determined from the record, there was nothing to obstruct the view of defendant. Why she failed to see the plaintiff who was approximately two-thirds across the vehicular portion of the street is unexplained. In similar situations, this Court has held that the motorist is negligent. Bower v. Brannon, W.Va., 90 S.E.2d 342, 347. See Higgs v. Watkins, 138 W.Va. 844, 78 S.E.2d 230; Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410; Jacobson v. Hamill, 120 W.Va. 491, 199 S.E. 593; Cline v. Christie, 117 W.Va. 192, 184 S.E. 854; Walker v. Bedwinek, 114 W.Va. 100, 170 S.E. 908; Robertson v. Hobson, 114 W.Va. 236, 171 S.E. 745; Liston v. Miller, 113 W.Va. 730, 169 S.E. 398; Shumaker v. Thomas, 108 W.Va. 204, 151 S.E. 178; Attelli v. Laird, 106 W.Va. 717, 146 S.E. 882; Beane v. Keyser, 103 W.Va. 248, 137 S.E. 898; Chaney v. Moore, 101 W.Va. 621, 134 S.E. 204, 47 A.L.R. 800. Relative to the duty of a motorist to anticipate the presence of others, see 5 Am.Jur., Automobiles, § 168. Such rule is particularly applicable on a much travelled public street.
Evaluating the conduct of defendant according to the rule adopted by this Court and stated in decided cases, we think it was a question for the jury to decide whether the defendant was negligent, and having so decided, we are not disposed to disturb that finding.
It is contended by the defendant that it was contributory negligence as a matter of law for the plaintiff to cross Capitol Street at a place other than a marked pedestrian cross-walk or a street intersection. The violation of an ordinance is prima facie negligence, but in order to bar recovery, it must be shown that such violation was the natural and proximate cause of injury. In the instant case it was a question within the province of the jury whether such action on the part of the plaintiff caused the injury. Meyn v. Dulany-Miller Auto Co., 118 W.Va. 545, 191 S.E. 558. See Skaff v. Dodd, 130 W.Va. 540, 44 S.E.2d 621. The ordinance here invoked by the defendant does not relieve her of the responsibility of keeping a lookout, though the plaintiff did cross at a place other than at a pedestrian cross-walk or street intersection. Skaff v. Dodd, supra.
The plaintiff testified she looked and did not see the approaching automobile of the defendant. Having looked, she was not required to keep looking. Barr v. Curry, 137 W.Va. 364, 71 S.E.2d 313; Walker v. Bedwinek, 114 W.Va. 100, 170 S.E. 908; Ritter v. Hicks, 102 W.Va. 541, 135 S.E. 601, 50 A.L.R. 1505; Deputy v. Kimmell, 73 W.Va. 595, 80 S.E. 919, 51 L.R.A.,N.S., 989. We conclude that the question of plaintiff's alleged contributory negligence was a question to be resolved by the jury.
What has been stated above with reference to the negligence of defendant and contributory negligence of the plaintiff precludes a finding of plaintiff's contributory negligence as a matter of law. Defendant's peremptory instruction A was properly refused.
Plaintiff's instruction number 2 which was given reads as follows: "The Court instructs the Jury that if you believe from a preponderance of the evidence in this case that Clara Walker sustained injuries in this accident and is entitled to recover from Ellen R. Robertson, then you may take into consideration the nature and extent of the injuries sustained by her, if any, and whether or not such injuries, if any, are permanent, and you may further take into consideration the physical pain, the mental anguish and suffering which Clara Wallker has suffered, if any, and *475 which, from the evidence in this case you may reasonably expect her to suffer, if any, in the future, and allow Clara Walker such damages as you believe she is justly entitled to from all the evidence in this case, not exceeding however, the amount sued for in the declaration."
Defendant objected to the foregoing instruction on the ground that there is no evidence of permanent injury. Conjecture, surmise and guess as to the permanent effect of an injury is not sufficient. "Reasonable certainty that future pain and suffering or loss of capacity to work will follow must be proved to warrant a verdict based on injuries of a permanent character." Wilson v. Fleming, 89 W.Va. 553, 559, 109 S.E. 810, 813. See Davis v. Pugh, 133 W.Va. 569, 57 S.E.2d 9. It is true there is no medical evidence as to the permanency of plaintiff's injury, but the lay testimony shows a reasonable certainty of the permanent effect upon the plaintiff's limb resulting from her injury. Moreover, considering plaintiff's instruction number 2 in its entire context, the question of permanency of injury was only one of the elements to be taken into consideration by the jury. It is to be supposed that the jury considered all of the elements and returned a verdict in a reasonable amount. We see no prejudicial error in the giving of plaintiff's instruction number 2.
The defendant offered instruction A which was peremptory and refused as above stated, and in addition, he offered instructions numbered 1, 2, 3, 4 and 5. Instructions numbered 1, 4 and 5 were given. Defendant's instruction number 2 was refused as offered but was amended and given. Such instruction number 2 as offered, reads as follows: "The Court instructs you that contributory negligence is the doing of a negligent act by a plaintiff which approximately contributes to causing the damages of which she complains. Therefore, you are instructed that if you find from the evidence that the plaintiff was guilty of committing any act of negligence, however slight, which proximately contributed to causing the injuries of which she complains, then you are not permitted to weigh the degree or amount of negligence of each of the parties, but you must return a verdict for the defendant." [Emphasis supplied.]
The trial court amended the instruction by striking out the word "must" and substituting the word "may". Otherwise, defendant's instruction number 2 was not amended. Defendant's instruction number 2 was a binding instruction as offered. The substitution of the word "may" for the word "must" made it a permissive instruction. Such instruction as offered should have stated the negligent acts or conduct allegedly committed by the plaintiff as constituting contributory negligence. It did not do so, and as offered, was properly refused. Bragg v. C. I. Whitten Transfer Co., 125 W.Va. 722, 727 et seq., 26 S.E.2d 217; Lawson v. Dye, 106 W.Va. 494, 498, 145 S.E. 817, 63 A.L.R. 271. See Burdette v. Henson, 96 W.Va. 31, 36, 122 S.E. 356, 37 A.L.R. 489; Woodell v. West Virginia Imp. Co., 38 W.Va. 23, 49, 17 S.E. 386. There was no error in the amendment of defendant's instruction number 2.
Defendant's instruction number 3 refers to the concurrent negligence of the plaintiff. As hereinabove stated, we think the term concurrent negligence applies to two or more persons occupying the position of defendants, and when applied to the plaintiff, as was done in defendant's instruction number 3, it really means contributory negligence of the plaintiff occurring at the same time of the alleged negligence of defendant. It was a clear misuse of terminology.
The objection to defendant's instruction number 3 was to the effect that it was covered by defendant's instruction number 2 as amended and given. We think that objection was well taken. There is no evidence disclosed by the record of any concurrent negligence in this action. Only one person was involved in operating defendant's automobile. Since the instruction was incorrect as above noted and was covered by defendant's amended instruction number 2, there was no error in the refusal of defendant's instruction number 3,
*476 In accordance with the foregoing, the judgments of the Circuit and Common Pleas Courts of Kanawha County, are affirmed.
Affirmed.
GIVEN, Judge (dissenting).
I think correct propositions of law are stated in the syllabus, but believe that Point 4 is not responsive to the question before the Court, raised by the amendment of defendant's Instruction No. 2, quoted in the majority opinion. As pointed out in the majority opinion, the amendment changed the nature of the instruction from one requiring a finding for defendant, where contributory negligence is established to the satisfaction of the jury, to a "permissive" instruction, permitting the jury to find either for or against the defendant, notwithstanding the establishment of contributory negligence which contributed proximately to plaintiff's injury.
In Morton v. Baber, 118 W.Va. 457, 190 S.E. 767, 768, this Court held: "3. * * there is no error in instructing the jury that there can be no recovery if negligence of the decedent, however slight, contributed proximately to his own injury. Such negligence contributes proximately to the injury, if, without it, the injury would not have resulted." It should be noticed that the existence of contributory negligence which contributed proximately to the injury precludes, absolutely, any recovery by plaintiff. No discretion as to recovery, in such circumstances, rests in the jury or in the court. That rule of law has been heretofore uniformly followed by this Court. See Belcher v. Norfolk & W. Ry. Co., W.Va., 87 S.E.2d 616; Reese v. Lowry, W.Va., 86 S.E.2d 381; Barr v. Curry, 137 W.Va. 364, 71 S.E.2d 313; Pritchard v. City Lines of West Virginia, Inc., 136 W.Va. 278, 66 S.E.2d 276; Divita v. Atlantic Trucking Co., 129 W.Va. 267, 40 S.E.2d 324; Casto v. Charleston Transit Co., 120 W.Va. 676, 200 S.E. 841; Willhide v. Biggs, 118 W.Va. 160, 188 S.E. 876. "It is a general if not a universal rule, that, if the plaintiff has been guilty of contributory negligence, he cannot recover." Point 4, Syllabus, Washington v. Baltimore & O. R. Co., 17 W.Va. 190.
The majority opinion relies upon Bragg v. C. I. Whitten Transfer Co., 125 W.Va. 722, 26 S.E.2d 217, and other cases cited in the majority opinion. An examination of those cases discloses that they relate to instructions which were binding in form, based on certain enumerated facts, but which omitted material facts supported by evidence. The instruction presently involved is not that type of instruction. It does not purport or attempt to designate facts concerning which proof was offered to establish contributory negligence. It attempts only to inform the jury of the rule of law relating to recovery where the jury have found, and were justified in finding, that plaintiff was guilty of contributory negligence which contributed proximately to the injury.
The importance of the question is apparent in the instant case where the evidence discloses that plaintiff deliberately walked blindly across perhaps the most busy street in one of the busiest cities, where no cross-walk existed, violating a city ordinance, without even looking for oncoming traffic after starting across the street, notwithstanding she was attempting to cross the street at not a great distance from an intersection of another busy street from which heavy traffic flowed onto the street which she was attempting to cross. All agree that the evidence introduced, at least, presented a question for the jury as to whether plaintiff was contributorily negligent, yet the jury were told that though they found she was guilty of contributory negligence and that such negligence contributed proximately to her injury, she "may" recover.
Being of the views indicated, I respectfully dissent. I am authorized to say that Judge Riley joins in this dissent. We would reverse the judgment complained of and remand the case for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328412/ | 478 S.E.2d 871 (1996)
The STATE, Respondent,
v.
Roger Dale SPROUSE, Appellant.
No. 2592.
Court of Appeals of South Carolina.
Submitted November 6, 1996.
Decided November 25, 1996.
*872 Ricky Harris, of Spartanburg; and S.C. Office of Appellate Defense, Columbia, for Appellant.
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Columbia; and Solicitor Holman C. Gossett, Jr., Spartanburg, for Respondent.
ANDERSON, Judge:
Roger Dale Sprouse appeals his conviction for committing a lewd act upon a child under the age of fourteen. We affirm.[1]
*873 FACTS/PROCEDURAL BACKGROUND
Sprouse was accused of committing a lewd act upon his eight-year-old daughter (victim) when she visited him at his home in Spartanburg County on June 11, 1994. The victim lived with her mother in Union County. After a jury trial, Sprouse was found guilty of the offense as charged and sentenced to twelve years in prison.
ISSUES
(1) Did the trial judge err in excluding evidence of an allegedly false accusation of prior abuse?
(2) Did the trial judge err in allowing testimony regarding Sprouse's statement to a Department of Social Services (DSS) employee when he was not advised of his Miranda rights?
(3) Did the trial judge properly refuse to instruct the jury on any lesser offenses?
LAW/ANALYSIS
1. ALLEGATION OF PRIOR ABUSE.
Sprouse contends the trial judge erred in granting the State's motion to exclude evidence of an allegedly false accusation of sexual abuse made by the victim's grandmother. Sprouse's contention is without merit.
Prior to trial in 1995, the State moved to exclude from evidence a medical record from Eastside Family Physicians dated September 29, 1989. The document contained notes of a physician's exam to detect sexual abuse performed on the victim when she was four years old. The notes read in pertinent part, "Pt [Patient] is brought in by her Mom as her g-mom is worried that she is being sexually abused. Child was fussy a lot when mom was cleaning her bottom after a bath yesterday and the grandmom thought that the child might have been abused. Mom does not feel that this is so and states that the child has always had a real sensitive bottom." The exam revealed no signs of abuse.
Defense counsel stated he intended to ask the victim if Sprouse had ever sexually abused her before, and then inquire whether she remembered anything about the 1989 doctor's visit. Counsel argued that, because the medical examination uncovered no signs of physical abuse, he was entitled to pursue this topic on cross-examination because it constituted a prior false allegation of sexual abuse.
The trial judge granted the State's motion to exclude evidence of the prior medical examination, stating the defense would not be allowed to pursue this line of inquiry. The judge noted the suspicion of abuse came from the grandmother, not the victim. The judge also noted it had been six years since the doctor's examination, and there was never any formal investigation into the matter. The judge concluded the prejudicial value of the evidence outweighed its probative value.
On appeal, Sprouse contends the trial judge's ruling was error and that the evidence was admissible pursuant to State v. Boiter, 302 S.C. 381, 396 S.E.2d 364 (1990), which provides:
Evidence of prior false accusations by a complainant may be probative on the issue of credibility....
We hold that in deciding the admissibility of evidence of a victim's prior accusation, the trial judge should first determine whether such accusation was false. If the prior allegation was false, the next consideration becomes remoteness in time. Finally, the trial court shall consider the factual similarity between [the] prior and present allegations to determine relevancy.
Id. at 383-84, 396 S.E.2d at 365 (emphasis added). Sprouse argues the grandmother's allegation of abuse was "patently false" and that its occurrence in 1989 was not too remote from the alleged incident of abuse in 1994. Further, Sprouse contends the allegations were factually similar.
It is well settled that an appellate court will not disturb a trial judge's ruling concerning the scope of cross-examination of a witness to test his or her credibility, or to show possible bias or self-interest in testifying, absent a manifest abuse of discretion. State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994); State v. Boiter, supra; State v. Barroso, ___ S.C. ___, 462 S.E.2d 862 (Ct.App.1995). Evidence, even if arguably relevant, must be excluded if its probative value is outweighed *874 by the prejudicial impact of its admission. State v. Kelley, 319 S.C. 173, 460 S.E.2d 368 (1995); State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991).
We find there was no basis for challenging the victim's credibility or cross-examining her about the 1989 doctor's visit under the auspices of Boiter. The rule set forth in Boiter is designed to allow a defendant to challenge the credibility of the victim based on the victim's prior false allegations. In this case, it was the grandmother who purportedly harbored a suspicion of abuse, not the victim. Further, the characterization of the grandmother's suspicion as a "prior false allegation" appears questionable. Rather, it is more in the nature of an explanatory statement of why the victim was brought in for an examination by her mother. There is no indication that a formal accusation of abuse was ever made by the grandmother, nor was an official investigation conducted. Since there is no evidence that the victim ever made a prior false allegation of sexual abuse, we hold the trial judge did not abuse his discretion in ruling the defense could not pursue this line of inquiry.
2. STATEMENT MADE TO DSS EPLOYEE WITHOUT MIRANDA WARNING.
Sprouse next argues the trial judge erred in refusing to suppress his oral statement admitting guilt to a DSS employee because the employee did not advise him of his rights to an attorney and to remain silent in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We disagree.
Prior to trial, defense counsel moved to suppress an oral statement Sprouse gave on July 23, 1994 to Roy Davis, a case manager with the Union County DSS office. Mrs. Nancy Howell, the mother of the victim, purportedly called Sprouse that day and told him that he could come to Union County to visit their two sons. Howell had previously cut off all visitation after Sprouse was accused of abusing their daughter during her visit to his home on June 11, 1994. When Sprouse met with his sons on July 23rd, Howell allegedly told Sprouse that he needed to talk to Davis because he was investigating the case for DSS; Howell suggested Sprouse should go ahead and meet with Davis because otherwise Sprouse would just have to come back at a later date.
The DSS office was closed on July 23rd, a Saturday, so Sprouse met with Davis in the DSS parking lot. Sprouse and Davis talked for a little over three hours. Davis never told Sprouse that he was under arrest and he did not threaten him. At the end of the discussion, Sprouse allegedly confessed to having committed the offense. Sprouse stated he did not leave during the discussion because he thought "that [Davis] was a legal representative of an office" and that he did not know if Davis had the power to arrest him if he had just ended the conversation. Sprouse said he was under medication for his nerves and had been standing out in the sun for several hours when he confessed.
Defense counsel argued the confession was inadmissible because Sprouse was subjected to custodial interrogation by Davis without being advised of his Miranda rights.
The trial judge denied the motion to suppress Sprouse's statement to DSS. The judge found Sprouse voluntarily met with Davis in the parking lot and that he was never in custody so as to trigger the requirements of Miranda. The judge noted Sprouse had previously been arrested for the alleged lewd act, but he had been released on bond before the conversation with Davis transpired; therefore, Sprouse was no longer in custody. The judge ruled Davis was not a law enforcement officer and that his conversation with Sprouse did not constitute an interrogation.
On appeal, Sprouse contends the judge should have suppressed his statement because Davis was acting as an agent for law enforcement when he interviewed Sprouse; therefore, Davis should have advised Sprouse of his Miranda rights. While the State concedes Davis had a duty to report instances of suspected child abuse or neglect to the appropriate law enforcement agency pursuant to S.C.Code Ann. § 20-7-650(L) (Supp.1995), the State argues this does not make him an *875 "agent" of the police, and his interview with Sprouse was not a custodial interrogation.
Statements, whether inculpatory or exculpatory, obtained as a result of custodial interrogation, are inadmissible unless the defendant was advised of and waived his rights. The accused must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.
In Miranda v. Arizona, supra, the Court held that the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during "custodial interrogation" without a prior warning. Custodial interrogation means "questioning initiated by law enforcement officers after a person has been taken into custody...." Id. 384 U.S., at 444, 86 S.Ct., at 1612. The warning mandated by Miranda was meant to preserve the privilege during "incommunicado interrogation of individuals in a police-dominated atmosphere." Id., at 445, 86 S.Ct., at 1612. That atmosphere is said to generate "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id., at 467, 86 S.Ct., at 1624. "Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated." Berkemer v. McCarty, 468 U.S. 420, 437, 104 S. Ct. 3138, 3148, 82 L. Ed. 2d 317 (1984).
Illinois v. Perkins, 496 U.S. 292, 296, 110 S. Ct. 2394, 2397, 110 L. Ed. 2d 243, 250 (1990) (holding the essential ingredients of a policedominated, coercive atmosphere are not present when an incarcerated person speaks freely to an undercover officer whom he believes to be a fellow inmate).
The fact that the investigation has focused on the suspect does not trigger the Miranda warnings unless he is in custody. Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984) (admissions made by a probationer to his probation officer without prior warning held admissible in probationer's subsequent criminal prosecution).
Miranda warnings are required for official interrogations only when a suspect "has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, supra. While Miranda may apply to one who is in custody on an unrelated offense, see Mathis v. United States, 391 U.S. 1, 88 S. Ct. 1503, 20 L. Ed. 2d 381 (1968), the mere fact that one is incarcerated does not render an interrogation custodial, Cervantes v. Walker, 589 F.2d 424 (9th Cir.1978). The totality of the circumstances, including the individual's freedom to leave the scene and the purpose, place and length of the questioning must be considered. United States v. Helmet, 769 F.2d 1306 (8th Cir.1985). The relevant inquiry is whether a reasonable man in the suspect's position would have understood himself to be in custody. See Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).
Bradley v. State, 316 S.C. 255, 257, 449 S.E.2d 492, 493-94 (1994).
The initial determination of whether an individual was in custody depends on the objective circumstances of the interrogation, not the subjective views harbored by either the interrogating officers or the person being questioned. Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994).
Interrogation occurs whenever a person is subjected to either express questioning by a law enforcement officer or its functional equivalent which the officers should know is reasonably likely to elicit an incriminating response from the suspect. Arizona v. Mauro, 481 U.S. 520, 107 S. Ct. 1931, 95 L. Ed. 2d 458 (1987). Miranda warnings are inapplicable to voluntary statements which are not the product of interrogation. State v. Howard, 296 S.C. 481, 374 S.E.2d 284 (1988); State v. Easier, ___ S.C. ___, 471 S.E.2d 745 (Ct. App.1996).
A number of jurisdictions have held Miranda inapplicable to statements made to *876 social workers in similar circumstances. See, e.g., Fain v. Alabama, 462 So. 2d 1054 (Ala.Crim.App.1985) (defendant who admitted committing sexual assault to social worker not in custody, even though social worker asked defendant to come to her office after having interviewed victim and receiving a notice from the police; defendant was not deprived of his freedom of action and came to the office of his own free will; court noted it is the custody, and not being the focus of an investigation, which marks the point at which a Miranda warning becomes necessary); California v. Battaglia, 156 Cal. App. 3d 1058, 203 Cal. Rptr. 370 (1984) (statute requiring a clinical social worker to report incidents of child abuse to the State does not turn social worker into an arm of the State for Miranda purposes; in a noncustodial setting, a listener who knows he or she will report statements to a state agency need not give the speaker a Miranda warning); Gresh v. Florida, 560 So. 2d 1266 (Fla.Dist.Ct.App.1990) (Miranda inapplicable due to lack of custodial setting where defendant was interviewed by social workers in a parking lot); Louisiana v. Hathorn, 395 So. 2d 783 (La.1981) (defendant who admitted poisoning her children during interview by social worker at the hospital was not the subject of custodial interrogation; therefore, defendant's statements were properly admitted in the absence of a Miranda warning); Massachusetts v. Berrio, 407 Mass. 37, 551 N.E.2d 496 (1990) (defendant's statement to Department of Social Services investigator and observing social worker during investigation of child sexual abuse report was not a "custodial interrogation" requiring Miranda warnings); Minnesota v. Holden, 414 N.W.2d 516 (Minn.Ct. App.1987) (defendant, who voluntarily went to police station and was interviewed by social worker and police officer in room located just inside unguarded lobby and exit, was not in custody and was not entitled to Miranda warning; police officer left interview on two occasions and left defendant alone with social worker, who did most of the questioning; restraints equivalent to formal arrest were not present); Wicker v. Texas, 740 S.W.2d 779 (Tex.Crim.App.1987) (social worker was not required to advise defendant of his Miranda rights where defendant voluntarily went to employee's office to provide confession; defendant was not in custody or otherwise deprived of his freedom of action in any significant way at time he confessed to social worker that he had had intercourse with his daughter; the court concluded the circumstances did not amount to a "custodial interrogation"), cert. denied, 485 U.S. 938, 108 S. Ct. 1117, 99 L. Ed. 2d 278 (1988). Cf. North Carolina v. Nations (Nations I), 319 N.C. 318, 354 S.E.2d 510 (1987) (child protection social worker, conducting interview with jailed defendant to investigate sexual offense other than that for which defendant was detained, was not acting as an agent of the state, and inculpatory statements were not taken in violation of defendant's right to counsel; social worker had no arrest power and was not affiliated with law enforcement).
In this case, Sprouse voluntarily met with Davis at the DSS parking lot based on Mrs. Howell's statement that he would need to talk to Davis sooner or later. Davis did not wear a uniform or carry a gun, and at no time did Davis tell Sprouse that he was under arrest. Davis was not a law enforcement officer, and the confession was not the product of a coercive, police-dominated interrogation.
Accordingly, we find Sprouse was not in custody when he gave his statement to Davis, the case manager for Union County DSS. We further find that Davis was not acting as an agent of law enforcement at the time Sprouse made his statement. Therefore, we uphold the trial judge's determination that Sprouse was not subject to "custodial interrogation" and that the requirements of Miranda did not apply. Cf. In re Drolshagen, 280 S.C. 84, 310 S.E.2d 927 (1984) (questioning of student by principal in principal's office was not custodial interrogation even though police officers were present during questioning); State v. Doby, 273 S.C. 704, 258 S.E.2d 896 (1979) (simply because interview took place at Law Enforcement Center and at initiation of police investigators did not render it a custodial interrogation; rather, fact appellant voluntarily agreed to accompany investigators to their office and answer questions without being placed under arrest indicates a noncustodial situation), *877 cert. denied, 444 U.S. 1048, 100 S. Ct. 739, 62 L. Ed. 2d 735 (1980).
3. REFUSAL TO INSTRUCT JURY ON "LESSER OFFENSES."
Sprouse argues he was entitled to have the jury instructed on simple assault and battery, and assault and battery of a high and aggravated nature (ABHAN) as "lesser included offenses" of commission of a lewd act upon a child. We disagree.
An indictment will sustain a conviction for a lesser offense only if the lesser offense is included within the greater charged offense. State v. Fennell, 263 S.C. 216, 209 S.E.2d 433 (1974).
A trial judge is required to charge the jury on a lesser included offense if there is evidence from which it could be inferred that a defendant committed the lesser, rather than the greater offense. State v. Tyson, 283 S.C. 375, 323 S.E.2d 770 (1984); State v. Gandy, 283 S.C. 571, 324 S.E.2d 65 (1984).
State v. Mathis, 287 S.C. 589, 594, 340 S.E.2d 538, 541 (1986). Accord State v. Murphy, ___ S.C. ___, 471 S.E.2d 739 (Ct.App.1996).
The test for determining when a crime is a lesser included offense of the crime charged is whether the greater of the two offenses includes all the elements of the lesser offense. State v. Bland, 318 S.C. 315, 457 S.E.2d 611 (1995); Murdock v. State, 308 S.C. 143, 417 S.E.2d 543 (1992); State v. Suttles, 279 S.C. 87, 302 S.E.2d 338 (1983). If the lesser offense includes an element not included in the greater offense, then the lesser offense is not included in the greater. State v. Bland, supra.
Sprouse was charged with committing a lewd act upon a child, a violation of section 16-15-140 of the South Carolina Code, which provides in pertinent part:
It is unlawful for a person over the age of fourteen years to wilfully and lewdly commit or attempt any lewd or lascivious act upon or with the body, or its parts, of a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of the child.
S.C.Code Ann. § 16-15-140 (Supp.1995).
In contrast, "simple assault and battery" is an unlawful act of violent injury to another, unaccompanied by any circumstances of aggravation. State v. Cunningham, 253 S.C. 388, 171 S.E.2d 159 (1969); State v. Jones, 133 S.C. 167, 130 S.E. 747 (1925).
As a matter of law, the offense of assault and battery cannot be a lesser included offense of committing a lewd act upon a child because it requires proof of an element not required by the latter. Specifically, the crime of simple assault and battery requires proof of the commission of a violent injury, an element not included in the offense of committing a lewd act upon a child. Accordingly, Sprouse was not entitled to an instruction on assault and battery.
To the extent Sprouse also contends he was entitled to an instruction on ABHAN[2] as a lesser included offense, this issue is not preserved for review. Defense counsel asked only for an instruction on assault and battery, which the judge refused, and did not make a timely request for an instruction on ABHAN in the trial court. Accordingly, this issue is not properly considered on appeal. State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (issue not raised to and ruled upon by trial judge is not preserved for review). In any event, this issue is without merit because ABHAN is not a lesser included offense of committing a lewd act upon a child.
CONCLUSION
For the foregoing reasons, Sprouse's conviction is AFFIRMED.
CURETON and GOOLSBY, JJ., concur.
NOTES
[1] We decide this case without oral argument pursuant to Rule 215, SCACR.
[2] ABHAN is an unlawful act of violent injury to the person of another, accompanied by circumstances of aggravation, such as the use of a deadly weapon, the infliction of serious bodily injury, the intent to commit a felony, a great disparity between the ages and physical condition of the parties, a difference in the sexes, the taking of indecent liberties with a female, the purposeful infliction of shame and disgrace, or resistance of lawful authority. State v. Jones, supra; State v. Rucker, 319 S.C. 95, 459 S.E.2d 858 (Ct.App.1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328487/ | 212 Ga. 194 (1956)
91 S.E.2d 505
STRAIN, Administratrix,
v.
MONK.
19217.
Supreme Court of Georgia.
Submitted January 10, 1956.
Decided February 14, 1956.
Bagby & Perren, John T. Perren, for plaintiff in error.
Clarke & Anderson, contra.
HEAD, Justice.
1. Every presumption is in favor of the judgment of an ordinary setting apart a year's support, and it can not be collaterally attacked except where the record shows a want of jurisdictional facts. Tabb v. Collier, 68 Ga. 641, 643; Riddle v. Shoupe, 147 Ga. 387 (94 S.E. 236); Lane v. Jackson, 151 Ga. 584 (107 S.E. 846); Smith v. Smith, 187 Ga. 743, 745 (2 S.E.2d 417). In the present case the application of the widow recites every essential jurisdictional fact. The judgment setting aside the year's support could not, therefore, be vitiated, vacated, set aside, or reformed in a collateral proceeding.
2. Estoppel conveys no title in this State. Coursey v. Coursey, 141 Ga. 65, 68 (80 S.E. 462); Peacock v. Horne, 159 Ga. 707, 727 (126 S.E. 813); Fields v. Continental Ins. Co., 170 Ga. 28 (152 S.E. 60); Lankford v. Pope, 206 Ga. 430 (57 S.E.2d 538). The estate in property set aside as a year's support is a fee-simple title. Code § 113-1006; Lane v. Jackson, supra.
3. The trial judge did not err in sustaining the claim of the widow based on the year's support proceedings.
Judgment affirmed. All the Justices concur.
The application of Mrs. Ludie Ann Monk for a year's support out of the estate of William S. Monk alleged that she was the widow, that the deceased died a resident of the county, and that there was no administration upon his estate. Appraisers were appointed, and their return, setting aside certain personal property and three described tracts of land, was made the judgment of the court of ordinary and ordered recorded.
The widow thereafter entered into a contract for the sale of the lands set apart to her, subject to approval of title. She was advised by an attorney representing the other contracting party that there were certain errors in the description of one of the tracts of land, and that the matter should be corrected. She filed a petition in the court of ordinary, in which she prayed that the court pass an order declaring that no administration was necessary on the estate of the deceased. Objections were filed to this petition by persons claiming to be creditors of the deceased. The following entry appears on the petition, "The within and foregoing application is hereby withdrawn and dismissed without prejudice," *195 signed by the widow. Objections were filed by the creditors of the deceased to the order dismissing the petition, and on the hearing the ordinary declined to enter an order declaring no administration necessary. Subsequently the ordinary appointed Mrs. Evelyn Monk Strain (an alleged creditor of the deceased) as administratrix of his estate. The administratrix filed a petition for leave to sell the lands described in the year's support proceeding. The widow filed a claim to the lands, and her claim was transmitted to the superior court in the county where the lands are located.
The cause was submitted to the judge of the superior court, sitting without the intervention of a jury, on an agreed stipulation of facts. The stipulation provides in paragraph 1 as follows: "That the property comprising the subject matter of the claim was set apart to the claimant in the twelve months support proceedings and that by virtue of the award of appraisers and order thereon claimant acquired title to said property." In paragraph 3 it is said that the sole issue for determination is whether the widow, by filing the application seeking the declaration that no administration was necessary on the estate of the deceased, has thereby revested title to the property set apart as a year's support in the estate of the deceased, "or become estopped to claim said property as against the administratrix of said estate."
The judge of the superior court entered a judgment holding: "The claimant is vested with title to the property comprising the subject matter of the claim, and is not estopped to claim said property as against the administratrix of the estate of William S. Monk." The exception is to that judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328499/ | 478 S.E.2d 451 (1996)
223 Ga. App. 635
BROOKS et al.
v.
H & H CREEK, INC., et al.
No. A96A1464.
Court of Appeals of Georgia.
November 20, 1996.
*452 Waddell, Emerson & Buice, Elmarie A. Emerson, Milledgeville, for appellants.
Martin, Snow, Grant & Napier, William H. Larsen, Macon, Freeman & Hawkins, Roger M. Goode, Atlanta, Jones, Hilburn & Claxton, Eric L. Jones, Morris S. Robertson, Dublin, for appellees.
POPE, Presiding Judge.
Plaintiffs Susan Brooks and her husband sued Sherwin-Williams, Inc. and defendants H & H Creek, Inc. and Randy Clark in Baldwin County as joint tortfeasors for malicious prosecution. They also asserted several contract claims against defendants arising out of defendants' construction of their home. Defendants counterclaimed with a lien foreclosure *453 based on plaintiffs' failure to pay the balance due on their home. After plaintiffs dismissed Sherwin-Williams from the lawsuit and dismissed their contract claims against defendants, defendants successfully moved to change venue to their county of residence, Laurens County. There, defendants obtained summary judgment regarding plaintiffs' malicious prosecution claim. Plaintiffs contend that the trial court erred in dismissing that claim and that the change of venue was improper. Concluding that the change in venue was proper, but that summary judgment was not, we affirm in part and reverse in part.
In determining whether the trial court erred in granting defendants' summary judgment motion, we construe the evidence most favorably to plaintiffs as the opponents of the motion. See Turner v. Regal Ins. Co., 201 Ga.App. 720, 721, 411 S.E.2d 802 (1991). So construed, the evidence shows that in 1992, plaintiffs entered into a contract with H & H, whose president is Randy Clark, to build a house on Lake Sinclair. The initial cost-estimate for the house was approximately $160,000. Due to cost overruns, this estimate was revised to $180,000.
On June 2, 1993, shortly after learning about the revised estimate, Susan Brooks went to a Sherwin-Williams store in Milledgeville, Georgia to purchase wallpaper. She requested that the wallpaper be charged to H & H. After verifying that H & H had an account at the store in Laurens County, the manager of the Milledgeville store processed the sale. Although Brooks did not obtain express permission from H & H to make the charge, the record shows that it was customary for homeowners to make such charges. It also is undisputed that an allowance for wallpaper was included in the original estimate of construction costs. Additionally, the cost for the wallpaper was included in a detailed report that H & H prepared on July 15, 1993 and submitted to plaintiffs to demonstrate all the charges incurred in building the house, which eventually cost $198,000.
During July and August 1993, Sherwin-Williams sent invoices and bills to H & H for the wallpaper. Sherwin-Williams' Dublin store manager, Jimmy Townsend, handled the collection efforts, and was informed by H & H that one of H & H's customers had made the purchase but was refusing to pay H & H. Sherwin-Williams' practice was to pursue collection from its account holders, not the account holder's customers, unless the account holder indicated that the charges were not authorized. Sherwin-Williams asked Clark to sign an affidavit to that effect as H & H's representative. Clark agreed.
In his affidavit, Clark stated that H & H's account had been used to purchase the wallpaper without its consent, knowledge or approval. He also claimed that the wallpaper referred to in the invoices was not received by, used by, or in the possession of H & H. He further affirmed that the wallpaper purchase was not authorized and that H & H was not knowledgeable as to who had received or charged the wallpaper to its account. Additionally, he stated that he understood that the affidavit was part of a report of a criminal offense and that he might be required to testify in court.
Based on the information in the affidavit, one of Sherwin-Williams' employees obtained a warrant against Brooks for theft by taking. Brooks was arrested in November 1993. The charges against her, however, were dismissed following a commitment hearing which took place in December 1993.
1. "A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action." OCGA § 51-7-40. In such cases an aggrieved party has a heavy burden, but "may prevail if each of the following elements is pled and proved: (1) prosecution for a criminal offense instigated by defendant; (2) issuance of a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff." (Citation omitted.) Willis v. Brassell, 220 Ga.App. 348, 350, 469 S.E.2d 733 (1996).
(a) The trial court concluded that plaintiff could not meet the first element because the decision to take out the warrant was made by employees of Sherwin-Williams. *454 We disagree. "The law draws a fine line of demarcation between cases where a party directly or indirectly urges [the initiation of] criminal proceedings and cases where a party merely relays facts to [one] who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for malicious prosecution; in the latter case there is not. It is clear, though, that initiation of the criminal action need not be expressly directed by the party to be held liable." (Citation and punctuation omitted.) Id. at 350-351(1)(a), 469 S.E.2d 733. A person may be held liable for unduly influencing the decision to prosecute by providing information that is known to be false, misleading or materially incomplete. Id. at 351(1)(a), 469 S.E.2d 733.
Here, the decision to prosecute Brooks was based on the information Clark provided to Sherwin-Williams on H & H's behalf. And, there is evidence from which a jury could conclude that that information was known to be false, or was at least materially incomplete and misleading. As set forth above, H & H's customary practice was to allow its customers to make charges on its accounts as Brooks had done. Thus, there is evidence of implicit authorization for the charges even though Clark stated otherwise to Sherwin-Williams. Contrary to the information supplied by Clark, he and H & H also clearly knew that plaintiff had made the charges in question. This is demonstrated by the July 15, 1993 cost report prepared and submitted to plaintiffs and the fact that Sherwin-Williams previously informed Clark and H & H that Brooks had made the charges. The record further reveals that the wallpaper was received by agents of H & H, who actually hung it in plaintiffs' house. Consequently, it cannot be said as a matter of law that Clark and H & H were not the instigators of Brooks' prosecution. Id.
(b) The trial court also concluded that plaintiffs could not demonstrate that Clark and H & H had acted with malice, the fourth element, because there was no evidence that Clark intended for the information he gave to Sherwin-Williams to be used to prosecute Brooks. This conclusion, however, is unfounded. Although it is true that Clark testified under oath that he never intended for the information he supplied to be used to prosecute Brooks, that testimony is in direct conflict with the original affidavit he gave to Sherwin-Williams, which specifically stated that the information contained therein was part of a criminal report and that Clark was willing to testify in court.
Additionally, there is evidence in this case from which a jury could conclude that the information was provided to Sherwin-Williams in order to pressure plaintiffs into paying the balance due on their house. Specifically, Townsend testified that after Clark signed the original affidavit, either he or H & H's corporate secretary stated: "maybe this will help us get our money too." It is also clear that Clark and H & H had an additional financial interest in submitting the affidavit to Sherwin-Williams in that the affidavit would stop collection efforts against H & H. Based on the above, including the representations made in the affidavit, a jury could determine that Clark and H & H acted with an improper motive or with a reckless disregard for or conscious indifference to Brooks' rights, and therefore, they acted with malice. Id. at 352(3), 469 S.E.2d 733; Bowen v. Waters, 170 Ga.App. 65, 67(2), 316 S.E.2d 497 (1984).
(c) As the trial court acknowledged, the second and third elements of a malicious prosecution clearly exist in this case because Brooks' prosecution proceeded under a valid warrant issued by a magistrate and was dismissed at the commitment hearing.
(d) There is also evidence from which a jury could find the existence of the fifth element of malicious prosecution. As discussed in Division 1(a), a jury could determine that the information Clark supplied to Sherwin-Williams was false, misleading or materially incomplete. Lack of probable cause can be shown through evidence of a defendant's knowledge that the information being supplied is false or that it fails to set forth a full, fair and complete statement of the facts or conceals facts. Willis, 220 Ga. App. at 353(4), 469 S.E.2d 733.
(e) Based on her testimony, the jury further could determine that Brooks suffered *455 damages as the result of her arrest and prosecution. Consequently, we hold that the trial court erred in dismissing plaintiffs' malicious prosecution claim as a matter of law.
2. We find no merit in plaintiffs' contention that the trial court erred in transferring venue to Laurens County. This contention is premised on the assertion that Clark and H & H's motion to transfer was untimely. Plaintiffs, however, have cited no authority to support such a position, and we give great deference to the trial court's conclusion to the contrary. Moreover, based on Collipp v. Newman, 217 Ga.App. 674, 675, 458 S.E.2d 701 (1995), once plaintiffs voluntarily dismissed Sherwin-Williams from the suit, it is undisputed that venue in Baldwin County vanished with regard to plaintiffs' malicious prosecution claim. And, we will not reverse the trial court's decision not to sever the lien foreclosure action from that claim pursuant to OCGA § 9-11-42(b) absent a manifest abuse of discretion. See Vitner v. Funk, 182 Ga.App. 39, 42(1), 354 S.E.2d 666 (1987); Wheels & Brakes v. Capital Ford Truck Sales, 167 Ga.App. 532, 533(1), 307 S.E.2d 13 (1983).
Based on the record evidence, no such abuse of discretion exists in this case in light of the fact that only one witness identified during discovery resides in Baldwin County, while the majority reside in Laurens County, and the fact that there is no evidence of prejudice to plaintiffs resulting from the decision not to sever the claims. Furthermore, the decision not to sever the malicious prosecution claim from the counterclaim was authorized for purposes of judicial economy due to the close relationship between each claim. See Wheels & Brakes, 167 Ga.App. at 533(1), 307 S.E.2d 13. Accordingly, we affirm the transfer of venue to Laurens County.
Judgment affirmed in part and reversed in part.
ANDREWS and SMITH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328502/ | 212 Ga. 226 (1956)
91 S.E.2d 509
MATHIS
v.
BLANKS et al.
19159.
Supreme Court of Georgia.
Argued November 14, 1955.
Decided January 10, 1956.
Rehearing Denied February 16, 1956.
A. C. Felton, III, Wm. T. Roberts, for plaintiff in error.
W. F. Blanks, J. Frank Myers, contra.
*230 CANDLER, Justice.
1. We will first deal with the defendant Albert H. Davis' general demurrer, which the trial judge sustained. The petition alleges that the relation of attorney and client existed between the defendants Blanks and Davis, and that the former knew of fraudulent acts which had been committed for the purpose of defeating the plaintiff's right to alimony. It is well settled that notice to an attorney is notice to the client employing him, and that knowledge of an attorney is knowledge of his client, when such notice and knowledge come to the attorney in and about the subject matter of his employment. Citizens Bank of Vidalia v. Citizens & So. Bank, 160 Ga. 109 (4) (127 S.E. 219), and cases there cited; Lewis v. Foy, 189 Ga. 596 (6 S.E.2d 788). In the Citizens Bank of Vidalia case this court, citing 6 C. J. 639 § 144, as authority therefor, said: "It is necessary that the knowledge of the attorney be gained in the course of the particular transaction in which he is employed by his client." And in Lewis v. Foy, supra, it was unanimously held that the above-stated rule respecting the relation of attorney and client, and imputable notice, applies only to the parties while the relation exists and with reference to the matter involved in that relationship. In the case at bar, it is not alleged that the defendant Blanks, as attorney or otherwise, represented the defendant Davis in acquiring the property here involved; and it is an elementary rule of construction, as applied to a pleading, that it will be construed on demurrer thereto most strongly against the pleader. Johnson v. Sears, 199 Ga. 32 (34 S.E.2d 541); Clements v. Hollingsworth, 205 Ga. 153 (52 S.E.2d 465). Since the petition in the instant case does not allege that the relation of attorney and client existed between the defendant Blanks and the defendant Davis in the latter's acquisition of the subject property, and there is no other allegation that the defendant Davis knew of the plaintiff's alleged equity, we must and do hold that it is insufficient to negative the presumption that the defendant Davis was a bona fide purchaser for value and without notice of any equitable right which the plaintiff may have had in the property he purchased.
2. Code § 37-111 declares: "A bona fide purchaser for value, and without notice of an equity, will not be interferred with by equity." In *227 Gamble v. Brooks, 170 Ga. 662 (153 S.E. 759), it was said: "This doctrine proceeds on the idea that the equity of the innocent purchaser is superior to that of the cestui que trust, who stands silently by and permits such purchaser to act to his own injury, or who is guilty of laches in not sooner asserting a mere secret equity. A bona fide purchaser without notice acquires an unqualified legal right and title to the property purchased; and a court of equity has no jurisdiction to interfere with such vested legal right and title." To the same effect see Parker v. Barnesville Savings Bank, 107 Ga. 650 (34 S.E. 365); Martin v. Home Owners Loan Corp., 203 Ga. 480 (48 S.E.2d 376). Where property is regularly sold under a power of sale contained in a security deed, the sale is equivalent to one under a decree in equity. Ellis v. Ellis, 161 Ga. 360 (130 S.E. 681).
(a) Even if it can be said that the allegations of the petition are sufficient to show that the defendant James P. Brown was not a bona fide purchaser for value, it is a well-settled rule that, if one with notice sells to one without notice, the latter is protected; or if one without notice sells to one with notice, the latter is protected, as otherwise a bona fide purchaser might be deprived of selling his property for full value. Code § 37-114; Collins v. Heath, 34 Ga. 443, 454.
3. Married women are as much bound by estoppel as other persons, and a wife is estopped as to an innocent purchaser for value where she has knowledge that property in which she claims an equity is being sold and remains silent until after the sale. Dotterer v. Pike, 60 Ga. 29, 30; Ford v. Blackshear Mfg. Co., 140 Ga. 670 (3) (79 S.E. 576); DeLoach v. Sikes, 169 Ga. 465 (150 S.E. 591). In this case the petition affirmatively shows that the plaintiff and her counsel knew that the property involved was being advertised for public sale on a specified date to satisfy three secured notes executed by her husband; that she made arrangements to buy the property in at the sale for the amount due G. A. Tye and sons; and that she refrained from bidding solely because of a representation which the defendant Blanks allegedly made to her counsel as to the amount due.
4. Where property is sold in accordance with a power of sale contained in an uncanceled security deed, but after the secured debt has been paid, a purchaser for value who has no knowledge of the fact that the secured debt has in fact been paid will be protected in his title. Garrett v. Crawford, 128 Ga. 519 (57 S.E. 792, 119 Am. St. Rep. 398, 11 Ann. Cas. 167); Ellis v. Ellis, supra; Phelps v. Palmer, 192 Ga. 421 (15 S.E.2d 503). As between the grantor and the grantee, a sale under the power when the debt has been satisfied is, of course, a fraud upon the grantor, and the grantee would be responsible to the grantor for whatever damages he sustained on account of the fraud thus perpetrated upon him, but an innocent purchaser at the sale will be protected in his title. Garrett v. Crawford, supra.
5. The petition alleges that the security deeds from Ralph N. Mathis to Fred Mathis and Emory J. Mathis were without consideration, dated back and made for the fraudulent purpose of defeating the plaintiff's right to alimony, but it is not alleged that the defendant Davis had any knowledge of this and it is well settled that a purchaser for value, without notice of fraud in the vendor's title, is protected as to the title he acquires. Collins v. Heath, supra; Ratteree v. Conley, 74 Ga. 153.
*228 6. As the petition shows, the defendant Davis, for a consideration of $4,375, received a deed from James P. Brown embracing all of the interest which the defendant Ralph N. Mathis previously owned in the property involved, and his status as a bona fide purchaser for value was not changed, as the plaintiff contends, because he, at the time of his purchase from Brown, also took a quitclaim deed from the defendant Ralph N. Mathis for the same land, paying him, according to a copy of the deed which is attached to the petition as an exhibit, a consideration therefor of $10. To charge that the defendant Davis was not a bona fide purchaser for value as to her, it was necessary for the plaintiff to allege in her petition that the defendant Davis had actual or imputable notice of her equity at the time of his purchase from Brown, and the fact that he took a quitclaim deed from her husband the grantor in the security deeds does not remotely amount to an allegation that he had notice or knowledge of any equity she had in the property at the time he acquired title to it. See Hammond v. Crosby & Co., 68 Ga. 767; Marshall v. Pierce, 136 Ga. 543 (71 S.E. 893); Moelle v. Sherwood, 148 U.S. 21 (13 Sup. Ct. 426). Nor was the plaintiff injured by the quitclaim deed, since the defendant Ralph N. Mathis was completely divested of all interest and title he had in and to the property when it was sold under the security deeds given by him.
7. In addition to the prayer for cancellation, the remaining prayers of the petition are: (1) that the defendants and each of them be enjoined from changing the status of the property which is the subject matter of this suit; (2) that a receiver be appointed to take charge of the property, insure it and preserve it pending a determination of the cause; (3) that equitable title to the property in question be decreed in the plaintiff; and (4) that she have such other relief as is equitable and just. By our preceding rulings we have held that the allegations of the petition are insufficient to show any right in the plaintiff to cancel the instruments placing title to the land in question in the defendant Davis; and this being true, it necessarily follows that the plaintiff is not entitled to any of the other relief prayed for. Hence, the petition failed to state a cause of action against the defendants Blanks and Davis, and the court did not err, as contended, in sustaining their general demurrers and dismissing the petition as to them.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2229731/ | 883 N.E.2d 1160 (2005)
354 Ill. App. 3d 1186
PEOPLE
v.
GADDIS.
No. 5-04-0214.
Appellate Court of Illinois, Fifth District.
February 25, 2005.
Aff'd & rem. with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262645/ | 306 A.2d 5 (1973)
STATE of Maine
v.
Bert SMITH, III.
Supreme Judicial Court of Maine.
June 12, 1973.
*6 Donald A. Spear, County Atty., Suzanne E. K. Smith, Asst. Atty. Gen., Bath, for plaintiff.
Hart & Stinson, by Ronald A. Hart, Roger R. Therriault, Bath, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
WEBBER, Justice.
At the October Term in 1971, a Sagadahoc County jury convicted the defendant of assault and battery, high and aggravated. Appellant seeks to raise two issues, the sufficiency of proof that the circumstances were high and aggravated, and the admissibility of certain evidence not objected to at trial.
It is apparent that appellant misinterprets our language in State v. Bey (1965) 161 Me. 23, 26, 206 A.2d 413, 416 wherein we said:
"Our statute is only declaratory of the common law, Rell, supra,[1] and the common law defines assault and battery of a high and aggravated nature `as an unlawful act of violent injury to the person of another, accompanied by circumstances of aggravation, such as the use of a deadly weapon, the infliction of serious bodily injury, the intent to commit a felony, great disparity between the ages and physical conditions of the parties, a difference in the sexes, indecent liberties or familiarities with a female, the purposeful infliction of shame and disgrace, resistance of lawful authority, or other aggravating circumstances.' 6 Am.Jur.2d, Assault and Battery, § 50." (Emphasis ours)
We have purposefully emphasized certain phrases for in these portions of the quoted text can be found the source of appellant's misconception. Appellant has seized upon the phrase "violent injury" which he equates with serious bodily harm. He then argues that since the victim in this case was fortunate enough not to suffer serious bodily injury, there is absent requisite proof of high and aggravated assault and battery. This argument completely overlooks the fact that the initial words, "an unlawful act of violent injury to the person of another," merely describe simple assault and battery. The words which describe how the assault and battery may become high and aggravated follow, introduced by the phrase, "accompanied by circumstances of aggravation."
We look first to the statute, 17 M.R.S.A., Sec. 201 which defines Assault and Battery in these terms:
"Whoever unlawfully attempts to strike, hit, touch or do any violence to another however small, in a wanton, willful, angry *7 or insulting manner, having an intention and existing ability to do some violence to such person, is guilty of an assault. If such attempt is carried into effect, he is guilty of an assault and battery. Any person convicted of either offense, when it is not of a high and aggravated nature, shall be punished * * *. When the offense is of a high and aggravated nature, the person convicted of either offense shall be punished * * *." (Emphasis ours)
In this context the word "violence" bears no relationship to the severity of the attack or the extent of resultant injury. The applicable law is correctly stated in the text of 6 C.J.S. Assault and Battery § 62, p. 917 as follows:
"The terms `violence' and `force' are synonymous when used in relation to assault, and include any application of force, even though it entails no pain or bodily harm. * * * The kind of physical force employed is immaterial. Any unlawful touching of the person of another is sufficient * * *."
Falconiero v. Maryland Cas. Co. (1960) 59 N.J.Super. 105, 157 A.2d 160, 162; People v. Flummerfelt (1957) 153 Cal.App.2d 104, 313 P.2d 912, 913. That this is the true meaning to be assigned to the use of the word "violence" in this statute is further supported by the conjunction of the phrase, "however small." Moreover, Bey lists "serious bodily injury" as but one of a number of circumstances which may characterize the assault and battery as high and aggravated. It should be noted that Bey is dealing with the totality of circumstances surrounding the act and purports to suggest some but by no means all of the circumstances which may properly impart the flavor to the unlawful act which renders it subject to the more severe punishment.
Our case law reveals several instances in which, without resultant serious bodily injury, the circumstances were deemed adequate to support a finding of "high and aggravated." State v. Rand (1960) 156 Me. 81, 161 A.2d 852 (indecent touching); State v. Thayer (1971-Me.) 281 A.2d 315 (intent to rob); State v. Weeks (1970-Me.) 270 A.2d 366 (firearm discharged at police officer).[2] The test is, then, whether the circumstances surrounding the principal fact, assault and battery, and so closely related thereto as to bear upon its "nature" are such as to warrant the greater severity of punishment permitted by the statute.
In the instant case it was proper for the jury to consider the evidence bearing upon the planning of the assault, the cutting of telephone wires to prevent notification to the police, the forcible breaking through a window into the dwelling house where defendant's wife and children were temporarily residing, his use of his baby as a hostage to enforce his will upon his wife and other occupants of the home, his threats to use the knife in his hand to kill his child if his commands were not obeyed, and the subsequent abandonment of the baby, aged two and a half months, at a place where it could readily have drowned or suffocated in mud and water. In the light of this evidence the jury would indeed have been remiss in its duty if it had not found this assault and battery upon a child to be of a high and aggravated nature. In so saying we again emphasize that we are considering the totality of circumstances. The determination of the severity of an assault and battery must of necessity be decided on a case by case basis. By enumerating the relevant facts which in combination produce the result in this case, we do not mean to suggest that all of these facts are equally probative of a high and aggravated "nature" or that any one of them, viewed in the light of other facts in another case, would necessarily produce the same result.
*8 Appellant contends that it was manifest error to admit evidence of the abandonment of the child. No objection was offered below and in fact much of the evidence was elicited in response to questions posed by defendant's counsel. But even over objection the evidence would have been admissible as bearing on the "nature" of the unlawful act. Here there was an unbroken chain of events culminating in the exposure of the victim of an assault to the peril of death or serious bodily harm. This is precisely the type of circumstance which is relevant to the quality of the unlawful act and the severity of punishment which it merits. Such evidence is always admissible to aid the jury in its determination as to whether or not "the offense is of a high and aggravated nature."
Appeal denied.
All Justices concurring.
NOTES
[1] Rell v. State (1939) 136 Me. 322, 9 A.2d 129.
[2] Certain separate offenses involving the use of firearms were created by P.L.1971, Ch. 539, effective Septembr 23, 1971. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1060120/ | 478 S.E.2d 295 (1996)
252 Va. 377
W.S. CARNES, INC., et al.
v.
BOARD OF SUPERVISORS OF CHESTERFIELD COUNTY, et al.
Record No. 960352.
Supreme Court of Virginia.
November 1, 1996.
*297 Bruce E. Arkema, Richmond (Cantor, Arkema & Edmonds, on briefs), for appellants.
Steven L. Micas, County Attorney (Jeffrey L. Mincks, Deputy County Atty.; Stylian P. Parthemos, Senior Asst. County Atty., on brief), for appellees.
Present: All the Justices.
*296 KEENAN, Justice.
The primary issue in this appeal concerns the validity of two ordinances which impose a $125 increase in the fee charged for new residential building permits.
The Home Builders Association of Richmond, Inc. (the Association), and W.S. Carnes, Inc., a Chesterfield County homebuilder (collectively, the builders), filed a motion for declaratory judgment against the Board of Supervisors of Chesterfield County (the Board), and William D. Dupler, the Chesterfield County Building Official. The builders sought an order declaring invalid two ordinances adopted by the Board, which imposed a $125 increase in the permit fee charged for all new residential construction.
In their motion for declaratory judgment, the builders contended that the ordinances violate (1) Code § 36-105, which authorizes a locality to charge building permit fees only to defray the cost of building code enforcement and related appeals; (2) Uniform Statewide Building Code[1] § 104.3, which states that building permit fees shall incorporate unit rates; and (3) Code § 15.1-37.3:9(B), which prohibits the direct or indirect use of building permit fee funds for the repair of residences damaged by moisture-related shrinking and swelling in soil having a high clay content.
The builders also alleged that the ordinances violate the "special laws" prohibition of the Virginia Constitution. Va. Const. art. IV, §§ 14 and 15. Finally, the builders contended that the revenue received from the ordinances exceed the County's costs of building code enforcement. The builders sought, among other things, entry of an order declaring the ordinances invalid.
During a bench trial, Dupler testified that in 1991, the Board became aware that many houses in the County had cracked foundations caused by the use of improper construction methods for building in soil having a high clay content. This type of soil is commonly referred to as "shrink/swell" soil. Dupler stated that special construction methods are necessary for building in this type of soil because the soil places greater than normal stress on foundations, since the soil expands when wet and contracts when dry. Dupler testified that the cracked foundations were evidence of possible violations of the Uniform Statewide Building Code (building code).
To address this problem, the Board directed the County Administrator to appoint a task force to work with the Building Inspection Department to develop a program which became known as the Citizen's Assistance Program, Phase I (CAP I). The Board enacted the CAP I program in 1993.
CAP I provided for an ombudsman to render "assistance to citizens in resolving shrink/swell soil [problems] and other construction related issues." CAP I also included a provision authorizing the hiring of legal *298 advisors to offer free advice to affected homeowners regarding their available legal remedies.
Under CAP I, homeowners who suspected that their houses had been constructed on "shrink/swell" soil could submit applications requesting the County to examine their house foundations. CAP I authorized the County to obtain the assistance of privately-employed engineers to work on these requests.
Dupler testified that the private engineering assistance was necessary because the County staff was unable to handle the large volume of homeowner requests for investigations. He also stated that his department did not have the necessary laboratory facilities to analyze the soil removed from the homeowners' building foundation sites.
Dupler further stated that, before he retained a private engineer to provide a foundation study of an existing house, his department would review the homeowner's CAP application to determine whether the house had foundation cracks. If Dupler noted conditions indicating a potential building code violation, he retained a private engineer on behalf of the County to determine the nature and extent of foundation damage due to "shrink/swell" soil. The engineer then prepared a report, for the homeowner and the County, detailing the extent of damage, the recommended repairs, and an estimated cost of repair.
Although Dupler testified that the reports frequently contained evidence of building code violations, he stated that his department had not instituted criminal enforcement actions because such actions would have been barred by the statute of limitations. However, Dupler used the engineering reports to determine whether a homeowner's proposed repair plans met building code requirements and, thus, qualified for the issuance of a repair permit.
The engineering assistance portion of CAP I was funded from the $125 increase in permit fees authorized by the ordinances. The ombudsman and legal advisor portions of CAP I were paid for out of the general fund and application fees, because these services were not part of the building code enforcement process.
The Board later terminated CAP I and adopted a program known as CAP II, which was limited to providing engineering assistance to the Building Official. Under CAP II, the private engineers hired by the County performed essentially the same functions as the engineers hired by the County under CAP I.
The engineers' reports did not contain any repair specifications and, therefore, could not be used by the homeowners' contractors to perform the necessary repair work. The homeowners were required to retain engineers at their own expense to draw foundation repair specifications, which were submitted to the County with their applications for building repair permits.
After the Building Official issued a repair permit, the homeowner's contractor performed the necessary repairs using the homeowner's repair plan. When the repairs were completed, the Building Official conducted a final inspection to determine whether the repairs had corrected the building code violation.
Like the engineering assistance provided by CAP I, the engineering assistance provided by Cap II was funded by the Board's adoption of an ordinance which increased by $125 the fee charged for new residential building permits. The balance of the permit fee was computed by use of a unit charge of $4.25 for each $1,000, or fraction thereof, of the estimated construction cost.
The trial court also received evidence concerning the builders' contention that the total permit fees exceeded the actual costs necessary to enforce the building code. Their allegations were based on the results of an audit of the Chesterfield Building Inspection Department (BID) commissioned by the Board. The audit, performed by the accounting firm of Coopers & Lybrand in December 1992, indicated that, between 1981 and 1992, BID's revenues exceeded its costs by almost $2,000,000.
The Board presented evidence that the Coopers & Lybrand audit did not include the total expenditures relating to building *299 code enforcement. Specifically, Dupler, James J.L. Stegmaier, the County's Budget Director, and Christine Zitzow, a cost accounting expert, testified that, in order to ascertain the true cost of building code enforcement, the enforcement-related costs of three other County departments needed to be added to BID's expenses.
The three departments, Utilities, Fire, and Environmental Engineering, review all building plans and perform building inspections for the Building Official relating to building code requirements that are within those departments' expertise. The cost of these reviews and inspections were not reflected in the Coopers & Lybrand audit because the audit included only BID budget documents. Stegmaier testified that the revenues received by the County from the building permit fees, including the increases authorized by the fee ordinances, were less than the total cost of building code enforcement in 1993 and 1994.
Finally, the evidence showed that the Association does not build houses in Chesterfield County and has not paid any building permit fees such as those at issue in this suit. The Association is a nonstock corporation, which functions as a trade association and has members who are homebuilders in Chesterfield County.
The trial court initially ruled that the Association had standing to bring this action "in a representative capacity." The court also sustained the County's demurrer to Count III, ruling that the ordinances in question were not special laws within the meaning of Article IV of the Virginia Constitution.
The trial court granted the defendants' motion in limine to exclude evidence of the Board's minutes taken at the time the ordinances were passed. The court stated that, because the fee ordinances adopted by the Board were unambiguous, an examination of the Board's legislative intent was not appropriate. After considering the evidence presented, the trial court held that the CAP ordinances were valid, and that the County did not charge building permit fees in excess of the cost of building code enforcement.
On appeal, we first consider the assignment of cross error raised by the Board and Dupler (collectively, the County), that the trial court erred in ruling the Association had standing to bring this declaratory judgment action. The County argues that the Association does not have any rights which are affected by the ordinances, and that the Association is not authorized by law to bring this action on behalf of its member builders.
In response, the Association argues that, as a nonstock corporation which operates as a trade association for the common benefit of its members, the Association has standing to bring this suit. The Association notes that its status as a nonstock corporation permits it to sue or be sued in its corporate name. See Code § 13.1-826. The Association further argues that the declaratory judgment statutes are remedial in nature and must be liberally interpreted. See Code § 8.01-191. Thus, the Association asserts that it is a proper party to this declaratory judgment action. We disagree with the Association.
A plaintiff has standing to institute a declaratory judgment proceeding if it has a "justiciable interest" in the subject matter of the proceeding, either in its own right or in a representative capacity. Henrico County v. F. & W., Inc., 222 Va. 218, 223, 278 S.E.2d 859, 862 (1981); Lynchburg Traffic Bureau v. Norfolk and Western Railway, 207 Va. 107, 108, 147 S.E.2d 744, 745 (1966). In order to have a "justiciable interest" in a proceeding, the plaintiff must demonstrate an actual controversy between the plaintiff and the defendant, such that his rights will be affected by the outcome of the case. See Code § 8.01-184; Cupp v. Board of Supervisors, 227 Va. 580, 589, 318 S.E.2d 407, 411 (1984).
Here, the Association has failed to demonstrate that it has any rights that will be affected by the outcome of this case. The Association does not build houses in Chesterfield County and has not paid any building permit fees for new residential construction. Thus, the Association has not shown that an actual controversy exists between it and the County.
*300 This conclusion is not altered by the fact that the Association purports to act in a "representative capacity" on behalf of its members. An individual or entity does not acquire standing to sue in a representative capacity by asserting the rights of another, unless authorized by statute to do so. See, e.g., Code §§ 8.01-69, 20-88.45, 37.1-141. Therefore, we conclude that the trial court erred in ruling that the Association had standing to bring this action. Nevertheless, since W.S. Carnes, Inc. (Carnes) paid several building permit fee surcharges to Chesterfield County, the present action remains viable based on the controversy existing between Carnes and the County. See Cupp, 227 Va. at 589-90, 318 S.E.2d at 411.
We next consider Carnes's argument that the trial court erred in sustaining the County's demurrer to Count III of the motion for judgment, which alleged that the fee ordinances violate "the prohibition against special laws contained in Article IV, Sections 14 and 15, of the Constitution of Virginia." Carnes argues that the issue whether the ordinances were special laws was a matter for proof at trial, not susceptible of disposition as a matter of law. We disagree.
A demurrer will be sustained if the pleading, considered in the light most favorable to the plaintiff, fails to state a valid cause of action. See Luckett v. Jennings, 246 Va. 303, 307, 435 S.E.2d 400, 402 (1993); Hop-In Food Stores, Inc. v. Serv-N-Save, Inc., 237 Va. 206, 209, 375 S.E.2d 753, 755 (1989). A demurrer tests only the legal sufficiency of a pleading, not matters of proof. Luckett, 246 Va. at 307, 435 S.E.2d at 402; Cox Cable Hampton Rds., Inc. v. City of Norfolk, 242 Va. 394, 402-03, 410 S.E.2d 652, 656 (1991). The facts admitted on demurrer are those expressly alleged in the motion for judgment, those which fairly can be viewed as impliedly alleged, and those which can be reasonably inferred from the facts alleged. Rosillo v. Winters, 235 Va. 268, 270, 367 S.E.2d 717, 717 (1988).
We conclude that the trial court properly sustained the County's demurrer, because the fee ordinances are general, rather than special, laws.[2] "A law is general though it may immediately affect a small number of persons, places or things, provided, under named conditions and circumstances, it operates alike on all who measure up to its requirements." Bray v. County Board, 195 Va. 31, 36, 77 S.E.2d 479, 482 (1953) (quoting Gandy v. Elizabeth City County, 179 Va. 340, 344, 19 S.E.2d 97, 99 (1942)). By contrast, a law is "special" in a constitutional sense when it contains an inherent limitation that arbitrarily separates some persons, places, or things from those on which, without such separation, it would also operate. Id. at 36-37, 77 S.E.2d at 482.
Here, the fee ordinances are general laws because, by their plain wording, they operate alike on any individual or entity who obtains a building permit for new residential construction. This result is not changed by Carnes's allegation in Count III that the underlying purpose of the fee ordinances was to benefit County residents who had sustained certain damage to their homes. The alleged purpose of the fee ordinances cannot change their content or effect.
Carnes next argues that the trial court erred in granting the Board's motion in limine and in excluding from evidence all minutes of the Board meetings, except actual motions, resolutions, ordinances, and the votes cast on those items. Carnes contends that the excluded minutes would have provided "a clearer understanding of the purpose and the intent" of the ordinances.
We conclude that the trial court properly excluded the proffered evidence of the Board's minutes. Generally, evidence of the Board's intent or motive in enacting ordinances is irrelevant to our consideration whether they are valid laws. As this Court stated in Blankenship v. City of Richmond, 188 Va. 97, 49 S.E.2d 321 (1948),
[c]ourts are not concerned with the motives which actuate members of a legislative *301 body in enacting a law, but in the results of their action. Bad motives might inspire a law which appeared on its face and proved valid and beneficial, while a bad and invalid law might be, and sometimes is, passed with good intent and the best of motives.
Id. at 105, 49 S.E.2d at 325 (citations omitted).
We next consider Carnes's arguments that the fee ordinances are invalid. The trial court's rulings were based on its application of the evidence to the three statutes cited by Carnes. Under Code § 8.01-680, the trial court's judgment will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it. Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 57, 419 S.E.2d 627, 630 (1992). Since the trial court heard the evidence ore tenus, its factual findings are entitled to the same weight as a jury's verdict. RF & P Corporation v. Little, 247 Va. 309, 319, 440 S.E.2d 908, 915 (1994). Thus, on appeal we examine the evidence in the light most favorable to the County, the prevailing party at trial, and determine whether the evidence supports the trial court's decision. See Ravenwood Towers, Inc., 244 Va. at 57, 419 S.E.2d at 630.
Carnes first contends that the fee ordinances violate Code § 36-105, which provides, in relevant part, that "[building permit] [f]ees may be levied by the local governing body in order to defray the cost of [building code] enforcement and appeals." During oral argument in this case, Carnes contended that such enforcement is limited to the criminal prosecution and appeal of building code violations. We disagree.
The Building Official has many duties, only one of which is to prosecute building code violations under USBC § 112.3. The Building Official is also charged with responsibility for examining all plans and applications for building permits (USBC § 105.6), issuing permits when satisfied that the proposed work conforms to building code requirements (USBC § 109.1), and conducting inspections to ensure compliance with the building code (USBC § 110.1). Under USBC § 103.3, the Building Official may delegate these duties and powers.
Here, the evidence showed that the engineering assistance funded by the fee ordinances was necessary to enable the Building Official to perform these enforcement-related duties. The ombudsman and legal services provided under CAP I also did not violate Code § 36-105 because those services were paid for out of the general fund, rather than from the permit fee increases. Thus, the trial court's finding that the fee ordinances do not violate Code § 36-105 is supported by the evidence.
We next hold that the record supports the trial court's finding that the fee ordinances do not violate USBC § 104.3, which provides, in relevant part, that "local government[s] shall establish a [building permit] fee schedule. The schedule shall incorporate unit rates which may be based on square footage, cubic footage, cost of construction or other appropriate criteria." The evidence showed that the County's building permit fees incorporate both the $125 flat fee and a unit rate of $4.25 for each one thousand dollars of estimated construction cost. This provision complies with USBC § 104.3, because that section requires only that the fee schedule incorporate unit rates, not that it be based exclusively on unit rates.
We also conclude that the record supports the trial court's finding that the fee ordinances do not violate Code § 15.1-37.3:9(B), which permits a local governing body to enact an ordinance authorizing the use of public funds to repair foundation failures caused by "shrink/swell" soil. The statute provides that public funds expended for this purpose shall be derived only from tax revenues from real and personal property, not from any special fee, assessment, or other tax or charge. The statute also states that localities "may not use fees collected for building permits ... directly or indirectly, for purposes authorized under this subsection."
The evidence showed that the engineering reports funded by the permit fees under the CAP programs were not used to repair foundation failures, but were used to help the *302 Building Official ascertain building code compliance during the various stages of the homeowners' repair efforts. Thus, the expended funds were not used, directly or indirectly, for purposes prohibited by Code § 15.1-37.3:9(B).[3]
Carnes next contends that the trial court erred in finding that the building permit fees did not exceed the cost of building code enforcement and appeals. Carnes relies on the results of the audit conducted by Coopers & Lybrand in support of its position. We disagree with Carnes's contention.
As stated above, the Coopers & Lybrand audit did not include all costs of building code enforcement, nor did the audit cover the time frame in which the CAP programs operated. Additionally, Stegmaier's testimony showed that building code enforcement costs for the years 1993 and 1994 had exceeded the building permit fees collected in those years. Thus, we hold that the evidence supports the trial court's ruling that the expenditures funded by the fee ordinances were rationally related to the cost of building code enforcement.
For these reasons, we will affirm in part, and reverse in part, the trial court's judgment and enter final judgment in favor of the County.
Affirmed in part, reversed in part, and final judgment.
NOTES
[1] The Uniform Statewide Building Code has been incorporated into Volume 13 of the Virginia Administrative Code (1996) at 5-60-10.
[2] Based on this conclusion, we do not reach the issue whether Va. Const. art. IV, §§ 14-15, is applicable to the passage of local ordinances.
[3] Based on this conclusion, we need not address Carnes's argument that, prior to the enactment of Code § 15.1-37.3:9(B) in July 1993, a local governing body did not have the authority to expend public funds to repair existing foundations damaged due to "shrink/swell" soil. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328424/ | 91 S.E.2d 589 (1956)
243 N.C. 619
STATE
v.
James Harold ROBERTS, Houston Duff and John Manley Sherrer.
No. 2.
Supreme Court of North Carolina.
February 29, 1956.
*590 Hamrick & Hamrick, Rutherfordton, for defendant appellant.
Atty. Gen. Wm. B. Rodman, Jr., Asst. Atty. Gen. T. W. Bruton, for the State.
WINBORNE, Justice.
Among the assignments of error presented by appellant on this appeal, the case on appeal shows that Number Three is based upon exception of like number. It is well taken. It relates to incident which occurred during the course of the trial, narrated as follows:
"During the course of his argument to the jury the Solicitor argued that the defendants had not put up any evidence to show that they were not present in North Carolina at Forest City on the night that Matheny Motor Company was robbed and that their mothers and fathers and brothers and sisters were not here in court to show where they were on that night and that none of their families were here to show that they were not in Forest City on that night. Defendants Objected to this course of arguments as prejudicial and *591 improper because no subpoenaes had been issued for anyone and there was no evidence that any of these men had families or fathers and mothers living.
"The court overruled the objection of the defendants and during the argument the Solicitor also stated in the presence of the jury that he had not said a word about the defendants not going on the witness stand themselves. To the ruling of the court in overruling their objection to the argument the defendants, in apt time, excepted."
In this connection, wide latitude is given to the counsel in making arguments to the jury. State v. O'Neal, 29 N.C. 251, 252. McLamb v. Wilmington & W. R. Co., 122 N.C. 862, 29 S.E. 894; State v. Little, 228 N.C. 417, 45 S.E.2d 542.
However, counsel may not "travel outside of the record" and inject into the argument facts of his own knowledge or other facts not included in the evidence. McIntosh N. C. P & P, p. 621. Perry v. Western North Carolina R. Co., 128 N.C. 471, 39 S.E.27; State v. Howley, 220 N.C. 113, 16 S.E.2d 705; State v. Little, supra; State v. Hawley, 229 N.C. 167, 48 S.E.2d 35; Cuthrell v. Greene, 229 N.C. 475, 50 S.E.2d 525.
And when the counsel does so, it is the right and, upon objection, the duty of the presiding judge to correct the transgression. State v. Little, supra, and cases there cited.
In the present case, the defendant having offered no evidence, the remarks of the Solicitor to which the defendant objects and excepts injected into the case evidence outside the case. Moreover, in speaking to the objection in argument before the Judge, the remark of the Solicitor to the effect "that he had not said a word about the defendants not going on the witness stand themselves," would seem to have added emphasis to the previous language to which the defendant objects.
Furthermore, the latter remark is calculated to infringe upon the rule that comment may not be made upon the failure of a defendant in a criminal prosecution to testify. This is forbidden by statute, G.S. § 8-54. See McLamb v. Wilmington & W. R. Co., supra, and numerous other cases.
For these reasons this Court is impelled to hold that, under the circumstances shown, the argument and remarks of the Solicitor were prejudicial to defendant, requiring intervention by the court. The record fails to show that the error was corrected. Hence there must be a new trial.
Finally, it is appropriate to say that while it appears upon the face of the record, by which this Court is bound on this appeal, that the jury, as hereinbefore recited, returned a verdict of guilty only as to the first count, that is, the count charging breaking and entering with intent to steal, judgment was pronounced on two counts, the one charging larceny, and the other charging breaking and entering with intent to steal. Nevertheless, since there must be a new trial as to appellant for reasons above stated, this matter, in so far as he is concerned, becomes immaterial.
Other assignments of error need not be considered.
New trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328423/ | 228 S.C. 588 (1956)
91 S.E.2d 267
AELMO C. WRENN, Appellant,
v.
GEORGE M. WRENN and A. EARL WRENN, Respondents.
17114
Supreme Court of South Carolina.
February 2, 1956.
*589 Messrs. Charles W. McTeer, and Hemphill & Hemphill, of Chester, for Appellant.
Messrs. Roddey & Sumwalt, of Rock Hill, for Respondents.
February 2, 1956.
STUKES, Justice.
Wrenn Brothers, a partnership at will, was composed of the appellant and the respondents, all of whom are brothers. The partnership agreement rested in parol and there was no provision for dissolution. The business grew in about ten years from a very small beginning into a relatively large plumbing and heating contracting business with contracts in several states which aggregated millions of dollars. Appellant and respondent, A. Earl Wrenn, were active as superintendents of construction while respondent, George M. Wrenn, was and is the office manager and he prepared and submitted bids on contracts.
*590 Dissatisfaction of appellant resulted in the commencement of this action on July 15, 1955, which is for dissolution of the partnership and appointment of a receiver to wind up its affairs. By the time of the last hearing in the lower court appellant and respondents were not on speaking terms. Testimony was taken by the court on August 31 and October 15, 1955, after which an order was entered on November 11, 1955, whereby the partnership was dissolved, quoting from the order, "as expeditiously as possible upon the winding up and the completion of all contracts incurred by the partners prior to August 31, 1955 and upon the termination by payment or otherwise of all liabilities and contingent liabilities." It was further ordered that during the period of dissolution respondent. George M. Wrenn, should manage the affairs of the partnership, quoting again from the order, "without the interference of (or?) hindrance of the plaintiff (appellant);" and that semi-monthly statements of receipts and disbursements should be furnished to each of the partners, with provision for compensation of them for their services and expenses. The order contained further provisions looking to liquidation of the partnership. The appointment of a receiver and order for the sale of assets were denied.
The exceptions impute error for failure of the court to appoint a receiver to wind up the affairs of the partnership and to order the immediate sale of the assets of the partnership which are not necessary to the winding up of its business.
The testimony of the respondent. A. Earl Wrenn, discloses that he had some time before sold his interest in the partnership to the respondent, George M. Wrenn, and that the two of them had formed a corporation of which they are the sole stockholders and that the corporation is using the airplane and other equipment of the partnership in new business of the same nature. To that extent it has succeeded to the partnership and the latter has not recently entered into new construction contracts. The corporation *591 has likewise taken over certain of the former employees of the partnership for all or part time, for which and for the use of the equipment of the partnership respondents are prorating the costs and expenses between the partnership and their corporation. Serious conflict of the interests of George M. Wrenn inevitably results. It is a unique situation and presents more than the usual problems which are attendant upon the dissolution of a partnership.
The effect of the order under appeal was to constitute the respondent, partner George M. Wrenn, receiver without bond, to liquidate the partnership, and to exclude from participation therein the appellant, who had an equal interest in the partnership until the acquisition by George M. Wrenn of the interest of A. Earl Wrenn, and appellant still owns one-third of the partnership assets. The inequity of the result under the facts stated is manifest and requires reversal. The court erred in the exercise of its discretion. A competent, disinterested and impartial person, or persons, should be appointed receiver, or receivers, to liquidate and distribute the partnership assets under the supervision of the court. Refusal of order of sale is affirmed. It should follow recommendation of the receiver or receivers, on which both of the remaining former partners are given opportunity to be heard, to the end that the claims of creditors and the interests of the partners will be protected. The partnership is dissolved by the unappealed provision of the order under review, and it will do business hereafter only to the extent necessary to complete its outstanding contracts and liquidate.
In the order under appeal and in the briefs there is no reference to the Uniform Partnership Act, Sec. 52-1 et seq. of the Code of 1952, of which Art. 6, Sec. 52-61 et seq., relate to "Dissolution or Winding Up." The act does not expressly mention receivership in dissolution but does refer to "dissolution by decree of court". Sec. 52-64, and Sec. 52-72 provides that any partner, quoting again, "upon cause shown, may obtain a winding up by the court." In *592 an article on the Act in 3 S.C. Law Quarterly 471, June 1951, Professor Coleman Karesh refers to the appointment of a receiver in litigation between partners as not uncommon in this state, and says: "Although receivership is a drastic course, allowed only under pressing circumstances and granted only with reluctance and caution, the degree of peril that must be present in the usual case * * * is not so great in controversies between partners. The feature of joint ownership in the partnership relation throws the remedy of receivership into a special class. * * * In most of the South Carolina cases the application for the receiver's appointment has been in connection with an action for dissolution and accounting. In some of them appears at least from the report of the cases nothing more than a statement that dissolution is sought because of irreconcilable differences or disputes between the partners; or nothing may appear as to the reason it is sought. In all of them, however, it is apparent that the Court proceeded upon the assumption that a partner's interest should not, over his protest, be placed in jeopardy by the use or control of the firm property by the other partner. The case for the appointment is all the more readily made out in actions for dissolution where a partner is missusing, wasting, mismanaging or misappropriating firm property; these are situations of great danger which certainly compel the Court to action." The author cites 4 Pomeroy Eq. Jur., 4th Ed., secs. 1333, 1498, to the effect that neither party (partner) should be allowed to have sole control against the wishes of the other.
In the following cases involving the dissolution of partnerships receivers were appointed by the court without question of the propriety, which, therefore, may be inferred: Jones & Parker v. Webb, 8 S.C. 202; Metz v. Commercial Bank, 45 S.C. 216, 23 S.E. 13; Wilson v. Wilson, 74 S.C. 30, 54 S.E. 227, and Kennedy v. Hill, 89 S.C. 462, 71 S.E. 974.
*593 The old case of Ellis v. Commander, 1847, 1 Strob. Eq. 188, involved the issuance of injunction against a partner to prevent him from disposing of partnership property, which consisted of slaves; and the court said: "A partner will frequently be restrained from intermeddling with the partnership effects * * * and if there be a necessity for it, a receiver will be appointed. * * * The principle on which the court acts is, to wind up the business of the partnership, adjust the accounts, and divide the profits." The decree in the earlier case of Higginson v. Air, 1795, 1 Des. 427, contained the following: "If the surviving copartner wastes the funds (of the partnership) this court would, on a proper application, protect the estate of his deceased copartner, by obliging him to give security, or will appoint a receiver."
In Lyles v. Williams, 96 S.C. 290, 80 S.E. 470; Id., 97 S.C. 373, 81 S.E. 659, judgment refusing the appointment of a receiver of partnership property, upon motion of one of the partners, was reversed, as here. Allen v. Cooley, 53 S.C. 414, 31 S.E. 634, subsequent appeal 60 S.C. 353, 38 S.E. 622, affirmed the contested appointment of a receiver of the property of a former partnership which was dissolved. Similarly the appointment of a receiver of partnership property was affirmed in Whilden v. Chapman, 80 S.C. 84, 61 S.E. 249.
There is a pertinent annotation in 23 A.L.R. (2d) 583. No general rule as to when a receiver will be appointed in partnership dissolution can be extracted from the decided cases except that it is discretionary with the court and the facts of the particular case at hand ought to govern. The editor concludes at page 587, as follows: "In a few jurisdictions such an appointment was formerly regarded as a matter of course, but a perusal of many cases leads to the conclusion that the trend has been toward a reticence on the part of the courts to appoint a receiver unless the particular circumstances render it advisable."
*594 Our Code of 1952, Sec. 10-2301 et seq., authorizes the appointment of receivers and contains statutory requirements to which this case is subject, including notice of application, Sec. 10-2302.
The judgment of the Circuit Court is modified to the extent indicated; and the case is remanded for the appointment of receiver, or receivers, by the court after notice to respondents, and for further proceedings consistent herewith.
TAYLOR, OXNER and LEGGE, JJ., concur.
JOSEPH R. MOSS. Acting Associate Justice, disqualified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328440/ | 93 Ga. App. 375 (1956)
91 S.E.2d 854
WILSON
v.
THE STATE.
36053.
Court of Appeals of Georgia.
Decided February 16, 1956.
J. Roy Rowland, Joe W. Rowland, Price, Spivey & Carlton, for plaintiff in error.
W. H. Lanier, Solicitor-General, contra.
*376 TOWNSEND, J.
1. A request to charge must be based on a principle of law applicable to the case, pertinent and legal in form. Rowland v. State, 90 Ga. App. 742 (2) (84 S.E.2d 209). The failure of the court to give the requested charge: "There must be shown by the State's evidence that the description in the indictment of the article alleged to be stolen is the proof produced from the witness stand to be the same, and the proof must show that the number is the same as charged in the indictment," contended to be error in the first special ground of the motion for a new trial, is not completely intelligible, and is accordingly not pertinent, apt and material. Under these circumstances, the failure to give the charge in the language requested was not error.
2. Special ground 3 is as follows: "Because it was error for the court to fail to properly poll the jury or to permit defendant's counsel to properly poll the jury as he had demanded.. . Upon demand to poll the jury, the court asked the foreman if they had reached a verdict, and the foreman replied `yes', and the verdict was then read in open court. Immediately and before the jury was dispersed the court told the clerk to call the first juror, whereupon counsel for the defendant repeated the verdict and asked the juror `was that your verdict?' Upon the answer, `yes', said counsel asked the juror: `Was it freely and voluntarily made?' With the answer, `yes', said counsel asked the juror the following question: `It is still your verdict?' Whereupon the court said: `Just wait a minute, I will poll the jury', and propounded to them the following question: `You heard the verdict read, was that your verdict?' The court asked no other questions, and the clerk called the names of each succeeding juror and the same question: `You heard the verdict read, was that your verdict' was asked by the court. . ." It is contended that this action deprived the defendant of his right to have the jury asked "Is this now your verdict?", which is a material right, for a juror may assent to a verdict in the jury room but, until the verdict is recorded, he may change his mind, and the defendant has a right to have him asked directly whether this has occurred.
In Cooper v. State, 103 Ga. 63, 65 (29 S.E. 439), it was held: "It is within the power of any juror, before leaving the jury-room, or even after coming into court, to recede from the verdict to which he has previously assented, at any time before it has become *377 too late to poll." There is no statutory authority for polling a jury, but it is a material right derived from the common law, under which a juror was, in open court, required to answer the question put to each individually: "Look upon the prisoner, you who are sworn. How say you? Is he guilty of the felony whereof he stands indicted, or not guilty?" Groves v. State, 162 Ga. 161 (132 S.E. 769). In Black v. Thornton, 31 Ga. 661 it was held, apparently under common-law principles, that the better form of question in polling is to ask: "Is that, or is it not, your verdict?" In Campbell & Jones v. Murray, 62 Ga. 87 (7) the question: "Did you consent to that verdict, and do you now consent?" was approved, and it was further held that a verdict must be set aside where a juror, on returning to the courtroom and being polled, states that he agreed to the verdict in the jury room but does not think it was exactly right, the court stating: "When one or more of the jurors cannot face the parties and the public with the finding, there should be further deliberation."
Under these authorities, it appears that the defendant had a right, on a proper poll, to have the jury individually questioned not only as to whether the verdict was the juror's verdict, but whether it is now his verdict. This right was denied the defendant, for which reason a new trial should be granted.
3. Of the remaining special grounds of the motion for a new trial, the ground assigning error on the failure of the court to direct a verdict will not be considered by this court, and the other ground is not likely to recur.
4. Assuming that the provisions of Code (Ann. Supp.) § 110-113 (Ga. L. 1953, Nov. Sess., pp. 440, 444) relating to the motion for judgment notwithstanding the verdict applies to criminal as well as civil cases (it not appearing that the legislature intended to restrict the motion to civil cases only) and further assuming that the motion denominated a "motion to set aside the verdict and judgment" is in fact a motion for judgment notwithstanding the verdict of guilty, it is without merit. The contention that the verdict is unauthorized by the evidence because the allegata and probata did not agree is not borne out by the evidence in the case. The rule of course is that where the motor number of the alleged stolen motor vehicle is alleged, the proof must show that the vehicle does in fact have that motor number and not some *378 other number. Wright v. State, 52 Ga. App. 202 (182 S.E. 862). Here the motor number alleged in the indictment is the same as that found on the vehicle in question to be the true number after the false or altered number was scraped off, according to the testimony of witnesses expert in that field. The fact that the record of certain purchase money notes and title-retention documents was by agreement admitted in evidence and that this evidence showed the vehicle as having a slightly different motor number would, at most, only raise a jury question as to whether the tractor recovered was the same one as that alleged to have been stolen from Cleve Rayford, the alleged owner. The evidence did not demand a verdict of acquittal, and the motion was properly denied.
The trial court erred in denying the motion for a new trial for the reasons set forth in the second division of this opinion.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328438/ | 212 Ga. 148 (1956)
91 S.E.2d 19
PHILLIPS
v.
HAYES.
19170.
Supreme Court of Georgia.
Argued November 15, 1955.
Decided January 9, 1956.
Quillian, Quillian & Thomas, for plaintiff in error.
R. F. Duncan, contra.
CANDLER, Justice.
On October 31, 1938, Mrs. Mittie Amelia Phillips, for a recited consideration of $5, conveyed to her mother, Mrs. M. Lebraska Hayes, 45 acres of land in Gwinnett County, Georgia. The grantee had the deed recorded on November 4, 1952. The grantor on December 12, 1952, brought a suit against the grantee to cancel it. Her petition in substance alleges that she and her mother jointly and equally acquired the land under the will of Melvin A. Corbin, who was the father of her mother; that she executed the deed because her mother stated to her that this was necessary to probate the will of her grandfather; and that she relied on the representation of her mother as being true, since she did not know the legal effect of a deed. The defendant's answer denied that she made the representation alleged in the petition, and averred that her father, Melvin A. Corbin, owed certain debts at the time of his death; that the plaintiff stated to her that she could have the plaintiff's interest in the land if the defendant would pay her grandfather's debts, and she accepted this proposition; that the plaintiff conveyed her interest in the land to the defendant, and the plaintiff at that time knew and understood the nature and effect of the deed she executed; and that, after the deed was signed and delivered to the defendant, she paid the debts of her father.
The following undisputed facts appear in the record: When the plaintiff executed the deed in question, she was 25 years old and had married about a year before the death of her grandfather. She had partly finished the eighth grade in school. The defendant had very little education, much less than the plaintiff. The deed in question was written by the plaintiff and witnessed by W. H. Freeman and W. M. Wages, a notary public, who was a relative of the parties to the deed. The witnesses to the deed died before the trial. The plaintiff testified that she was certain Mr. Wages would not be a party to any fraudulent act concerning her. After the deed was signed by the grantor, it was delivered to the grantee and has been in her custody since. The plaintiff and her husband rented the land in question from the defendant for three years immediately following the date of the deed, and paid one-half of the crops produced as rent. They moved away from the farm during the latter part of 1941, *149 and the defendant and her tenants have been in possession of it since then. The debts due by Melvin W. Corbin's estate were paid in full by the defendant. The plaintiff has known for several years that the defendant was claiming the land under the deed executed in 1938. The plaintiff testified: "I guess I was blind in trying to give the place to my mother."
At the close of all the evidence, the defendant moved for a directed verdict in her favor, on the ground that such a verdict was demanded by the evidence. The motion was denied. The jury returned a verdict in favor of the plaintiff. The defendant in due time moved for a new trial on the usual general grounds. Pursuant to an act which the legislature passed in 1953 (Ga. L. 1953, Nov.-Dec. Sess., p. 440), and within the time allowed thereby, she also moved for a judgment notwithstanding the verdict, and her motion was granted. The exception is to that judgment. Held:
Neither equity nor law will assist those who neglect to take care of themselves. Marshall v. Means, 12 Ga. 61 (5), 56 Am. D. 444; Smith v. Rogers, 144 Ga. 576 (87 S.E. 772). Equity will grant no relief to one who by the exercise of ordinary diligence could have prevented the injury complained of. Prince v. Friedman, 202 Ga. 136 (42 S.E.2d 434); King v. Rutledge, 208 Ga. 172 (65 S.E.2d 801). Equity requires diligence in the protection of one's own rights. Code § 37-211; Loyd v. Loyd, 203 Ga. 775 (48 S.E.2d 365). Equity favors the diligent and not those who sleep on their rights. Michael v. Poss, 209 Ga. 559 (74 S.E.2d 742). Equity will not aid in the enforcement of stale demands. Code § 37-119. In Lewis v. Foy, 189 Ga. 596, 601 (6 S.E.2d 788), this court said: "It is essential to all business relationships that the validity and solemnity of written contracts, freely and voluntarily executed, be upheld. held. It would be tragic if all such contracts were jeopardized by a rule of law that would permit one of the parties thereto, because of dissatisfaction therewith, to go into court and by oral testimony establishing conduct short of fraud and reasonable diligence obtain nullification of a written contract." Applying these well-established principles of law to the evidence in the instant case, it is clear to us that a verdict for the defendant was demanded by the evidence; and this being so, the trial judge correctly granted a judgment for the defendant notwithstanding a verdict in favor of the plaintiff.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262530/ | 306 A.2d 737 (1973)
Peter J. GARRETSON and Bank of Delaware, a corporation of the State of Delaware, as Trustee under a certain revocable living trust agreement executed June 16, 1967, with Cornelius D. Garretson, as Settlor, Defendants Below, Appellants,
v.
Jessie B. GARRETSON, Plaintiff Below, Appellee.
Supreme Court of Delaware.
May 23, 1973.
William H. Uffelman, Jr., of Theisen & Lank, Wilmington, for appellant Peter J. Garretson.
Charles F. Richards, Jr. and Allen M. Terrell, Jr., of Richards, Layton & Finger, Wilmington, for appellant Bank of Delaware.
Richard E. Poole, of Potter, Anderson & Corroon and Joseph Donald Craven, Wilmington, for appellee Jessie B. Garretson.
James M. Tunnell, Jr., Andrew B. Kirkpatrick, Jr., Paul P. Welsh and William H. Sudell, Jr., of Morris, Nichols, Arsht & Tunnell, Wilmington, for Wilmington Trust Company, Amicus Curiae.
WOLCOTT, C. J., and CAREY and HERMANN, JJ., sitting.
*738 WOLCOTT, Chief Justice:
These are appeals taken by the husband, defendant below, and Bank of Delaware, Trustee under a testamentary trust for the benefit of the husband, from orders of the Chancellor denying the Bank's motion to dismiss the wife's complaint and the husband's motion to vacate an order of sequestration, and granting counsel fees to the wife payable out of the trust funds. See Opinion below Wife v. Husband, Del. Ch., at 286 A.2d 256. Both the Bank of *739 Delaware and the husband urge substantially the same grounds for their motions. Wilmington Trust Company, appearing as Amicus Curiae, filed a brief in support of the two defendants' appeals.
The individual parties were married in 1943 and lived together until December 19, 1967, when the husband left the wife. In 1968, while the husband was still a resident of Delaware, the wife commenced a separate maintenance action in the Court of Chancery. Ultimately, the parties negotiated a settlement which was cast in the form of a separation agreement and incorporated by the Vice Chancellor in a final order of September 9, 1969. Under the terms of the settlement, the husband was required to pay the wife $400 a month. Shortly thereafter, the husband left Delaware and established a residence in the State of Florida, and obtained a divorce in the Republic of Mexico dated October 23, 1969.
Prior to these events, in September of 1968, the husband brought an action for divorce against the wife in Delaware on the ground of incompatibility. Ultimately, a decree nisi was denied. Then followed the separate maintenance action and the final order incorporating the separation agreement.
The husband has paid nothing to the wife since May, 1970. As a result, the wife brought a second action in the Court of Chancery, now before us, seeking a judgment against the husband for the amount of the arrearages and an order upon the Bank of Delaware, Trustee, to pay into Court the amount of any such judgment, and to make payments thereafter directly to her in compliance with the order entered in the separate maintenance action.
The amended complaint alleges that the husband is a resident of Florida, and is the beneficiary of a testamentary trust of which Bank of Delaware is Trustee, and from which he receives annual payments of about $18,000.
Jurisdiction over the Bank of Delaware was acquired by personal service. In order to obtain jurisdiction over the husband, now a resident of the State of Florida, the plaintiff obtained a sequestration order under which the income from the testamentary trust, payable to the husband, was seized in order to coerce his appearance in the Court of Chancery.
Bank of Delaware, Trustee, appeared and moved to dismiss the complaint, and the husband appeared specially, moving to vacate the order of sequestration. The husband has never been served personally with process of the Court of Chancery, nor has he appeared generally submitting himself to its jurisdiction.
The basic questions before us for decision are the validity of the sequestration of the income of the beneficial interest held by the husband in the testamentary trust, and the Chancellor's order allowing interim attorneys' fees and expenses to the wife's counsel out of the trust income.
Initially, we note that the husband and Bank of Delaware, Trustee, sought to bring into the case the marital status of the wife and the husband. Specifically, a certified copy of a divorce decree, issued in the Republic of Mexico, was offered and accepted in evidence without objection on the part of the wife's counsel. This purports to show that the husband and wife were divorced by the Court of the Republic of Mexico after the entry of the final order in the separate maintenance action. The Chancellor refused to consider this as before him under the present motions. We agree with the Chancellor for the reasons stated in the Opinion below.
We therefore consider that, for the purposes of the appeals before us, the record discloses solely that the individual parties are still husband and wife. Whether or not this status will remain after a final hearing is beside the point. We may not, on these appeals, consider any matters appearing outside of the complaint, the sequestration *740 order, and the motions addressed thereto.
The motion of the husband to vacate the sequestration order, and the motion of the Bank of Delaware, Trustee, to dismiss the complaint, are based fundamentally upon the proposition that the trust in question is a spendthrift trust, and under the terms of the trust instrument that is, the will the wife may not seek redress by the seizure of trust assets.
10 Del.C. § 366(a) provides, in part, that if a defendant in an action pending in the Court of Chancery is a nonresident, the Chancellor may order such nonresident defendant to appear on a certain day and, if he does not appear, compel his appearance "by the seizure of all or any part of his property, which property may be sold under the order of the Court to pay the demand of the plaintiff, * * *." The two appellants argue that the property sought to be seized under the Chancellor's sequestration order is not the subject of seizure in order to compel appearance.
The argument is based upon ITEM II of the will creating the trust which provides as follows:
"The interest of a beneficiary in the trust property or in the income therefrom shall not be subject to the rights of the creditors of such beneficiary and shall be exempt from execution, attachment, distress for rent, and all other legal or equitable process instituted by or on behalf of such creditors, and the interest of such beneficiary in the trust property or in the income therefrom shall be unassignable."
It is argued that the provisions of ITEM II of the will comply exactly with the provisions of 12 Del.C. § 3536 validating the inclusion of spendthrift trust provisions in a trust instrument. This section provides in part as follows:
"The creditors of a beneficiary of a trust shall have only such rights against such beneficiary's interest in the trust property or the income therefrom as shall not be denied to them by the terms of the instrument creating or defining the trust or by the laws of this State.... Every interest in trust property or the income therefrom which shall not be subject to the rights of the creditors of the beneficiary, as aforesaid, shall be exempt from execution, attachment, distress for rent, and all other legal or equitable process instituted by or on behalf of such creditors."
It is to be noted that both § 3536 and ITEM II of the will provide in terms that the trust property shall "not be subject to the rights of the creditors of [such] beneficiary, [and] shall be exempt from execution, attachment, distress for rent, * * * on behalf of such creditors * * *." The question thus presented is whether or not a wife, seeking support from her husband, is a creditor within the meaning of the word as it is used in § 3536 and in ITEM II of the will. If the wife is a creditor, then seizure of any of the trust assets on her behalf is prohibited by the terms of § 3536 and of ITEM II of the will. The Chancellor concluded that the wife was not a creditor in that meaning of the word, and we agree with that conclusion.
An action brought by a wife seeking separate maintenance from her husband who has deserted her is an attempt on her part to compel the performance of a duty imposed by law upon the husband to support his wife and dependents.
The weight of authority is to the effect that a wife seeking such relief is not a creditor and is not bound by the spend-thrift provisions of a trust from reaching the trust assets. 2 Scott on Trusts, § 157.1; Bogert, Trusts and Trustees, § 224 (2nd ed.); Griswold, Spendthrift Trusts, § 333 (2nd ed.); Levine v. Levine, 209 F. Supp. 564, Dist. of Del. (1962). A wife, under such circumstances, can hardly be a creditor who is defined as "one to whom a *741 debt is owing by another person who is the debtor", Black's Law Dictionary, Rev. 4th ed.
Bank of Delaware, Trustee, however, argues that the wife in the case before us is in fact a creditor seeking specific performance of a contract, viz., the separation agreement which was made a part of the final decree in the separate maintenance action. We think, however, to the contrary. We regard the wife's initial action for separate maintenance and the second action made necessary in order to seek compliance with the final order in the separate maintenance action as one piece of litigation and, in reality, the same lawsuit seeking support payments from the husband. To take any other view is to separate a whole into component parts which gives an entirely misleading appearance to the whole. This case is not unlike that of Cohen v. Cohen, Del.Supr., 269 A.2d 205 (1970), in which we held that successive actions, though different in form, were to be regarded as "one continuous piece of litigation". The same is true with respect to this case, and we regard it, as did the Chancellor, as a continuous piece of litigation seeking maintenance for a deserted wife.
Next, Bank of Delaware and the Amicus Curiae argue that dividends and interest which are held by a bank as Trustee cannot be sequestered by reason of 10 Del.C. § 3502 which provides in part as follows:
"All corporations doing business in this State, except banks, savings institutions and loan associations, are subject to the operations of the attachment laws of this State, as provided in case of individuals."
The argument is that equitable seizure by sequestration of assets is an attachment under the laws of this State and, since it is such, all banks are exempt from the attachment of such assets in their hands. It is, of course, true that the modern equitable procedure of sequestration under 10 Del.C. § 366, has been held to be analogous to foreign attachment at law. Sands v. Lefcourt Realty Corporation, 35 Del.Ch. 340, 117 A.2d 365 (1955). And in Provident Trust Co. v. Banks, 24 Del.Ch. 254, 9 A.2d 260 (1939), the Court of Chancery applied § 3502 to reject a claim for equitable execution against a judgment debtor.
We think the reference in the Sands case to the fact that sequestration by Chancery is analogous to foreign attachment at law had reference primarily to the procedure to be followed in both instances and in the ultimate relief sought by such process; that is, the compulsion upon a nonresident defendant to make a general appearance in the particular court. The Provident Trust Company case, we think, is distinguishable from the case at bar since that case was an attempt by a judgment creditor of a defendant, owning assets in the hands of a bank, to attach those assets. In point of fact, the Chancellor seems to limit his holding to the precise facts of the case since he speaks throughout in terms of a creditor's bill presented to collect a judgment.
10 Del.C. § 3502 exempts banks from the "Attachment Laws" of the State. The question is, therefore, whether the statutory remedy of sequestration in equity is an attachment law. 1 Del.C. § 303 lays down as a rule of statutory construction that technical words and phrases which have acquired a particular meaning in the law shall be so construed. And see Hollett v. Wilmington Trust Co., 6 W.W.Harr. 170, 172 A. 763 (1934). At the time of the enactment of the predecessor of § 3502 in 1871, the statutes regulating attachments at law were contained in 1852 Code Ch. 104, titled "Laws of Attachment", while the statutes regulating equitable attachments were contained in 1852 Code Ch. 95, titled "Laws of the Court of Chancery". It is thus plain that in 1871 the enactment of 14 Laws Ch. 90, exempting banks from attachment, had application only to attachment at law. There can be no doubt, *742 therefore, that in 1871 the phrase "attachment laws" had a settled meaning in the law and must be construed in the light of that meaning.
We conclude, therefore, that the seizure by sequestration of spendthrift trust income in the hands of a bank as Trustee at the suit of a wife seeking maintenance from a husband is not an attachment within the meaning of § 3502. The Chancellor so held, and we agree.
Finally, we turn to the question of the award by the Chancellor of interim attorneys' fees and allowances to the wife's attorneys. It is argued on behalf of the appellants that counsel fees may not be awarded in an action for specific performance of a contract. Generally speaking, this is true; however, the Chancellor held, and we have also held, that this litigation is not to be separated into its component parts, but is to be considered as one continuous piece of litigation which started off as a separate maintenance action. The award of counsel fees is therefore entirely proper. Again, this situation is almost the same as that which arose in Cohen v. Cohen, supra.
It is to be blinded by form to argue, as does the Bank, that the separate maintenance action came to an end by the entry of the final order incorporating the terms and provisions of the separation agreement, and that the second action brought to enforce that order must be regarded as an entirely independent and separate lawsuit unrelated to the separate maintenance action. This is to give substance a subordinate place to that of form, and this we refuse to do. We therefore affirm the award by the Chancellor of interim fees and costs to the wife's counsel. In line with our conclusion that the trust fund may be sequestered, we also approve the Chancellor's order that counsel fees be paid out of the trust income.
It of course remains to be seen, if the husband appears generally in this litigation and subjects himself to the jurisdiction of the Court of Chancery, whether, on final hearing, his contentions with regard to his Mexican divorce will be ultimately upheld, in which event we assume that the wife would lose her status as wife, and there may be an entirely different situation then facing the Chancellor. This question, however, is not before us, and we make no ruling upon the future outcome of the course of the litigation.
The judgment below is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262534/ | 452 Pa. 77 (1973)
Commonwealth, Appellant,
v.
Harmar Coal Company.
Commonwealth, Appellant,
v.
Pittsburgh Coal Company.
Supreme Court of Pennsylvania.
Argued May 25, 1972.
March 16, 1973.
*78 *79 Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY and NIX, JJ.
Stanley R. Wolfe, Special Assistant Attorney General, with him K.W. James Rochow and William M. Cross, Assistant Attorneys General, and J. Shane *80 Creamer, Attorney General, for Commonwealth, appellant.
Harold R. Schmidt, with him K. Leroy Irvis, Henry McC. Ingram, Edmund M. Craney, Michael W. Balfe, and Rose, Schmidt and Dixon, for appellee.
John D. Killian, Curtin Winsor, and Killian & Gephart, for Pennsylvania Environmental Council, Inc., Pennsylvania Federation of Sportsmen's Clubs, Inc., Pennsylvania State Council of Trout Unlimited and League of Women Voters of Pennsylvania, amici curiae.
Daniel J. Snyder, III, Regional Counsel, with him James J. Seeley, Assistant Regional Counsel, Jacob P. Hart, Director, Enforcement Division, The Environmental Protection Agency, Region III, for United States Environmental Protection Agency, amicus curiae.
OPINION BY MR. CHIEF JUSTICE JONES, March 16, 1973:
These appeals raise vital questions concerning the power of the Commonwealth's Department of Environmental Resources to control and eliminate water pollution. Although the procedural history of each appeal differs, both appeals raise similar legal issues and, therefore, are considered in one opinion.
On March 6, 1970, the Sanitary Water Board of the Commonwealth of Pennsylvania (Board) issued an adjudication and order denying Harmar Coal Company's (Harmar) application for a mine drainage permit approving the discharge of untreated acid mine drainage from the Indianola Mine. The Court of Common Pleas of Dauphin County, on August 20, 1970, reversed the Board's order and directed the Board to issue the permit. Sanitary Water Board v. Harmar Coal Co., 50 Pa. D. & C. 2d 627 (1970). The Board appealed to the Commonwealth Court.
*81 Pittsburgh Coal Company's (Pittsburgh) application for a mine drainage permit for the discharge of untreated acid mine drainage from its Hutchinson Mine was similarly denied by the Board on November 20, 1970. Unlike Harmar, Pittsburgh appealed directly to the Commonwealth Court.
On January 18, 1972, the Commonwealth Court filed separate opinions in both cases.[1] In Harmar Coal Co. v. Sanitary Water Board, 4 Pa. Commonwealth Ct. 435, 285 A. 2d 898 (1972), the Court adopted the lower court's opinion and affirmed the issuance of the permit. In Pittsburgh Coal Co. v. Sanitary Water Board, 4 Pa. Commonwealth Ct. 407, 286 A. 2d 459 (1972), the Court reversed the Board's refusal to issue the permit and directed the Department of Environmental Resources[2] to issue the permit as requested. We granted allocaturs.
The factual posture of these cases is set forth in detail in the Commonwealth Court opinions; for our purposes, a brief summary of the facts is sufficient. Adjacent to the Harmar Mine is the abandoned Indian-ola Mine. Although a coal barrier separates the two *82 mines, the accumulation of water in the Indianola Mine threatens the Harmar Mine and the safety of its miners: the accumulating water might create sufficient hydrostatic pressure against the barrier to cause it to give way and flood the Harmar Mine. In order to make its mine safe for operation, Harmar must pump 6.48 million gallons per day of untreated acid mine drainage[3] from the Indianola Mine and discharge it into the Deer Creek, a tributary of the Allegheny River. Pittsburgh's Hutchinson Mine is the last operating deep mine in a large coal basin. As a result of ground water accumulating in the abandoned mines, a large underground pool has formed in the basin. A barrier of coal separating the Hutchinson mine from the adjacent mines in the basin is unable to protect the Hutchinson Mine from intruding fugitive water as it travels to gravity discharges. In order to operate the mine Pittsburgh must discharge 3.44 million gallons per day of acid mine drainage including the 2.17 million gallons that finds it way into the Hutchinson Mine from the basin. In its application for a permit Pittsburgh proposed to treat only the 1.27 million gallons per day of acid mine drainage originating in the Hutchinson Mine. Both Pittsburgh and Harmar admit that the discharge contains iron and acid concentrations in excess of the maximum established by the Board.
The broad question presented is whether the Sanitary Water Board under the Clean Streams Law[4] can *83 require that Harmar treat the discharge of acid mine drainage purged from an adjacent, inactive mine and require that Pittsburgh treat its entire discharge from its Hutchinson Mine even though some of the drainage flows into its mine from adjacent inactive mines.
In order to understand and appreciate what the present Clean Streams Law intended to accomplish, the legislative history of acid mine drainage pollution control is enlightening. Prior to the enactment of the original Clean Streams Law (the Act of June 22, 1937, P.L. 1987), acid mine drainage had been specifically excluded from pollution control. (Purity of Waters Act of April 22, 1905, P.L. 260, § 4, and the Act of June 14, 1923, P.L. 793, § 1). Section 310 of the 1937 Act dealt specifically with acid mine drainage as follows: "The provisions of this article shall not apply to acid mine drainage and silt from coal mines until such time as, in the opinion of the Sanitary Water Board, practical means for the removal of the polluting properties of such drainage shall become known." (Emphasis added.) In the 1945 Amendments Section 310 was *84 modified by requiring the Board to protect certain clean waters by regulation, but permitted the continuing pollution of already polluted waters. As in the 1937 Act, except for the discharge into certain clean waters, acid mine drainage was to remain exempt from regulation until there was a practical means, in the Board's opinion, for treating the drainage.
In 1965, the Clean Streams Law was revamped. After many years of pollution, the Legislature, obviously prompted by increasing public awareness and technological advancements, articulated a stronger concern for the environment. A section was added which provided:
"Section 4. Findings & Declarations of Policy. It is hereby determined by the General Assembly of Pennsylvania and declared as a matter of legislative findings that:
"(1) The Clean Streams Law as presently written has failed to prevent an increase in the miles of polluted water in Pennsylvania.
"(2) The present Clean Streams Law contains special provisions for mine drainage that discriminate against the public interest.
"(3) Mine drainage is the major cause of stream pollution in Pennsylvania, and is doing immense damage to the waters of the Commonwealth.
"(4) Pennsylvania, having more miles of water polluted by mine drainage than any state in the Nation, has an intolerable situation which seriously jeopardizes the economic future of the Commonwealth.
"(5) Clean, unpolluted streams are absolutely essential if Pennsylvania is to attract new manufacturing industries and to develop Pennsylvania's full share of the tourist industry, and
"(6) Clean, unpolluted water is absolutely essential if Pennsylvanians are to have adequate out-of-door recreational facilities in the decades ahead.
*85 "The General Assembly of Pennsylvania therefore declares it to be the policy of the Commonwealth of Pennsylvania that:
"(1) It is the objective of the Clean Streams Law not only to prevent further pollution of the waters of the Commonwealth, but also to reclaim and restore to a clean, unpolluted condition every stream in Pennsylvania that is presently polluted, and
"(2) The prevention and elimination of water pollution is recognized as being directly related to the economic future of the Commonwealth." (Emphasis added.) In order to meet these objectives, Section 1 of the Act was amended to include acid mine drainage in the definition of "industrial waste." Thus Section 307 was made applicable, which provided, in part: "No person shall hereafter erect, construct or open, or reopen, or operate any establishment which, in its operation, results in the discharge of industrial wastes which would flow or be discharged into any of the waters of the Commonwealth and thereby cause a pollution of the same, unless such person shall first provide proper and adequate treatment works for the treatment of such industrial wastes, approved by the board. . . ."
In addition, Section 315(a) of the 1965 Amendments required the mine operator, as a condition of mining, to apply "for a permit approving the proposed drainage and disposal of industrial wastes . . .," and that, "the application shall contain complete drainage plans. . . ." Section 315(b) prohibited the operation of any coal mine without a permit and set forth the conditions under which a permit was not to be issued: "A permit shall not be issued if the board shall be of the opinion that the discharge from the mine would be or become inimical or injurious to the public health, animal or aquatic life, or to the use of the water for domestic or industrial consumption or recreation. In issuing a permit the board may impose such conditions as are necessary *86 to protect the waters of the Commonwealth. The permittee shall comply with such permit conditions and with the rules and regulations of the board." (Emphasis added.)
In 1970 the Act was again amended. Section 307 now reads in part: "No person . . . shall discharge or permit the discharge of industrial wastes in any manner. . . into any of the waters of the Commonwealth unless such discharge is authorized by the rules and regulations of the board or such person . . . has first obtained a permit from the department. . . ." Similarly, Section 315(a) now reads in part: "No person . . . shall operate a mine or allow a discharge from a mine into the waters of the Commonwealth unless such operation or discharge is authorized by the rules and regulations of the board or such person . . . has first obtained a permit from the department." It is clear beyond question that the 1970 Amendments extended the Board's control over mining to include regulation of all operations and discharges.[5]
Before determining the applicability of the present Clean Streams Law to the facts of these cases, we shall briefly review the Board's adjudications and the Commonwealth Court's decisions. In denying the applications of Pittsburgh and Harmar the Board applied Section 315 broadly in order to give effect to the "Findings and Declarations of Policy" in Section 4. In Harmar Coal, the Board concluded that it could regulate the discharge from the Indianola Mine since it was the operation of the Harmar Mine which resulted in the Indianola discharge. The Board read "discharge from the mine" to refer to "all drainage which flows out of, or is affected by the mining operation." Similarly in Pittsburgh Coal, the Board read "discharge from the *87 mine" to encompass "drainage caused by whatever source," and found that Pittsburgh had not demonstrated that the discharge of the fugitive water would not cause "pollution" to the "waters of the Commonwealth."
The Commonwealth Court, however, determined that the Board in both cases improperly applied the 1965 form of the Clean Streams Law. In Harmar Coal, the Court found that the Board erred in not deciding the case according to the guidelines set forth in the Pennsylvania Department of Health Mine Drainage Manual (formulated to aid mine operators in applying for mine permits)[6] and held that the Board's conclusion was contrary to the guidelines. Harmar Coal Co. v. Sanitary Water Board, 4 Pa. Commonwealth Ct. at 440-41, 285 A. 2d at 901. In addition, the Court held that the restrictions in the Clean Streams Law, applicable to coal mine operators, were clearly "limited to drainage discharged from the mine being worked," and not applicable to any discharge incidental to the mining operation regardless of whether it came from the mine or elsewhere. Id. at 441-42, 285 A. 2d at 901-02.
In Pittsburgh Coal, the Commonwealth Court was of the opinion that the Board erred in requiring Pittsburgh to treat "drainage caused by whatever source," and in finding that Pittsburgh had not demonstrated that the discharge of the fugitive water would not cause "pollution" to the "waters of the Commonwealth." Pittsburgh Coal Co. v. Sanitary Water Board, 4 Pa. *88 Commonwealth Ct. at 418, 286 A. 2d at 465. In reversing the Board's order, the Court held that the underground pool already "unclean" with "noxious and deleterious substances" was not intended to be termed as a "noxious and deleterious substance" itself, so as to be classified "pollution" as defined in Section 1 of the 1965 form of the Clean Streams Law. The intent of the Clean Streams Law was that "pollution occurs when noxious and deleterious substances are first discharged into any of the `waters of the Commonwealth,'" 4 Pa. Commonwealth Ct. at 420, 286 A. 2d at 466; therefore, the water from the underground pool, because it had been polluted while underground, could not itself pollute the surface water when it was discharged by Pittsburgh. The Court also held that Pittsburgh was not responsible for all discharges "caused by whatever source," and that, although the Clean Streams Law is concerned with the discharge of "industrial waste," which is defined in Section 1 of the 1965 and 1970 Amendments as including "mine drainage," the polluted water finding its way into the Hutchinson Mine and subsequently discharged into the surface waters was neither mine drainage nor any other type of industrial waste within the meaning of the Clean Streams Law.
We do not agree with the Commonwealth Court's interpretation of the Clean Streams Law in Harmar Coal. A careful analysis of Section 315 of the 1965 Amendments reveals that it is illogical to limit the meaning of "discharge from the mine" to "drainage discharged from the mine being worked." Section 315 also required that the application for a mine drainage permit contain "complete drainage plans." In Versailles Township v. Ulm, 152 Pa. Superior Ct. 384, 388, 33 A. 2d 265 (1943), the Superior Court held that a municipal improvement is not complete until it is free from deficiency and not lacking in any essential element: similarly, a mine drainage plan is incomplete where it *89 lacks an essential element. The pumping of the mine drainage from the Indianola Mine is essential to the safe operation of the Harmar Mine and is, therefore, a vital part of the complete drainage plan. Harmar indicated that it considered this pumping part of its operation when it applied for the permit. We do not believe that the Legislature intended Section 315 to apply only to discharges from the mine being worked when the same section requires the Board's approval of "complete drainage plans." Moreover, we agree with the dissenters below that the initial words of Section 315, "Before any coal mine. . ." (emphasis added), indicate that the Legislature intended the section to apply to any coal mine active or inactive.
It is even clearer from the 1970 Amendments that the Legislature intended that the pumping of mine drainage from an adjacent inactive mine to protect the operator's active mine be regulated by the Board. Section 315, as amended, provides that no one "shall operate a mine or allow a discharge from a mine" without a permit or contrary to the Board's rules and regulations: included in "operation of the mine" is "any other work done on land or water in connection with the mine." The pumping at the Indianola Mine is clearly work done on land in connection with the Harmar Mine and, therefore, part of that mine's operation.
We are also unable to accept the Commonwealth Court's rationale in Pittsburgh Coal. Water polluted underground can itself pollute the surface water into which it is discharged. Nothing in the Clean Streams Law justifies the Court's holding that pollution occurs only when polluting substances are "first discharged into any `waters of the Commonwealth,'" in this case the underground pool. Appellant argues, and we agree, that the critical and principal illegal conduct under the Clean Streams Law is the discharge into the surface waters. The Court below, however, failed to distinguish between pollution of waters, created by mining, *90 which remain underground and those waters which are discharged to the surface. In the Clean Streams Law and the Rules and Regulations thereunder, this distinction is crystal clear. Section 315 of the 1965 Amendments states that a permit would not be issued if in the Board's opinion the discharge from the mine would endanger the "public health, animal or aquatic life, or . . . the use of the water for domestic or industrial consumption or recreation." In the 1970 Amendments this language was deleted. Section 315 now prohibits discharges from mines unless the discharge is authorized by the Board's Rules and Regulations or the mine operator has first obtained a permit. Section 4, Article 900 of the Board's Rules and Regulations, by requiring plans or methods to "show how a pollutional discharge will be prevented from the mine after mining is completed," anticipates and allows the accumulation of polluted water in mine basins as long as it does not reach the surface waters.
We further believe the Commonwealth Court erred in its application of the definition of "industrial waste" and in defining "mine drainage." In holding that the discharge into the surface water of acid mine drainage originating in other mines was not "industrial waste" the Court stated: "[t]he diverting of this water from one natural course to another to enable an industrial pursuit does not make it `industrial waste' resulting from `industry'." 4 Pa. Commonwealth Ct. at 421, 286 A. 2d at 467. (Emphasis added.) The pumping of all the mine drainage from the Hutchinson Mine was necessary to and for the specific purpose of enabling Pittsburgh to conduct its mining operations. The discharge therefore, created by Pittsburgh's industrial pursuit of mining, was industrial waste.[7] To permit this discharge *91 to the surface and ignore its essential role in Pittsburgh's mining operation is to promote rather than abate pollution.
As to the definition of "mine drainage," we define it as waters which have been polluted as a result of the operation of a mine. The Commonwealth Court, however, was of the opinion that the fugitive water in this case was no longer mine drainage but rather "the natural flow of `waters of the Commonwealth'." We believe that, even though the fugitive water is included within the definition of "waters of the Commonwealth,"[8] it is still mine drainage. Mine drainage does not cease to be mine drainage once mining has ceased in the mine from which it continues to drain. The Court's reliance on the Act of December 15, 1965, P.L. 1075, 35 P.S. § 760.1 (1972-73 Supplement), was misplaced. Although this Act directs the Secretary of the Department of Mines and Mineral Industries to "initiate an immediate action program to correct pollution from abandoned deep and strip mines . . ." it does not permit a mine operator to discharge untreated acid mine drainage into the surface waters of the Commonwealth, contrary to the Clean Streams Law. It is directed at mines long closed at a time when operators of those mines might not even be known. Nothing in this act requires that the department take action to treat acid mine drainage that has found its way into an active mine and is subsequently discharged therefrom.
In Pittsburgh Coal, the Commonwealth Court admitted that the Clean Streams Law was capable of the *92 interpretation presented by the Board but was compelled to construe the law as it did because it believed the Commonwealth's interpretation was unconstitutional. 4 Pa. Commonwealth Ct. at 423, 286 A. 2d at 467-68. The Court held that the Board's interpretation constituted an unreasonable, arbitrary and oppressive exercise of the State's police power, since it denied Pittsburgh the use and enjoyment of its property, unless it treated the entire discharge. The Court was also unable to see any rational relationship between the evil sought to be remedied and Pittsburgh's use of its property as contributing to that evil. As to the constitutionality of the Board's interpretation in Harmar Coal, the Court relied on its holding in Pittsburgh Coal.
We disagree with the Commonwealth Court's analysis. There is no question as to the constitutionality of either the 1965 or 1970 forms of the Clean Streams Law as applied to these cases. A State in the exercise of its police power may, within constitutional limitations, not only suppress what is offensive, disorderly or unsanitary, but enact regulations to promote the public health, morals or safety and the general well-being of the community. Bacon v. Walker, 204 U.S. 311 (1907). This power has been used to prevent industrial practices in the use of private property which were injurious to the public. The Slaughter House Cases, 83 U.S. 36 (1872). The police power may even be exercised over property and current business operations, requiring the destruction of existing property, Miller v. Schoene, 276 U.S. 272 (1928), or the imposition of new costs, Queenside Hills Realty Co., Inc. v. Saxl, 328 U.S. 80 (1946); The Slaughter House Cases, 83 U.S. 36 (1872). Regulations maintaining the State's water resources have also been held to be within the scope of the police power. Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908); Commonwealth v. Emmers, 33 Pa. Superior Ct. 151 (1907), aff'd, 221 Pa. 298, 70 A. 762 (1908).
*93 The constitutional standards to apply in determining whether the police power was properly exercised were set forth in Lawton v. Steele, 152 U.S. 133, 137 (1894): "To justify the State in . . . interposing its authority in behalf of the public, it must appear, first, that the interests of the public require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals." In applying these standards a regulation must be measured by its "reasonableness," Goldblatt v. Hempstead, 369 U.S. 590 (1962). Debatable questions as to "reasonableness" are not for the courts but for the Legislature and therefore the presumption of reasonableness is with the State. Id. at 595-96 (citations omitted).
The dangers of acid mine drainage have been noted by the United States Congress, the Pennsylvania Legislature and by the courts. In Section 14 of the Water Pollution Control Act, 33 U.S.C. § 1151 (1970), Congress has provided for substantial federal grant assistance to help combat this problem. The Pennsylvania Legislature, in Section 4 of the 1965 Amendments, declared that acid mine drainage, as a major cause of stream pollution, was doing universal damage to the Commonwealth's waters. In United States v. Jellico Industries, 3 E.R.C. 1519 (M.D. Tenn. 1971), the court found that the drainage of acid mine water into a surface lake caused irreparable injury to the environment sufficient to support the granting of a permanent injunction against mining activities.[9] In addition, we cannot ignore Article I, Section 27 of the Pennsylvania Constitution, which provides: "Natural Resources and *94 the Public Estate The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people." There cannot be any doubt that an over-riding public interest in acid mine drainage pollution control does exist.
It is only logical that the way to eliminate pollution and reclaim the Commonwealth's waters is to eliminate or treat all the polluting discharges. We find no hardship in imposing the costs of pollution control upon Pittsburgh and Harmar who discharged acid mine drainage into the surface waters of the Commonwealth pursuant to a profit-making enterprise. This is not an extreme case where, in the interest of public health and safety, the owner is prohibited from using his property. Reinman v. Little Rock, 237 U.S. 171 (1915). Here the prohibition upon the enterprise of mining is not absolute, but only makes its operation more expensive.[10]See Pierce Oil Corp. v. City of Hope, 248 U.S. 498 (1919); The Slaughter House Cases, 83 U.S. 36 (1872). Therefore, a total treatment requirement would not be unduly oppressive or deny Pittsburgh and Harmar the use and enjoyment of their property.
With regard to the purported lack of relationship between the evil sought to be cured and the appellees' conduct, the Commonwealth Court failed to recognize the obvious nexus between the discharging of the acid mine drainage into the surface waters and the clear *95 legislative intent to not only prevent further pollution but also to restore and reclaim those waters presently polluted. As the dissenters below correctly observed, "it is the discharge of the polluted waters into the stream that is critical and not the source of the polluted waters." 4 Pa. Commonwealth Ct. at 426, 286 A. 2d at 469. It is even clearer in the language of Section 315 (a) of the 1970 Amendments that the Legislature was not concerned with the source of the polluted water for that section provides, in part, that "[n]o person or municipality shall operate a mine or allow a discharge from a mine. . . ." This Court, in Archbishop O'Hara's Appeal, 389 Pa. 35, 58, 131 A. 2d 587, 598 (1957), reaffirmed the long-standing notion that "the right to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right (citations omitted)." While Pittsburgh and Harmar may not be responsible for polluting all water, they certainly harm the Commonwealth by discharging that water into the surface waters.
The Commonwealth Court cited Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), as authority for holding the Board's interpretation of the Clean Streams Law unconstitutional. Mahon is clearly distinguishable. In Mahon the United States Supreme Court reviewed a statute that prohibited mining that caused the subsidence of human habitations or public streets. The coal company had conveyed the surface rights to its land but expressly reserved the right to remove the coal beneath the surface and the grantees expressly assumed the risk and waived all rights to damages that might arise from the coal company's mining. The Court held that the statute stretched the police power too far, resulting in a taking of the coal company's property under the Fourteenth Amendment and further ran afoul of the Impairment of Contract Clause of the Constitution. The Court reasoned that the statute had the effect of taking *96 or destroying the coal company's property for constitutional purposes by making it "commercially impracticable" for it to mine and emphasized that the owner of the surface had assumed this risk and refused to give them greater rights than they purchased.
In the case at bar, the Clean Streams Law only regulates the process to be used in gaining access to the coal and in no way makes coal mining impracticable. There is no existing arrangement between Pittsburgh and Harmar and either private parties or the State that gives them the right to discharge acid mine drainage into the waters of the Commonwealth. Here use of their property by Pittsburgh and Harmar is merely regulated, whereas in Mahon property was taken from one party and given to another. Finally, in Mahon there was a limited public interest in that the statute forbade mining only where the surface was owned by parties other than the owners of the coal. The Clean Streams Law, however, applies to all mining operations to protect the interest of the public.
It is argued that the refusal to grant a permit in these cases would result in an unconstitutional retroactive application of the present Clean Streams Law in that Pittsburgh and Harmar will be required to treat water polluted before the enactment of the relevant statute and polluted as a result of not only their own past acts but also the acts of other mine operators. We agree with the dissenters below, in Pittsburgh Coal, that this assertion is unfounded. The present Clean Streams Law does not attach liability for past operations which resulted in the pollution of the underground water. Pittsburgh and Harmar will only be responsible for the present pumping which results in a present discharge into the surface waters of the Commonwealth.[11]
*97 In order to avoid the valid requirements of the Clean Streams Law, it is urged that the Board erred in disregarding a set of guidelines adopted to aid applicants for mine drainage permits. These guidelines, entitled Guide-lines Regarding Mining in Areas Affected by Inactive Workings, were published by the Department of Health in its Mine Drainage Manual (2nd ed. June 1, 1966) and relied on by the Commonwealth Court in Harmar Coal. We need not discuss the applicabality of these guidelines to the facts of these cases since we agree with the dissent in Harmar Coal and consider them to be nothing more than statements of policy and not binding on the Board as rules and regulations.
The introductory paragraph to these guidelines reads in part: "1. To guide the staff and the mining industry it appears essential that the Board adopt general policies regarding mining in areas affected by inactive workings. Listed below are some of the situations which may occur and recommended Board policy covering." (Emphasis added.) These guidelines were to be nothing more than policy statements and not formal regulations: had the Board intended otherwise, it would not have failed to file these guidelines with the Department of State as is required by Section 21 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.21, in order for them to become effective as regulations. See Commonwealth v. Berlo Vending Co., 415 Pa. 101, 107 n. 4, 202 A. 2d 94, 97, n. 4 (1964). Although bound by a valid administrative regulation, United States ex rel. Caputo v. Sharp, 286 F. Supp. 516 (F.D. Pa. 1968), the Board is not bound to follow mere statements of policy. Aizen v. Pennsylvania P.U.C., 163 Pa. Superior Ct. 305, 316, 60 A. 2d 443, 449 (1948).
More important, we are not bound by rulings or regulations which are contrary to the governing statutes under which they are promulgated. Volunteer Fire-men's *98 Relief Association of City of Reading v. Minehart, 425 Pa. 82, 227 A. 2d 632 (1967); Commonwealth v. American Ice Co., 406 Pa. 322, 178 A. 2d 768 (1962). The Clean Streams Law properly requires treatment of the discharges in the present cases and, therefore, the guidelines, to the extent that they are contrary to the Clean Streams Law, are invalid.
Harmar makes two additional arguments that we shall briefly mention. First, Harmar asserts that the Commonwealth Court correctly concluded that the evidence was insufficient to support a number of the Board's findings of fact. A review of the record reveals that there was substantial evidence to support the first five findings of fact which are the crucial findings necessary to support the Board's conclusion of law that Harmar's discharge from the Indianola Mine can only be approved if it meets the Board's standards and does not pollute the receiving streams.[12]
Secondly, Harmar argues that the Board's action was deficient because there was no aquatic study made to determine if it was possible for aquatic life to survive in the water receiving the discharge from the Indianola Mine. Harmar believes, as did the Commonwealth *99 Court, that an aquatic study is a prerequisite to the denial of a drainage permit. We disagree. Section 1 of the 1945 Amendment provided: "`Pollution' shall be construed to mean noxious and deleterious substances rendering unclean the waters of the Commonwealth to the extent of being harmful or inimical to the public health, or to animal or aquatic life, or to the use of such waters for domestic water supply, or industrial purposes, or for recreation. The Sanitary Water Board shall determine when the discharge of any industrial waste, or the effluent therefrom constitutes pollution, as herein defined, and shall establish standards whereby and wherefrom, so far as reasonably practicable and possible, it can be ascertained and determined whether any such discharge does or does not constitute pollution as herein defined." (Emphasis added.) The definition of "pollution" in the 1970 Amendments is to the same effect. Pursuant to its legislative authority, the Board adopted standards to determine if a discharge constitutes pollution. Section 6, Article 900 of the Board's rules and regulations provides in part:
"Section 6. Discharge Limitations.
"A. (amended October 19, 1966) There shall be no discharge of mine drainage which is acid.
"B. There shall be no discharge of mine drainage, containing a concentration of iron in excess of seven milligrams per liter.
"C. The pH of discharges of mine drainage shall be maintained between 6.0 and 9.0." The latter was adopted by the Board only after the holding of a public hearing and reviewing treatment facility experiments conducted by the Department of Mines and Mineral Industries. The Board determined that the effluent standard, taking into consideration dilution by the receiving stream, would protect the beneficial uses of the receiving stream, and is within the capability of the industry, both technologically and financially. Harmar's *100 own data submitted to the Department of Health revealed that the iron concentration of the mine drainage discharged from the Indianola Mine was at times as great as 56 milligrams per liter, clearly in excess of the standards set forth in Section 6(B) of Article 900. Harmar does not attack the reasonableness of the regulation, but rather asks that we substitute our judgment, by requiring an aquatic study, for that of a body selected for its expertise whose experience makes it better qualified than a court to establish technical standards. This we will not do. In the absence of a purely arbitrary exercise of an agency's duties or functions "judicial discretion may not be substituted for administrative discretion." Blumenschein v. Housing Authority of Pittsburgh, 379 Pa. 566, 573, 109 A. 2d 331, 335 (1954). Our review is particularly restrictive where an administrative agency resolves complex questions of technology and finance. Flaherty v. Port Authority of Allegheny County, 450 Pa. 509, 299 A. 2d 613 (1973). The Board, having adopted standards of general applicability, need not also conduct aquatic studies in every instance to establish pollution.
Therefore, we conclude that the Clean Streams Law requires an operator of an active mine to treat the entire discharge from the active mine and a discharge from an adjacent inactive mine necessary to protect the active workings. Section 315 in both the 1965 and 1970 Amendments unambiguously uses the phrase "discharge from [the] mine." A strong indication that the Legislature intended the Act to apply to all discharges is found in the introduction to the 1965 Amendments where the Clean Streams Law was described as "[a]n act . . . extending and increasing penalties for the discharge of any industrial waste into the waters of the Commonwealth." It is evident from the Commonwealth's statement of policy in Section 4 of the 1965 Amendments, that no less than total treatment would be tolerated: *101 to repeat, Section 4 in part provides that: "It is the objective of the Clean Streams Law not only to prevent further pollution of the waters of the Commonwealth but, also to reclaim and restore to a clean, unpolluted condition every stream in Pennsylvania that is presently polluted. . . ." (Emphasis added.) In order to prevent further pollution and to reclaim and restore those surface waters presently polluted, any polluting discharge essential to the operation of a mine must be treated. If the operator of a mine need not treat these discharges, pollution will not end and the general public will be subjected to either the continued degradation of its surface waters or be forced to subsidize the coal industry by paying for treatment of this polluted water through its taxes. We are supported in our view by the statutory presumption "that the legislature intends to favor the public interest as against any private interest." Statutory Construction Act of May 28, 1937, P.L. 1019, § 52, 46 P.S. § 552. See Commonwealth ex rel. Shumaker v. New York and Pennsylvania Co., 367 Pa. 40, 53, 79 A. 2d 439, 446 (1951). The public interest is not served if the public, rather than the mine operator, has to bear the expense of abating pollution caused as a direct result of the profit-making, resource-depleting business of mining coal.[13]
The orders of the Commonwealth Court are reversed and the orders of the Sanitary Water Board are affirmed.
Mr. Justice MANDERINO took no part in the consideration or decision of these cases.
NOTES
[1] The Commonwealth Court voted three to two to permit the issuance of the permits in both cases. Judges WILKINSON and MANDERINO, having been specially assigned to the Dauphin County Court of Common Pleas and having participated in that court's decision in the Harmar case, did not participate in either of these cases when they were appealed to the Commonwealth Court. Judge MENCER, joined by Judge KRAMER, wrote dissenting opinions in both cases.
[2] The Sanitary Water Board was abolished by Section 30 of the Act of December 3, 1970, P.L. 834, creating the Department of Environmental Resources. "All orders, permits, regulations, decisions and other actions of . . . [the] board . . . remain in full force and effect" under Section 34 of the same act, however, "until modified, repealed, suspended, superseded or otherwise changed by appropriate action of the agency assuming the applicable powers and duties. . . ." Under Section 30(a), this agency is now the Department of Environmental Resources, and references hereafter made to the Board should be construed as now applicable to the Department of Environmental Resources.
[3] Acid mine drainage is polluted water. Pollution occurs in mine water as a result of iron and acid salts being dissolved in it. The iron and acid salts are formed on the surface of coal measure exposed to the mine atmosphere, and not the coal measure under water. The air causes pyritic material in the exposed coal to oxidize, forming iron and acid salts which are then washed into the mine water, causing pollution.
[4] Act of June 22, 1937, P.L. 1987, as amended by the Act of May 8, 1945, P.L. 435, 35 P.S. § 691.1 et seq. (herein sometimes referred to as the "1945 Amendments"); as amended by the Act of August 23, 1965, P.L. 372 (herein sometimes referred to as the "1965 Amendments"); as amended by the Act of July 31, 1970, P.L. 653, 35 P.S. § 691.1 et seq. (1972 Supplement herein sometimes referred to as the "1970 Amendments"). It appears that prior to the instant appeals only the 1965 form of the Clean Streams Law was applied. Since Section 20 of the 1970 Amendments provides "this Act shall take effect immediately," the applicable statute is the Clean Streams Law as amended by the Act of July 31, 1970, even though our result would be the same under the 1965 Amendments. The United States Supreme Court stated in Thorpe v. Housing Authority, 393 U.S. 268, 281 (1968), where there had been a change in a federal administrative regulation: "The general rule,. . . is that an appellate court must apply the law in effect at the time it renders its decision [citations omitted]." This rule has also been applied where the change is constitutional, United States v. Chambers, 291 U.S. 217 (1934); statutory, Carpenter v. Wabash R. Co., 309 U.S. 23 (1940); or judicial, Vanderback v. Owens-Illinois Glass Co., 311 U.S. 538 (1941).
[5] See, generally, Comment, Statutory Pollution Control in Pennsylvania, 16 Villanova L. Rev. 851, 865-894 (1971).
[6] The Department of Health was designated as the enforcement agent of the Sanitary Water Board. The Administrative Code, Act of April 7, 1929, P.L. 177, § 2109, 71 P.S. § 539. The Board, in Section 2(a) of Article 900 of its Rules and Regulations, designated the Department of Health as the "reporting agency" for bituminous deep mines and all anthracite mines. Pursuant to its delegated responsibilities the Department of Health published a "Mine Drainage Manual."
[7] The 1970 Amendments added the following to the definition of "industrial waste". "Industrial waste" shall include all such substances whether or not generally characterized as waste.
[8] Section 1 of the Clean Streams Law provides, in part: "`Waters of the Commonwealth' shall be construed to include any and all rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm sewers, lakes, dammed water, ponds, springs, and all other bodies or channels of conveyance of surface and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth."
[9] The costs and dangers of acid mine drainage are well documented in the Appalachian Regional Commission's Report, Acid Mine Drainage in Appalachia, H.R. Doc. 91-180 (91st Cong., 1st Sess. 1969).
[10] In testifying before the Board, Pittsburgh admitted that even if it should be required to treat the entire discharge, it would build the necessary facility and continue to operate the Hutchinson Mine.
[11] See, generally, Note, Pollution Control Under the Pennsylvania Clean Streams Law, 34 Univ. of Pitts. L. Rev. 115, 123-26 (1972).
[12] The Board's first five findings of fact are as follows:
"1. The applicant, Harmar Coal Company, operates a deep coal mine (the Harmar Mine) in Indiana Township, Allegheny County.
"2. In order to insure the safety of the workers in the Harmar Mine, the applicant pumps mine water from an adjacent inactive mine (the Indianola Mine).
"3. The applicant's discharge from the Indianola Mine enters Deer Creek, a tributary of the Allegheny River and is a discharge of approximately five million gallons per day containing an iron concentrate in excess of seven milligrams per litre, the maximum concentration allowed under Board standards.
"4. The discharge from the Indianola Mine results in an iron concentration in the receiving stream in excess of standards approved by the Board.
"5. The discharge from the Indianola Mine is polluting the receiving streams."
[13] See, generally, Comment, Survey The Commonwealth Court's Environmental Decisions, 76 Dick. L. Rev. 668, 684-690 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262535/ | 83 Cal.Rptr.2d 590 (1999)
71 Cal.App.4th 38
HOWARD CONTRACTING, INC., Plaintiff and Respondent,
v.
G.A. MacDONALD CONSTRUCTION CO., INC., Defendant, Cross-Complainant and Respondent;
City of Los Angeles, Cross-Defendant and Appellant;
Soil Retention Systems, Inc., Movant and Appellant.
No. B115886.
Court of Appeal, Second District, Division Seven.
December 21, 1998.
As Modified January 20, 1999.
Review Denied March 31, 1999.
*592 K. Martin White for Movant and Appellant Soil Retention Systems, Inc.
James K. Hahn, City Attorney, Jerome Montgomery, Assistant City Attorney, and James Patrick Nollan, Deputy City Attorney, Los Angeles, for Cross-Defendant and Appellant City of Los Angeles.
Irwin Chasalow for Plaintiff and Respondent Howard Contracting, Inc.
Monteleone & McCrory, LLP, Patrick J. Duffy and G. Robert Hale, Los Angeles, for Defendant, Cross-Complainant and Respondent G.A. MacDonald Construction Co., Inc.
ROLAND, J.[*]
SUMMARY
A general contractor on a public works construction project is permitted by statute to recover damages arising out of delays attributable to a municipality's acts or omissions, notwithstanding the municipality's status as a charter city and a clause in the contract precluding an award of damages for delay. Further, a subcontractor on the project who seeks to prosecute a claim for delay damages on a pass-through basis has standing as an aggrieved party to appeal and is entitled to offer evidence to support the claim.
BACKGROUND
I. PROJECT
This case arises out of a public works contract relating to a construction project to rehabilitate the Venice Canals located in Los Angeles. The project consisted of improving the existing canal system by removing material from the canals and constructing soil retaining walls along the banks of the canals.
The project was owned and designed by the City of Los Angeles. Following a formal bidding process, G.A. MacDonald Construction Co., Inc. was awarded the general contract on the project. MacDonald Construction subcontracted portions of the work to two other contractors, Howard Contracting, Inc. and Soil Retention Systems, Inc. (formerly Loffel Retaining Walls, Inc.). Howard Contracting was responsible for clearing debris from the canals, excavating material from the sides and bottom of the canals, and earth grading and filling on the project site. Following the completion of excavation operations and earthwork activities, Soil Retention Systems was required to provide and install retaining walls to stabilize the banks of the canals.
In order to proceed with work on the project, the City was required to obtain permits *593 from various regulatory agencies, including the California Coastal Commission, United States Army Corps of Engineers, and California Regional Water Quality Control Board.
II. UNDERLYING CLAIMS
MacDonald Construction asserts claims against the City for cost overruns and damages attributable to the City's acts and omissions relating to the project. The claims assert that the acts and omissions constituted breaches of the City's obligations under the contract.
The project was subject to a competitive bidding process, and was to be constructed according to contract documents prepared by the City and furnished to bidders. Additionally, the Standard Specifications for Public Works Construction were incorporated into the project. In September 1991, the City solicited competitive bids for the construction of the project, which were to be submitted on October 30,1991.
MacDonald Construction contends that during the bidding process the City failed to disclose known material information to bidders concerning pending regulatory agency restrictions on the project and anticipated difficulties with respect to timely completion of project work. According to MacDonald Construction, the City was aware that the pending restrictions and anticipated difficulties would adversely impact the cost of performance and the required time to perform the work.
A. Restriction On Disposal Of Excavated Material
MacDonald Construction asserts that prior to October 1991, the Regional Water Quality Control Board informed the City that soil tests revealed contamination in the material subject to excavation from the Venice Canals. As a result, the Board advised the City that the contaminated material could not be removed from the project site to an unclassified landfill, and directed the disposal of the material in a Class III landfill or other special landfill. Despite the City's receipt of such information, the soil contamination report sent by the City to bidders on October 16, 1991 concluded that "special handling or stockpiling of the excavated material is not deemed necessary." The report also stated the excavated material could be removed to any unclassified landfill. Other bidding documents likewise failed to inform bidders that a special disposal site would be required for the excavated material. Moreover, supplemental information provided to bidders indicated that no special requirements would be imposed for handling and disposing of the excavated material.
B. Restriction On Access To Work
MacDonald Construction maintains that before soliciting bids on the project, the City was aware that federal agencies intended to impose restrictions on the project which prohibited construction from April 1 to September 30 to avoid adversely impacting the nesting season of the least tern migratory bird. Despite knowledge of the pending restrictions, the City's bidding documents did not inform the bidders of any restrictions upon the time for performing the work.
On October 10, 1991, the City supplemented the notice to bidders informing them: "The construction stages may be interchanged to suit the requirements of any permitting agency or as directed by the City." However, the supplemental notice did not inform bidders that the City's reservation of the right to interchange the stages was due to the prohibition of work during the April 1 through September 30 nesting season. Additionally, the contract documents did not specify time restrictions for performing work on the canals, nor did the City inform bidders that one stage of the work could be performed only during the rainy winter season.
C. Contract, Permits And Performance
MacDonald Construction claims it was ignorant of the prohibition against the disposal of excavated material in an unclassified landfill and the anticipated difficulties resulting from the least tern restrictions when it prepared and submitted its bid on October 30, 1991. It fully expected to be able to perform work on the canals before the 1992 rainy *594 season and to complete the work prior to the contract completion date.
When the bids were submitted in late October 1991, the City had not yet obtained any permits from regulatory agencies authorizing performance of the work. Subsequently, on November 14,1991, the California Coastal Commission issued a permit. However, the permit prohibited work in a portion of the canals from April 1 through September 30 in order to protect the least tern.
On January 17, 1992, the City awarded the construction contract to MacDonald Construction based upon its submission of a low bid. On February 14,1992, the City issued a notice to MacDonald Construction to proceed with work on the project.
Due to the requirement of removing excavated material to an alternate site, the City suspended excavation operations until an acceptable disposal site was located. On June 12, 1992, four months after MacDonald Construction was directed to proceed with the work, the Regional Water Quality Control Board issued a permit authorizing disposal of excavated materials at the Port of Los Angeles. Thereafter, MacDonald Construction and its subcontractors learned about the restrictions on site access due to least tern migration.
According to MacDonald Construction, the undisclosed restriction upon disposal of excavated material, the City's failure to timely obtain a permit to dispose of excavated material, and the suspension of the excavation work delayed commencement of critical work on the project for four months. Further, as a result of the undisclosed access restrictions, MacDonald Construction claims it was compelled to perform rehabilitation work during the rainy winter season, and unfavorable weather conditions adversely impacted productivity and delayed completion of work for an additional four months.
Except for the City's failure to timely procure a permit to dispose of the excavated material and to provide unlimited access to the work site due to the least tern restrictions, MacDonald Construction contends it would have been able to perform and complete the work within the original time frame. Due to the City's acts and omissions, however, MacDonald Construction claims project completion was delayed eight and one-half months, causing it and its subcontractors to incur extra costs in performing the work and extended project overhead for the period of the delay.
III. LITIGATION
Howard Contracting initiated litigation by filing a complaint against MacDonald Construction and the City to recover damages for delay and disruption. MacDonald Construction cross-complained against both Howard Contracting and the City. The cross-complaint against the City alleged causes of action for breaches of contract, implied covenant, implied warranty and changed conditions clause, and sought to recover extra costs and damages incurred by MacDonald Construction and its subcontractors for delays and disruptions allegedly caused by the City's various breaches. Mac-Donald Construction and Howard Contracting subsequently settled their dispute. Only the causes of action for breaches asserted against the City were litigated.
In advance of trial, MacDonald Construction, Howard Contracting and the City stipulated that retired Superior Court Judge George M. Dell would hear the trial under a Code of Civil Procedure section 638 general judicial reference.
The trial commenced on September 3, 1996. Following the presentation of evidence and submission of written arguments, the referee issued a Statement of Decision on July 17, 1997. The referee found that the City failed to disclose material information to MacDonald Construction and its subcontractors concerning project restrictions and difficulties, failed to timely obtain construction permits from regulatory agencies, and failed to provide access to the work site. The statement determined that the City's acts and omissions constituted breaches of the contract, the implied warranty of correctness of plans and specification, and the implied warranty of cooperation. As a result of the breaches, the referee concluded MacDonald Construction and Howard Contracting sustained damages of $1,165,990.50, plus further *595 interest until July 1, 1997 of $503,859.87, plus further interest from July 1, 1997 until the date of judgment of $11,177.25. The Statement of Decision, however, specifically determined Soil Retention Systems was not entitled to recover damages on the pass-through claim asserted on its behalf by MacDonald Construction.
After hearing various posttrial motions and a motion for entry of judgment, Judge John P. Shook entered judgment on August 5, 1998 in accordance with the referee's Statement of Decision. These appeals followed.
IV. APPEALS
In its appeal, the City urges reversal of the judgment on the grounds of immunity from liability for any delay damages caused by the alleged misrepresentations and breaches of contract, MacDonald Construction and Howard Contracting's failure to prove delay damages, and MacDonald Construction's obligation to discover the City's misrepresentation and failure to establish a changed condition.
Soil Retention Systems' appeal is based upon the trial court's denial of a motion to vacate a judgment that allegedly precluded its recovery of delay damages on a passthrough basis.
STANDARD OF REVIEW
The trial court's factual determinations are reviewed under the substantial evidence standard and are not disturbed if supported by substantial evidence. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 45 P.2d 183.) Issues concerning the application of statutory authority present questions of law subject to independent review of the trial court's rulings. (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 258 Cal. Rptr. 721.) Finally, issues relating to the exercise of discretion on a motion to reopen a case are subject to an abuse of discretion standard. (Shimpones v. Stickney (1934) 219 Cal. 637, 642, 28 P.2d 673.)
DISCUSSION OF THE CITY'S APPEAL
I. PUBLIC CONTRACT CODE PEMITS RECOVERY OF DELAY DAMAGES
A. "No Damage For Delay" Clause Does Not Preclude Recovery.
The City argues that Public Contract Code section 7102 does not invalidate the "no damage for delay" clause contained in the contract between MacDonald Construction and the City, and the clause operates to bar MacDonald Construction and its subcontractors from recovering delay damages.
The contract between the City and Mac-Donald Construction contains a limited "no damage for delay" clause. Under subseetion 6-6.1 of the Standard Specifications of the contract, a contractor is entitled to an extension of time to complete work delayed by unforeseen events, but not to damages attributable to the delay. Subsection 6-6.3, however creates an exception to the "no damage for delay" provision, specifically providing for payment for unreasonable and unanticipated delays caused by the public agency.
Public Contract Code section 7102 permits a contractor to recover delay damages, provided the "delay is unreasonable, and not within the contemplation of the parties." Further, damages are recoverable in spite of a "no damage for delay" provision contained in a public agency contract. (California Construction Disputes (2d 3d.1990) § 4.29, p. 277.)
Notwithstanding the provisions of section 7102, the City contends the "no damage for delay" clause in the contract operates as an express and enforceable waiver by Mac-Donald Construction of any remedy for construction delay other than an extension of time to complete work provided under subsection 6-6.1. Section 7102, however, specifically prohibits public agencies from requiring "the waiver, alteration, or limitation of ... applicability of [the provisions and renders] [a]ny such waiver, alteration, or limitation... void." Even before the adoption of section 7102, California courts generally held that "no damage for delay" clauses in public contracts did not apply to delays arising from a breach of contract caused by the other *596 party to the contract. (Hawley v. Orange County Flood Control etc. Dist. (1963) 211 Cal.App.2d 708, 27 Cal.Rptr. 478; McGuire & Hester v. City and County of San Francisco (1952) 113 Cal.App.2d 186, 247 P.2d 934; Milovich v. City of Los Angeles (1941) 42 Cal.App.2d 364,108 P.2d 960.)
The referee's Statement of Decision found the City was responsible for the delays on the project. The evidence before the trial court establishes the City's responsibility, and the sufficiency of the evidence to support the finding has not been challenged. Before the bids were submitted, the City was aware regulatory agencies intended to impose restrictions on the disposal of excavated material and on project access. However, the City not only ignored the restrictions in designing the project and preparing project plans and specifications, but concealed information about the restrictions from bidders. Owing to the City's concealment and nondisclosure of information, the bidders could not and did not address the potential impact of the restrictions in their bid submission documents. When the bids were submitted and the contract was awarded, neither Mac-Donald Construction nor its subcontractors contemplated the delays that occurred.
The City was also responsible for obtaining project permits. Even after the disposal restriction was disclosed, commencement of critical work on the project was delayed due to the City's failure to timely secure a permit from the Regional Water Quality Control Board to dispose of the excavated material.
The rule is well settled that in every construction contract the law implies a covenant that the owner will provide the contractor timely access to the project site to facilitate performance of work. When necessary permits relating to the project are not available or access to the site is limited by the owner, the implied covenant is breached. (D.A Parrish & Sons v. County Sanitation District (1959) 174 Cal.App.2d 406, 344 P.2d 883; Hensler v. City of Los Angeles (1954) 124 Cal.App.2d 71, 268 P.2d 12.) The trial court found the delays were caused by the City's breaches of contract and implied covenant in failing to disclose known restrictions on project performance, to obtain necessary permits, and to provide timely access to perform the work. Those findings render the "no damage for delay" provision in the contract inapplicable. Moreover, subsection 6-6.3 of the Standard Specifications expressly authorizes compensation for delay damages where, as here, basis exists for concluding that the delays were unreasonable and not within the contemplation of the parties.
B. Charter City Status Does Not Provide Exemption From Application Of Public Contract Code.
Despite the application of Public Contract Code section 7102 to public agency contracts and the City's status as a public agency, the City asserts section 7102 is inapplicable because of Los Angeles' status as a charter city. The City argues that charter city status renders it immune from state statutes regulating contracts inasmuch as a public works contract is a municipal matter that falls under the "home rule" doctrine.
The "home rule" doctrine grants precedence to a city charter or municipal enactment over a conflicting state statute purporting to regulate a municipal matter. (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 283 Cal.Rptr. 569, 812 P.2d 916.) Although a charter city enjoys the exclusive power to legislate municipal matters under article XI, section 5 of the California Constitution, the "home rule" doctrine applies only when a subject matter conflict exists between a charter or other municipal enactment and a state statute.
In California Federal, the Supreme Court established a test to determine whether the state has infringed upon a charter city's sovereignty under the "home rule" doctrine. (Id. at 16-18, 283 Cal.Rptr. 569, 812 P.2d 916.) Under the first prong of the test, the existence of an actual conflict between a state statute and a local measure must be ascertained. Once a conflict is found to exist, a further determination must be made whether the subject matter of the statutory enactment is more properly characterized as a local or statewide concern.
*597 In this case, the purported conflict with a provision of a state statute does not relate to a charter provision or municipal enactment, but to a "no damage for delay" clause contained in the Standard Specifications of the contract between MacDonald Construction and the City. Because the City fails to establish a conflict between the Public Contract Code and any charter provision or municipal enactment, section 7102 applies. As a consequence, the contract clause purporting to exempt the City from liability for damages resulting from delays caused by the City is unenforceable under section 7102.
C. Critical Path Method Schedule Is Not Required To Prove A Delay Damages Claim
The City maintains that Mega Construction Co., Inc. v. United States (1993) 29 Fed. CI. 396 requires a contractor to use a computer-generated network diagram schedule, known as a critical path method schedule, to establish a claim for construction delay damages. Because MacDonald Construction failed to utilize such a schedule, the City asserts project delay damages are not recoverable.
Under a federal government construction project, delays that prolong activities of a project falling along a critical path may be compensable. Mega Construction held that a contractor's entitlement to delay damages requires the presentation of evidence that establishes the critical path of a project and the occurrence of delays along the path. In that case, the contractor's ineffective use of a bar chart at trial failed to identify the critical path or to demonstrate that compensable project delays occurred on the path. While critical of the specific evidence upon which the contractor relied in presenting its claim, Mega Construction does not stand for the proposition that use of a critical path method schedule is required to establish the occurrence of compensable project delays. Even if the case did stand for such a proposition, federal decisional authority is neither binding nor controlling in matters involving state law. (9 Witkin, Calif. Procedure, Appeal, § 943.)
Under the circumstances, MacDonald Construction was not required to use a critical path method schedule to establish the critical path delays in the Venice Canals project. Unlike the bar chart utilized in Mega Construction, MacDonald Construction's bar chart schedule was based on a critical path method analysis. The bar chart schedule used here identified the project's critical path and demonstrated that the delays constituted critical path delays.
D. Undisclosed Expert Cannot Offer A Contrary Opinion
The City asserts the trial court improperly excluded the testimony of the City's undisclosed expert witnesses. It argues the court erred in concluding the witnesses' proposed testimony consisted of impermissible opinion contrary to the opinion previously expressed by MacDonald Construction's expert, rather than proper impeachment of a foundational fact forming the basis of the prior expert's opinion.
Before trial, MacDonald Construction timely designated accountant Donald Schulter as an expert witness on the subject of accepted industry practices for analyzing construction delay claims. During the pretrial phase, the City expressly "decline[d] to designate any experts" to testify at trial under section 2034 of the Code of Civil Procedure, and "reserved all rights to elicit expert opinions from witnesses called by any other party, ... [and to] later name subsequently obtained experts."
At trial, Schulter testified that the project delays produced additional office overhead expenses and labor disruption costs, and calculated MacDonald Construction's delay damages based upon an application of the Eichleay Formula. He further expressed an opinion that the formula used in calculating damages was the accepted industry standard for assessing construction project delay claims.
Following the completion of MacDonald Construction's case, the City announced its intention to call accountant Robert B. Shlonsky and professional project manager George Ossman III as defense experts. MacDonald Construction sought an offer of proof regarding *598 the proper, subject matter of the proposed experts' testimony. While conceding that the Eichleay Formula was the proper industry standard for analyzing construction delay claims, the City asserted the experts' testimony would impeach Schulter's testimony regarding the proper application of the formula. The City maintained the impeachment testimony would establish the "existence or nonexistence" of delay damages by demonstrating Schulter's misapplication of the formula.
MacDonald Construction objected on the ground that the proposed testimony by previously undisclosed expert witnesses was improper impeachment under Code of Civil Procedure section 2034(m) and Kennemur v. State of California (1982) 133 Cal.App.3d 907, 184 Cal.Rptr. 393. In sustaining the objection, the court reasoned the proposed testimony constituted an impermissible contrary opinion concerning accepted accounting practices used in applying the Eichleay Formula. It further reasoned that the City's offer of proof failed to demonstrate the falsity or nonexistence of any foundational fact upon which MacDonald Construction's expert relied in rendering his opinion.
Under the Code of Civil Procedure section 2034(m), an undisclosed expert witness called for impeachment purposes is permitted to testify that a foundational fact relied upon by a prior expert is either incorrect or nonexistent. (Kennemur v. State of California, supra, 133 Cal.App.3d at 925, 184 Cal.Rptr. 393.) A broad definition of "impeachment" to mean "to dispute, disparage, deny, or contradict" arguably supports the City's contention that its expert witnesses could properly testify in general rebuttal to MacDonald Construction's case, regardless of the City's failure to disclose the witnesses' proposed testimony before trial. (Kennemur v. State California, supra, at 921, 184 Cal.Rptr. 393 (quoting Black's Law Diet. (5th ed.1979) p. 886).) However, under section 2034(m), "calling an expert witness to express an opinion contrary to that expressed by another expert witness is not the `impeachment' contemplated by section [2034(m) ]." (Id. at 922, 184 Cal.Rptr. 393 (quoting Ellenberger v. Karr (1982) 127 Cal.App.3d 423, 427, 179 Cal.Rptr. 583).)
Unless the City's experts were prepared to challenge the accuracy of the calculations formulated by MacDonald Construction's expert or to provide substitute figures regarding overhead and costs, their proposed testimony was improper impeachment. Expert testimony contradicting an opinion expressed by MacDonald Construction's expert about accepted accounting practices for calculating overhead and costs falls within the category of testimony explicitly proscribed by section 2034(m). Therefore, the testimony of City's undisclosed expert witnesses was properly excluded because it was offered as improper contrary opinion testimony, rather than for the permissible purpose of contradicting a foundational fact.
II. CONTRACTOR MAY RECOVER DLAY DAMAGES FOR EXTENDED OVERHEAD
A. Interstate General Decision Does Not Restrict The Right To Recover Extended Overhead
The City contends the trial court erred in not following the three-prong test set forth in Interstate General Government Contractors v. West, 12 F.3d 1053 (Fed.Cir.1993) for determining the recoverability of extended overhead.
Interstate General established the rule that a contractor cannot recover on a claim for unabsorbed office overhead where it is able to meet the original contract deadline or finish early despite a government caused delay. An exception applies where the contractor demonstrates from the outset an intent to complete the work early, a capacity to do so, and a likelihood of early completion but for the government's delay. Application of the three-prong test requirement of Interstate General, however, is required only where the contractor finishes the work by the original specified contract completion date or earlier.
MacDonald Construction was unable to complete work on the project by the original June 1993 contract completion date. Delays attributable to the City's acts or omissions extended the performance period, and work *599 was not completed until December 1993. Under the facts of this case, therefore, Interstate General is inapplicable.
Even though not compelled to do so under the circumstances, MacDonald Construction nonetheless met the three-prong Interstate General test. The bar chart schedule Mac-Donald Construction provided to the City before work commenced indicates its intention to complete the project earlier than the originally allotted 330 working days. The unrefuted evidence also reveals MacDonald Construction could have completed the project within the initial schedule but for the delays caused by the restrictions on disposal of excavated material and on access to the project.
B. City's Liability For Concealment And Non-Disclosure Is Not Absolved By Contract Provision Or Lack Of Investigation
The City argues that a contract provision requiring a contractor's compliance with requirements of project permits issued by regulatory agencies absolves the City of any liability for damages resulting from concealment or nondisclosure of relevant information. The City contends that the permits disclosed the agencies' intent to impose restrictions on disposal of excavated material and on access to the project, and MacDonald Construction's examination of the permits would have revealed the adverse affect of the restrictions upon the cost and time required to complete the project.
Under general principles of contract and tort law, a party who conceals or fails to disclose material information to another is liable for fraud. In the public construction contract context, however, the conduct of a public agency which would otherwise amount to a tortious misrepresentation is treated as a breach of contract. The underlying theory is that providing misleading plans and specifications constitutes a breach of the implied warranty of correctness. (Souza & McCue Construction Co. v. Superior Court (1962) 57 Cal.2d 508, 20 Cal.Rptr. 634, 370 P.2d 338.)
In City of Salinas v. Souza & McCue (1967) 66 Cal.2d 217, 57 Cal.Rptr. 337, 424 P.2d 921, the Supreme Court stated the applicable law when a public agency fails to disclose information relevant to the performance of a contract:
"It is the general rule that by failing to impart its knowledge of difficulties to be encountered on a project, the owner will be liable for misrepresentation if the contractor is unable to perform according to the contract provisions."
(Id. at 222, 57 Cal.Rptr. 337, 424 P.2d 921.)
In that case, the City of Salinas materially misrepresented the soil conditions on a construction site by failing to inform Souza and other project bidders about unstable soil conditions known to the municipality. Salinas argued that a contract provision precluded municipal liability for the consequences of the misrepresentation. The contract provision required bidders to carefully examine the construction site, and provided that submission of a bid constituted prima facie evidence of the bidder's site inspection. The Supreme Court rejected the municipality's arguments stating:
"... even if the language had specifically directed the bidders to examine subsoil conditions, which it did not, it is clear that such general provisions cannot excuse a governmental agency for its active concealment of conditions."
(Id. at 223, 57 Cal.Rptr. 337, 424 P.2d 921.)
The contract provision in this case did not specifically direct bidders to examine the permits issued by the regulatory agencies. Moreover, no reason appears to have compelled them to do so. In fact, since no permits were issued until after the bid submission date, no permits existed for bidders to review.
Despite the City's awareness that various regulatory agencies intended to impose restrictions on the project, the City's plans and specifications did not include any provision regarding the anticipated difficulties resulting from the restrictions. Moreover, the bidding documents provided by the City failed to contain any warning about the adverse conditions contractors were likely to encounter. Since the City bore responsibility for obtaining the project permits, bidders *600 were reasonably entitled to assume the City would inform them of any permit requirements or restrictions adversely affecting their ability to perform work on the project.
The City is therefore not absolved by either contractual provision or decisional authority for failing to include restrictions in the project plans and specifications provided to bidders and to timely secure permits for the project.
C. Changed Circumstances Provides Basis For Imposing Liability
The City argues the trial court erred in finding that the special disposal requirement for the excavated material constituted a changed condition and provided a basis for imposing liability on the City for damages resulting from the special disposal requirement.
The changed condition clause in the contract required the City to adjust the compensation payable to the contractor if subsurface or soil conditions encountered on the project differed from conditions specified in the contract. Section 3-4 of the Standard Specifications in the contract defines a changed condition as "Material differing from that represented in the contract which the contractor believes may be hazardous waste, as defined in section 25117 of the Health and Safety Code, that is required to be moved to Class I, Class II or Class III disposal site in accordance with provisions of existing law."
The original specifications provided to bidders indicated that removal of hazardous waste material was involved in the work of the project. Before the bids were submitted, however, the City deleted the reference to hazardous waste removal. The City's soil contamination report provided to project bidders represented that no hazardous compounds were found in the tested material, and no special handling or stockpiling of excavated material would be necessary. The report also indicated the excavated material could be removed to an unclassified landfill disposal site.
MacDonald Construction did encounter changed conditions on the project. Contrary to the contract documents, the excavated material was hazardous waste as specified in the changed conditions clause, and was required to be removed to a special disposal site. In fact, the Regional Water Quality Control Board required special handling and removal of the material to a Class III type disposal site.
The trial court therefore correctly determined that changed conditions were encountered on the project.
DISCUSSION OF SOIL RETENTION SYSTEMS APPEAL
I. PASS-THROUGH CLAIMANT HAS STANDING TO APPEAL
The City contends that as a nonparty, Soil Retention Systems lacks standing to appeal a judgment precluding MacDonald Construction from recovering delay damages on its behalf on a pass-through claim.
During trial, the City formally moved for judgment under Code of Civil Procedure section 631.8 as to Soil Retention Systems' passthrough claim for delay damages. The City argued that no legal basis for the claim existed due to Soil Retention Systems' failure to sue MacDonald Construction or Howard Contracting. The referee's intended decision indicated a determination to award damages to Howard Contracting on a pass-through theory, but not to Soil Retention Systems.
MacDonald Construction moved to reopen the trial for the limited purpose of admitting into evidence a settlement and litigation agreement which authorized MacDonald Construction to recover delay damages on Soil Retention Systems' behalf. The City opposed the motion to reopen the trial, claiming prejudice from a lack of prior notice regarding the existence of the agreement. MacDonald Construction responded that the settlement and litigation agreement was identified and made available to the City for inspection during discovery in response to the City's demand for production, and a copy of the agreement was provided to the City at the beginning of trial. The referee's Statement of Decision, however, precluded Mac-Donald Construction from recovering damages on behalf of Soil Retention Systems due *601 to the letter's failure to file a separate action against MacDonald Construction and the City, as Howard Contracting had. The judgment entered by the trial court was consistent with the referee's determination.
Soil Retention Systems moved to vacate the judgment under Code of Civil Procedure section 663, seeking confirmation of its claim for damages on a pass-through basis under general construction contract law and the settlement and litigation agreement. The trial judge denied the motion to vacate on the ground that Soil Retention Systems lacked standing as a nonparty.
Although only a party of record may generally appeal from a judgment, an entity that is initially a nonparty in proceedings but is aggrieved by a judgment may become a party of record and secure the right to appeal by moving to vacate the judgment under Code of Civil Procedure section 663. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297, 50 Cal. Rptr.2d 493; Burrow v. Pike (1987) 190 Cal. App.3d 384, 391, 235 Cal.Rptr. 408.) Further, any entity that has an interest in the subject matter of a judgment and whose interest is adversely affected by the judgment is an aggrieved party and is entitled to be heard on appeal. However, the aggrieved party's interest must be immediate, pecuniary and substantial, and not merely a nominal or remote consequence of the judgment. (Slaughter v. Edwards (1970) 11 Cal.App.3d 285, 291, 90 Cal.Rptr. 144.)
The judgment adversely affects Soil Retention Systems' right to obtain a monetary recovery under its contract with MacDonald Construction, which is a party to the judgment. Confronted with recovering losses claimed to exceed $300,000, Soil Retention Systems is an aggrieved party under the rationale of Slaughter. Its interest is immediate, pecuniary and substantial, and not a nominal consequence of the judgment. Moreover, Soil Retention Systems properly sought to perfect its right to appeal by moving to vacate the judgment under Code of Civil Procedure section 663.
Accordingly, as an aggrieved party, Soil Retention Systems has standing to appeal the judgment under Code of Civil Procedure section 902.
II. PRETRIAL AGREEMENT PROVIDES LEGAL BASIS FOR PASS-THROUGH CLAIM
Prior to the commencement of proceedings, MacDonald Construction and Soil Retention Systems entered into a settlement and litigation agreement concerning the latter's claims for significant project cost overruns due to the City's failure to disclose anticipated difficulties and pending restrictions. The agreement provided that Mac-Donald Construction would pursue Soil Retention Systems' claim, along with its own, on a pass-through basis in exchange for Soil Retention Systems' agreement to accept any damages MacDonald Construction recovered on its behalf as full resolution of its claim. In accord with the agreement, MacDonald Construction included Soil Retention Systems' claim in the claim filed with the City. Howard Contracting, which also experienced cost overruns, sued MacDonald Construction. In response, MacDonald Construction crosscomplained against Howard Contracting and the City, including allegations relating to Soil Retention Systems' claim.
At trial, MacDonald Construction proceeded on the apparent assumption that presentation of the settlement and litigation agreement was not necessary to prove Soil Retention Systems' pass-through claim for delay damages, and did not seek to offer the agreement into evidence. The City moved for judgment on Soil Retention Systems' pass-through claim under Code of Civil Procedure section 631.8 based on the lack of evidence of "any agreement between [Soil Retention Systems and G.A. Mac-Donald Construction] relating to the outcome of this trial or a demand to pursue the City regarding the Venice Canals project." When the referee's intended decision found no legal basis to award damages on the pass-through claim, MacDonald Construction moved unsuccessfully to reopen the proceedings to bring the settlement and litigation agreement to the referee's attention.
Section 631.8, under which the City sought judgment, specifically provides: *602 "... The court may consider all evidence recovered, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence...."
In granting the City's section 631.8 motion, the referee failed to afford Mac-Donald Construction the opportunity specifically provided by the section to permit a trial court to consider the settlement and litigation agreement as evidentiary support for Soil Retention Systems' pass-through claim.
Under Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611, 18 Cal.Rptr.2d 692, "where a matter is tried to the court as here, the trial judge has broad discretion to reopen the matter prior to final judgment, even over the objection of. the litigants.... Such a procedure ... does not violate the litigants' rights when adequate notice is given, as hereand may, in fact, be required in order to reach a just result."
If the referee had granted the request to reopen the trial and admitted the settlement and litigation agreement into evidence, the City's interests would not have suffered undue prejudice. The City was fully aware of both the existence and contents of the agreement. It was identified and made available for inspection during pretrial discovery in response to the City's demand for document production. Moreover, at the beginning of trial, a copy of the agreement was provided to the City.
As a matter of law, a general contractor can present a subcontractor's claim on a pass-through basis. (Maurice L. Bein v. Housing Authority (1958) 157 Cal. App.2d 670, 321 P.2d 753.) When a public agency breaches a construction contract with a contractor, damage often ensues to a subcontractor. In such a situation, the subcontractor may not have legal standing to assert a claim directly against the public agency due to a lack of privity of contract, but may assert a claim against the general contractor. In such a case, a general contractor is permitted to present a pass-through claim on behalf of the subcontractor against the public agency. (D.A. Parrish & Sons v. County Sanitation Dist. (1959) 174 Cal.App.2d 406, 344 P.2d 883.) As a subcontractor, Soil Retention Systems had no standing to sue the City directly, particularly on a breach of contract theory, because Soil Retention Systems and the City were not in privity of contract.
The settlement and litigation agreement was predicated on the availability of the pass-through claim process. If the process is not available to the parties, MacDonald Construction has potential exposure to Soil Retention Systems through an action for rescission of the agreement based on a failure of consideration. From a public policy standpoint, the initiation of separate litigation against a general contractor should not be compelled merely to enable a subcontractor to obtain standing when the general contractor previously agreed to pursue the subcontractor's damages claim against the public agency on a pass-through basis. To hold otherwise would be to insist on needless additional and duplicative litigation.
The referee's determination not to reopen proceedings to consider the settlement and litigation agreement was error and prejudiced the interests of Soil Retention Systems. The trial court's determination not to vacate the judgment relating to Soil Retention Systems' claim for delay damages was likewise error and compounded the prejudice.
DISPOSITION
The judgment of the trial court in favor of MacDonald Construction is affirmed. However, the judgment is reversed to the extent it precludes an award of damages to Mac-Donald Construction on a pass-through basis to compensate Soil Retention Systems for delay related losses on the Venice Canals project. A new trial is ordered on that issue.
MacDonald Construction and Soil Retention Systems are awarded costs on appeal.
LILLIE, P.J., and JOHNSON, J., concur.
NOTES
[*] Assigned by the Chair of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262539/ | 124 N.J. Super. 322 (1973)
306 A.2d 493
COLUMBIA BROADCASTING SYSTEM, INC., ETC., PLAINTIFF,
v.
MELODY RECORDINGS, INC., ET AL., DEFENDANTS.
Superior Court of New Jersey, Chancery Division.
Decided May 28, 1973.
*323 Mr. William H. Hyatt, Jr. for plaintiff (Messrs. Pitney, Hardin & Kipp, attorneys).
Mr. Sheldon A. Weiss for Defendants U.S. Tape Inc. and George Tucker (Messrs. Glauberman & Weiss, attorneys).
Mr. Joel D. Siegal for Defendants Melody Recordings, Inc. et al. (Messrs. Hellring, Lindeman & Landau, attorneys).
KIMMELMAN, J.S.C.
Columbia Broadcasting System, Inc. (C.B.S.) brings this class action for itself and on behalf of all other recording companies that produce, manufacture *324 and sell musical performances on records and tapes. It is alleged that C.B.S. contracts with well-known artists for the exclusive right to record their performances, and that by the use of costly and sophisticated equipment records their performances upon master recordings and at great expense manufacturers records and tapes from such masters. C.B.S. pays royalties to the recording artists and to the proprietors of the copyrights of the musical compositions involved, based upon the sales of records and tapes under C.B.S.'s exclusive label. It is charged that defendants unlawfully copy and reproduce the recorded performances embodied on the records and tapes manufactured and sold by C.B.S. and other recording companies by mechanically duplicating the recordings and transferring the exact duplicated sound onto their own records and tapes. In the trade this process is known as "pirating." The products thereby offered for sale are known as "pirated records" and "pirated tapes." C.B.S. contends that defendants have unjustly enriched themselves at its expense. More specifically, it alleges that the acts of defendants constitute a violation and infringement of its common law copyrights, are an unlawful and unauthorized appropriation of its rights, constitute unfair competition and are an unlawful interference with its contractual rights. An injunction against the pirating is sought, as well as an accounting and damages both compensatory and punitive.
Both sides have filed cross-motions for summary judgment, supported by extensive and detailed affidavits. Additionally, defendants seek a stay of this action pending a decision by the United States Supreme Court in Goldstein v. California, No. 71-1192. The specific question presented in Goldstein is whether the copyright clause of the U.S. Constitution and the federal copyright act preempt, under the supremacy doctrine, state anti-tape and record pirating laws or preclude the application of unfair competition principles to prevent such pirating. This court heretofore denied *325 C.B.S.'s application for a stay, reserving for decision at this time the motions for summary judgment.
An abbreviated view of federal law relating to copyrights in the music recording area is necessary for the comprehension and adjudication of this matter. The U.S. Constitution grants to Congress the power:
To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. [U.S. Const., Art. I, § 8, cl. 8]
Pursuant to this grant Congress first legislated upon the subject in 1790, the latest general revision of the law being the Copyright Act of 1909, 17 U.S.C.A. § 1 et seq. At that time, and in light of what was then a new technological advance in the wake of Edison's invention, copyright protection was given to authors of musical compositions against the recording or mechanical reproduction of their copyrighted musical work. Prior to the 1909 revision it had been held that the manufacture of phonograph records embodying a copyrighted musical composition was not an infringement of that copyright. White-Smith Pub. Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655 (1908). By virtue of § 1(e) of the 1909 act, which for the first time extended copyright control over the recording industry, it was provided in pertinent part as follows:
And as a condition of extending the copyright control to such mechanical reproductions, that whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each such part manufactured, to be paid by the manufacturer thereof. * * *
In basic terms, Congress granted to a composer the right to prohibit mechanical reproduction of his work but provided at the same time, in order to foster the widest dissemination *326 of musical works for the benefit of the public, that once a composer approved and permitted the use of his copyrighted work for mechanical reproduction then, upon payment of the congressionally prescribed royalty, "any other person" or (in effect) all who desired, might at will reproduce the music. Such is the so-called "compulsory license" provision relied upon by all defendants in this case. 17 U.S.C.A. § 1 (e). They allege compliance with 17 U.S.C.A. § 101(e) by serving notices of intention to use the musical composition upon the copyright owners and by paying royalties for each so-called "pirated record" or "pirated tape." Under this procedure nothing is paid to the original record or tape manufacturer, such as C.B.S., who has the underlying contractual arrangement with the proprietor of the musical copyright. Although the fruits of the manufacturer's efforts are utilized in the pirating process, the manufacturer is completely by-passed with respect to royalty payments. Until a recent congressional enactment added subsection (f) to § 1 of the Copyright Act of 1909, see Pub. L. 92-140, effective February 15, 1972, the manufacturers of sound recordings produced prior to that date were without copyright protection for such recordings. Shaab v. Kleindienst, 345 F. Supp. 589 (D.C. 1972); Int'l. Tape Mfrs. Ass'n v. Gerstein, 344 F. Supp. 38 (S.D. Fla. 1972).
As to pre-February 15, 1972 recordings (and only that category of recordings is involved before this court) the issue for decision depends upon whether Congress intended to permit, upon compliance with the compulsory licensing provisions, unlimited mechanical reproduction of musical recordings by means of pirating, and whether such pirating can be prohibited by resort to state laws dealing in general with the subject of unfair competition. Included within such issue is whether congressional enactments in this area have preempted state unfair competition laws insofar as pirated recordings are concerned.
*327 The subject is complex, and divergent decisions have emanated from various judicial districts. Duchess Music Corp. v. Stern, 458 F.2d 1305 (9 Cir.1972), cert. den. 409 U.S. 847, 93 S.Ct. 52, 34 L.Ed.2d 88; Tape Industries Ass'n of America v. Younger, 316 F. Supp. 340 (C.D. Cal. 1970), app. dism. 401 U.S. 902, 91 S.Ct. 880, 27 L.Ed.2d 801 (1971); Tape Head Co. v. R.C.A. Corp., 452 F.2d 816 (10 Cir.1971); Int'l. Tape Mfrs. Ass'n v. Gerstein, supra; Capital Records, Inc. v. Greatest Records, Inc., 43 Misc.2d 878, 252 N.Y.S.2d 553 (Sup. Ct. 1964). See, specifically, the comprehensive opinion by U.S. District Judge Lacey in Jondora Music Publishing Co. v. Melody Recordings, Inc., 351 F. Supp. 572 (D.N.J. 1972). The preceding list of citations is by no means exhaustive of the subject.
The difficulty arises from the lack of any uniform interpretation concerning the Supreme Court's holdings in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), and from uncertainty as to whether Sears and Compco undercut the ruling in International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918). It is hoped that the area will be clarified by the Court in Goldstein now pending for decision. As a consequence, this court's opinion on the subject may well become a gratuitous exercise. However, in view of the uncertainty both as to the ultimate decision in Goldstein and as to when the same will be rendered, there is no reason to delay disposition of the instant matter now pending on the calendar of this court.
Based upon my review, I conclude that the Supreme Court's decisions in Sears and Compco are controlling and dispositive of the issues here involved. In Sears it appeared that Sears, at relatively small expense, manufactured and marketed a substantially identical copy of a pole lamp originally designed, manufactured and marketed by Stiffel. *328 The issue as posed by the Supreme Court was whether a state's unfair competition laws can, consistently with the federal patent laws, impose liability for or prohibit the copying of an article which is protected by neither a federal patent nor a copyright. The court stated that
[patent and copyright laws] enacted pursuant to constitutional authority are the supreme law of the land. * * * When state law touches upon the area of these federal statutes it is "familiar doctrine" that the federal policy "may not be set at naught or its benefits denied" by the state law." * * * This is true, of course, even if the state law is enacted in the exercise of otherwise undoubted state power. [376 U.S. at 229, 84 S.Ct. at 787]
* * * *
Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws. [Id. at 231, 84 S.Ct. 789]
Sears specifically held that "because of the federal patent laws, a State may not, when the article is unpatented and uncopyrighted prohibit the copying of the article itself or award damages for such copying." 376 U.S. at 232, 84 S.Ct. at 789. If otherwise, the court reasoned, perpetual state protection by use of its unfair competition laws would be granted to an article which federal law has said belongs to the public by simple virtue of its lack of entitlement to patent or copyright protection.
In Compco, which involved the identical copying of a distinctive but unpatentable fluorescent lighting fixture, the court again rejected the application of state unfair competition laws, reiterating its holding in Sears as follows:
* * * when an article is unprotected by a patent or copyright, state law may not forbid others to copy that article. To forbid copying would interfere with the federal policy found in Art. I, § 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain." [376 U.S. at 237, 84 S.Ct. at 782]
International News Service v. Associated Press, supra., which preceded Sears and Compco by some 46 years, under *329 pre-Erie R.R. Co. v. Tompkins doctrine invoked a general federal common law of "unfair competition" to prevent I.N.S. from copying news bulletins from early editions of newspapers serviced by Associated Press. In effect, I.N.S. was held to have wrongfully pirated and published as its own, uncopyrighted news which A.P. had gathered. As above noted, a question exists as to the continuing vitality of the ruling by the United States Supreme Court in that case.
For illustrations of the current state of confusion, compare Columbia Broadcasting System, Inc v. Custom Recording Co., Inc., 258 S.C. 465, 189 S.E.2d 305 (S.C. Sup. Ct. 1972), with Columbia Broadcasting System, Inc. v. DeCosta, 377 F.2d 315 (1 Cir.1967). The Supreme Court of South Carolina in the former C.B.S. case followed International News Service v. Associated Press, supra, drawing a distinction between merely copying and actually appropriating another's product and granted an injunction prohibiting what it termed as "disklegging." On the other hand, the First Circuit Court of Appeals in the latter C.B.S. case held that International News Service v. Associated Press, supra, had been clearly overruled by Sears and Compco.
In our own State, Press Publishing Co. v. Atlantic County Advertiser, Inc., 59 N.J. 356 (1971), is significant. At issue was the right of the publisher of a daily newspaper to enjoin the publisher of a weekly newspaper from copying and publishing advertisements which had earlier appeared in the daily newspaper. Without any reference to International News Service v. Associated Press, supra, the court placed complete reliance upon Sears and Compco, thereby upholding the dismissal of the action. In the absence of any federal copyright protection the court refused to justify state court jurisdiction by the device of labeling the action as one for "unfair competition." 59 N.J. at 359.
While some courts, as indicated, have found a distinction between the copying of an unpatented design and the exact duplication of a recorded musical composition, I find such *330 distinction to be conceptually meaningless. There is absolutely no difference in the end result when Sears makes a mold from a lamp pole designed and produced at great expense by Stiffel or when a so-called "pirate" makes an exact duplicate of a recording produced at great expense by C.B.S. Although the means may differ, the end result is exactly the same. The same is true when a weekly newspaper copies and publishes as its own an advertisement previously appearing in a daily. In each instance a businessman has appropriated the unpatented or uncopyrighted product of another and placed on the market as his own an identical product. To draw a distinction in the case of "pirating" or "disklegging" is to invest a difference without substance. The rights of the parties cannot be made to rest on so fine a subtlety.
No comment is required as to the morality or ethics of the business practice involved. The federal intendment is clear. In the absence of patent protection or copyright protection, exact copies or duplicates may be made by anyone. If a person is not an infringer under federal patent or copyright law and thereby insulated from liability, a contrary result in state courts is not dictated simply because the very same conduct is earmarked by a different label. To allow state law to prohibit such copying or duplication would be to afford state protection in a federal area where Congress itself has provided for none.
Under the circumstances, summary judgment must be granted in favor of all defendants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262545/ | 900 F.Supp. 795 (1994)
Doris S. CROMER, Plaintiff,
v.
PERDUE FARMS, INC., Defendant.
Civ. No. 3:93CV00397.
United States District Court, M.D. North Carolina, Rockingham Division.
September 26, 1994.
*796 *797 *798 Doris S. Cromer, Rockingham, NC, pro se.
Charles P. Roberts, III, Lucretia D. Smith, Haynsworth, Baldwin, Johnson and Greaves, P.A., Greensboro, NC, for defendant.
MEMORANDUM OPINION
BULLOCK, Chief Judge.
This case comes before the court on a motion for summary judgment filed by Defendant Perdue Farms, Inc. Plaintiff seeks damages for (1) discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1988) (Title VII), (2) wrongful discharge in violation of North Carolina public policy, (3) intentional infliction of emotional distress, and (4) breach of contract. Because Plaintiff has failed to produce evidence sufficient to support her claims, summary judgment will be granted for Defendant as to all of Plaintiff's claims.
FACTS
In early 1991 Defendant employed Plaintiff as a licensed practical nurse to work the third shift at Defendant's Rockingham, North Carolina, poultry processing plant. Plaintiff was the first person to fill this newly created position of third-shift plant nurse and accepted an initial salary of $23,500.00 per year. Plaintiff and Defendant did not enter into any agreement as to the length of time for which Plaintiff would be employed. In her position Plaintiff was responsible for performing physicals for new employees, making sure certain employee medical records were updated, performing random drug tests, and attending to the medical needs of employees arising on her shift. In this last capacity Plaintiff would often examine and evaluate employees' injuries and make a recommendation to the particular employee's supervisor as to whether the employee needed to be placed on lighter duty as a result of the injury.
In the course of her employment, Plaintiff recommended that several employees be reassigned to a position of lighter duty or less repetition as a result of their injuries. Plaintiff's assignment of employees to lighter duty created conflict with the employees' supervisors who felt that Plaintiff was making too many such assignments to lighter jobs. Often the supervisors would refuse to reassign these employees. On more than one occasion Plaintiff argued with the supervisors about their refusal to follow her recommendations regarding lighter duty assignments. Plaintiff also complained to her immediate superiors, Mary Young[1] and Gilbert Gibson[2], about the supervisors' refusal to follow her recommendations regarding light duty assignment and about the arguments which Plaintiff and these supervisors had as a result. At no time during Plaintiff's employment with Defendant did Plaintiff otherwise complain to her superiors about any other aspect of her job, such as unsafe working conditions.
Beginning about November 3, 1991, Plaintiff began experiencing medical problems and was excused from work by her doctor for a cumulative total of about 2½ weeks in November. Plaintiff returned to work on November 27, 1991, and Plaintiff's last day of employment with Defendant was on or about January 3, 1992.
The parties are in dispute as to the facts concerning Plaintiff's employment termination. Plaintiff alleges that on December 12, 1991, Gibson informed Plaintiff that he *799 was accepting her resignation which Gibson claimed was tendered to him on November 5, 1991. Plaintiff alleges that, while she might have informed Gibson that she was thinking of resigning at the end of 1991, she at no time actually tendered her resignation to anyone. Plaintiff alleges that Defendant, through Gibson, unilaterally terminated her employment (under the guise of accepting Plaintiff's resignation) on December 12, 1991, to be effective January 3, 1992. Defendant's version of what transpired is substantially different. Defendant alleges that in late September or early October of 1991 Plaintiff talked with Young and Gibson about resigning her position but decided not to resign after speaking with Gibson. Defendant alleges that Plaintiff did tender her resignation to Gibson on or about November 5, 1991. Defendant further alleges that Plaintiff attempted to rescind her resignation on December 3, 1991, but that Gibson decided to accept her resignation on December 12, 1991, after conferring with Mary Young.[3] The reasons which Defendant gives for accepting Plaintiff's resignation include Plaintiff's ambivalence and non-commitment toward her work (as evidenced by twice having tendered her resignation) and the fact that Defendant had expended time and money to find a replacement for Plaintiff after her tender of resignation in early November.
After Plaintiff's employment with Perdue ended, the position of third-shift plant nurse was filled by a white female, Sharon Halton, who was given a salary of $26,000.00 per year. Defendant alleges that Halton was awarded a higher salary than Plaintiff because of her previous industrial nursing experience. Plaintiff had no such experience. After Halton's brief employment with Defendant, the third-shift plant nurse position was filled by a black female, Mary McIver, who was also given a salary of $26,000.00 per year. Defendant stated that the discrepancy between the starting salaries of Plaintiff and McIver was based upon McIver's previous experience in a poultry processing plant.
Plaintiff has admitted that at no time during her employment with Defendant was her race commented upon by any of Defendant's employees, nor was race given as a reason for her alleged termination. Defendant denies that race was a factor in any employment decision regarding Plaintiff's departure from Perdue. Plaintiff filed a charge of race discrimination with the EEOC on May 14, 1992, and later filed this lawsuit.
DISCUSSION
Summary judgment shall 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. Fed. R.Civ.P. 56(c). The moving party bears the burden of persuasion on these issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The non-moving party may survive a motion for summary judgment by producing "evidence from which a jury might return a verdict in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). In considering the evidence, all reasonable inferences are to be drawn in favor of the non-moving party. Id. at 255, 106 S.Ct. at 2513-14.
A. Title VII Race Discrimination
In cases such as this one, where there is an absence of direct evidence of discrimination, cases such as McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), set forth the allocation of burdens and order of presentation of proof in a Title VII case alleging race discrimination. The Supreme Court recently clarified this scheme of proof in St. Mary's Honor Ctr. v. Hicks, ___ U.S. ___, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Plaintiff must first establish by a preponderance of the evidence a prima facie case of racial discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94. To do this, Plaintiff need only prove (1) that she is black, (2) that she was qualified for the position of third-shift plant nurse, (3) that she was discharged from this position, and (4) that the *800 position remained open and was ultimately filled by a white person of the same qualifications as Plaintiff. See St. Mary's, ___ U.S. at ___, 113 S.Ct. at 2747; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. It is uncontroverted that Plaintiff is a black person and that her replacement was a white person. In light of the fact that Plaintiff is proceeding pro se and that all reasonable inferences in a motion for summary judgment are to be drawn in favor of the non-moving party, the court also finds that Plaintiff has satisfied her burden of coming forward with evidence to show that she was qualified for the position of third-shift plant nurse and was replaced by a person of similar qualifications. (Cromer Aff. ¶ 12, filed June 6, 1994). Furthermore, since the facts are in dispute regarding whether Plaintiff was discharged or resigned, for the purpose of this motion the Plaintiff's version of the facts, that she was discharged, is assumed to be true. Computer Servicenters, Inc. v. Beacon Mfg. Co., 443 F.2d 906, 906-07 (4th Cir. 1971). The court therefore finds that Plaintiff has established a prima facie case of discrimination under the McDonnell Douglas scheme.
Once the plaintiff in a race discrimination case presents a prima facie case of race discrimination, the defendant must carry the burden of producing evidence that the adverse employment action was taken "for a legitimate, nondiscriminatory reason." Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. In order to do this, "`the defendant must clearly set forth, through the introduction of admissible evidence,' reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's, ___ U.S. at ___, 113 S.Ct. at 2747 (quoting Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094-95). Defendants in this case have rebutted the prima facie case of discrimination by producing evidence that the employment action alleged to be adverse to Plaintiff was taken because Plaintiff was "so ambivalent about her employment" with Defendant (Gilbert Aff. ¶ 11, filed Apr. 11, 1994) and could not be depended upon for the job of third-shift plant nurse.[4] (Young Aff. ¶ 6, filed Apr. 11, 1994).
Since Defendant has succeeded in carrying its burden of production, the McDonnell Douglas presumption of discrimination evaporates and the Plaintiff must prove that the Defendant intentionally discriminated against her because of her race. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). When a defendant has carried its burden of producing a non-discriminatory reason for an adverse employment action, the plaintiff may prove intentional discrimination by showing "both that the reason was false, and that discrimination was the real reason." St. Mary's, ___ U.S. at ___, 113 S.Ct. at 2752. In this case, Plaintiff has not proffered any evidence showing that the reasons given by Defendant for the adverse employment decision were false, nor has she proffered any evidence to show that discrimination was the real reason for Defendant's actions. In other words, Plaintiff has failed to point to any evidence of intentional racial discrimination against her.
Plaintiff admits that no one at Perdue ever made any sort of comment to her that she perceived as being racial. (Cromer Dep. of Oct. 26, 1993, p. 90). Moreover, the only reasons Plaintiff gives for believing that she was the victim of racial discrimination are (1) she was the first black nurse at Perdue, (2) she believes she was fired and did not resign, (3) they hired a white person to replace her who was paid a higher salary than Plaintiff. (Cromer Dep. of Oct. 26, 1993, pp. 90-91). When, as here, the inference sought to be drawn from Plaintiff's evidence *801 "lacks substantial probability" but is based upon "surmise and conjecture" that issue should not be submitted to the jury for consideration. Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 242 (4th Cir. 1982). This circumstantial evidence presented by Plaintiff does not support as a reasonable probability the inference that but for her race she would not have been subject to an adverse employment decision. For this reason alone it is proper to grant Defendant's motion for summary judgment as to Plaintiff's Title VII claim.
In addition to the foregoing, Plaintiff admits that she interviewed with Gibson for the position of third-shift plant nurse and was ultimately offered this position by Gibson. (Cromer Dep. of Oct. 26, 1993, pp. 37-45). Plaintiff also admits that it was Gibson who made the decision to end her employment with Defendant. (Cromer Dep. of Oct. 26, 1993, pp. 85-87). Plaintiff was offered her position with Defendant on or about April 23, 1991, and the decision to terminate Plaintiff's employment was made on or about December 12, 1991. Consequently, "in cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer." Proud v. Stone, 945 F.2d 796, 797 (4th Cir.1991). Apart from sheer speculation, Plaintiff has not presented any countervailing evidence to show she was intentionally discriminated against. Therefore, summary judgment shall be entered for Defendant on Plaintiff's Title VII claim.
B. Wrongful Discharge
Plaintiff asserts a cause of action for wrongful discharge in violation of North Carolina public policy.[5] Plaintiff's claim for wrongful discharge fails for at least two reasons. First of all, Plaintiff has not demonstrated a violation of law or of any public policy articulated by the North Carolina courts or legislature.[6] Second, Plaintiff has failed to produce any evidence showing a causal nexus between any protected activity and her subsequent termination. A prima facie case of retaliation requires a plaintiff to show by a preponderance of the evidence that the adverse employment action would not have occurred but for the protected conduct. Ross v. Communications Satellite Corp., 759 F.2d 355, 365-66 (4th Cir.1985). See also Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 499, 340 S.E.2d 116, 126 (1986). For these reasons, summary judgment must be entered for Defendant as to Plaintiff's claim for wrongful discharge in violation of public policy.
C. Infliction of Emotional Distress
Plaintiff has also brought a claim against Defendant for intentional infliction of emotional distress. In order to prevail on this claim, Plaintiff must show: "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional *802 distress to another." Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981). Whether the conduct complained of may reasonably be found to be extreme and outrageous is a question of law for the court. Wilson v. Bellamy, 105 N.C.App. 446, 468, 414 S.E.2d 347, 359 (1992). In order to be considered "extreme and outrageous," 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.'" Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 493, 340 S.E.2d 116, 123 (1986) (quoting Restatement (Second) of Torts § 46 comment (d) (1965)). The conduct Plaintiff has complained of in this case does not reach this level of atrocity. The conduct that Plaintiff complains of in regard to her emotional distress claim consists merely of (1) Defendant's termination of her employment, and (2) Defendant's action in subpoenaing her employment records from a subsequent employer. The court finds that Defendant's conduct in terminating Plaintiff's employment was not "extreme and outrageous." See McKnight v. Simpson's Beauty Supply, Inc., 86 N.C.App. 451, 454, 358 S.E.2d 107, 109 (1987) (holding that the fact that defendant's discharge of plaintiff was abrupt, without cause, and unexplained was not enough to support a claim for intentional infliction of emotional distress). Furthermore, the court finds that it was not considered extreme and outrageous conduct for Defendant, after the institution of this lawsuit by Plaintiff, to subpoena Plaintiff's employment records from a subsequent employer for the purposes of defending against Plaintiff's lawsuit.
Neither has Plaintiff offered any evidence that Defendant's conduct has caused her severe emotional distress. The emotional and physical ailments of which Plaintiff complains are (1) stress, (2) heart palpitations, and (3) diabetes. Plaintiff's "stress" does not rise to the level of "severe emotional distress," which has been interpreted to mean "`any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.'" Waddle v. Sparks, 331 N.C. 73, 83, 414 S.E.2d 22, 27 (1992) (quoting Johnson v. Ruark Obstetrics & Gynecology Ass'n, 327 N.C. 283, 304, 395 S.E.2d 85, 97, reh'g denied, 327 N.C. 644, 399 S.E.2d 133 (1990)). As to the cause of Plaintiff's heart palpitations, Plaintiff has admitted that they were the result of her high blood pressure. (Cromer Dep. of Feb. 22, 1994, p. 9). Furthermore, while Plaintiff claims that her diabetes was caused by stress attributable to Defendant's actions, Plaintiff admits that her doctor has been unable to tell her that her diabetes was caused by such stress. (Cromer Dep. of Feb. 22, 1994, p. 10). For the above reasons, summary judgment shall be granted in favor of Defendant on Plaintiff's claim for intentional infliction of emotional distress.
D. Breach of Contract
Plaintiff's final cause of action is one for breach of contract against Defendant. While Plaintiff admits that she had no written employment contract with Defendant, Plaintiff states that she was of the understanding that after thirty days "the job was [hers] until [she] gave it up ... if nothing happened between the thirty days." (Cromer Dep. of Feb. 22, 1994, p. 14). It is clear under North Carolina law that a contract of employment which does not contain a specified term or fixed duration of employment is ordinarily not enforceable. Still v. Lance, 279 N.C. 254, 259, 182 S.E.2d 403, 406 (1971). Plaintiff admits that any employment contract between herself and Defendant did not contain a fixed term of employment. (Cromer Dep. of Feb. 22, 1994, pp. 14-16). Therefore, the contract could legally be terminated at any time by Defendant. Still, 279 N.C. at 259, 182 S.E.2d at 406.
Plaintiff also bases her breach of contract cause of action upon unspecified language contained in Defendant's employment handbook, which Plaintiff received at the commencement of her employment. The law of North Carolina is clear that "unilaterally promulgated employment manuals or policies do not become part of the employment contract *803 unless expressly included in it." Walker v. Westinghouse Elec. Corp., 77 N.C.App. 253, 259, 335 S.E.2d 79, 83-84 (1985) (citations omitted). See also Roberts v. Wake Forest Univ., 55 N.C.App. 430, 436, 286 S.E.2d 120, 124 (1982) (holding that there was no employment contract where personnel manual provided that after three months an employee became a "permanent employee," where there was no additional expression as to duration).[7] Accordingly, Defendant is entitled to summary judgment on Plaintiff's cause of action for breach of contract.
E. Defendant's Motion to Strike Plaintiff's Pleadings and Assess Sanctions
In response to Defendant's motion for summary judgment, Plaintiff has submitted to the court for review approximately 150 unverified and unauthenticated documents. In light of the court's disposition of this case and the irrelevant nature of the vast majority of these documents, the court finds it unnecessary to rule on Defendant's motion to strike Plaintiff's pleadings.
Defendant has also moved for sanctions against Plaintiff on the grounds that Plaintiff failed to respond fully to Defendant's discovery requests and allegedly gave false answers during her deposition testimony. In light of Plaintiff's status as a pro se litigant, and the fact that Plaintiff's conduct may have been inadvertent, the court finds it inappropriate to assess sanctions against Plaintiff.
CONCLUSION
Plaintiff has failed to establish a claim of discrimination based upon her race. Plaintiff has not established a claim for wrongful discharge in violation of public policy, intentional infliction of emotional distress, nor breach of contract. Summary judgment will therefore be granted for Defendant on all of Plaintiff's claims.
NOTES
[1] Mary Young was the head plant nurse at Perdue Farms in Rockingham, North Carolina, during Plaintiff's employment there.
[2] Gilbert Gibson was the manager of Human Resources at Perdue Farms in Rockingham, North Carolina, during Plaintiff's employment there. Gibson interviewed and made the decision to hire Plaintiff in early 1991.
[3] Defendant alleges that Plaintiff specified high blood pressure and the difficulty Plaintiff was experiencing with the employee supervisors as the reasons for her resignation.
[4] While Defendant's justification for the adverse employment action is based upon the disputed fact that Plaintiff had a history of offering and then rescinding her resignation, "[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094-95 (citation omitted). Moreover, Plaintiff's undisputed and frequent absence from work during the month of November 1991 supports Defendant's allegation that Plaintiff could not be counted on to perform the duties of her job.
[5] Plaintiff in her deposition manifests a belief that she brought her claim of wrongful discharge not because she believed that her complaints caused her discharge but because "people do not like that word discrimination, so [she] reworded it for wrongful discharge." (Cromer Dep. of Feb. 22, 1994, p. 8).
[6] The North Carolina Supreme Court has stated that "the definition of `public policy' ... does not include a laundry list of what is or is not `injurious to the public or against the public good'" and has chosen to allow this area of the law to "mature slowly." Amos v. Oakdale Knitting Co., 331 N.C. 348, 353 & n. 1, 416 S.E.2d 166, 169 & n. 1 (1992). Plaintiff appears to make the argument that her employment may have been terminated because of her complaining to Gibson about "unsafe working conditions" based upon her complaints to Gibson that the employees' supervisors would not follow her instructions as to the care of plant employees. (Cromer Dep. of Oct. 26, 1993, p. 60; Cromer Dep. of Feb. 26, 1994, pp. 21-28). The tenuity of this argument, in addition to the fact that North Carolina has never recognized a cause of action for wrongful discharge in favor of employees who orally complained to their employers about unsafe working conditions, precludes Plaintiff's cause of action for wrongful discharge. Plaintiff admits that she did not initiate a complaint with the Occupational Safety and Health Review Commission or threaten to initiate any such complaint. Therefore North Carolina General Statute Section 95-241, prohibiting discrimination on account of any activity protected under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, is not applicable to protect Plaintiff.
[7] Moreover, the employment handbook on which Plaintiff apparently bases her breach of contract cause of action contains the following language:
These handbook contents are not intended to create a contract between the company and any employee. Nothing in this handbook binds the company or any employee to any specific procedures, policies, benefits, working conditions, or privileges of employment.
As an employee, you are completely free to leave the company at any time you choose, and the company has the same rights in the employment relationship. This is just good business practice for everyone.
No supervisor, or member of management, except for the company's chief executive officer, has the authority to bind the company to any employment contract for any specified period of time with any employee, either verbally or in writing. The only valid contract for employment between the company and any employee must be in writing and signed by the chief executive officer.
When Plaintiff received a copy of the handbook at the commencement of her employment she signed an acknowledgment stating that she had read the handbook and that she understood that "the handbook did [not guarantee her] any specific policies, procedures, rules, or length of employment." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262546/ | 113 N.H. 239 (1973)
STATE OF NEW HAMPSHIRE
v.
DENIS M. VACHON
No. 6392.
Supreme Court of New Hampshire.
May 31, 1973.
Warren B. Rudman, attorney general, and Robert V. Johnson II, assistant attorney general (Mr. Johnson orally), for the State.
Sheehan, Phinney, Bass & Green and James E. Higgins (Mr. Higgins orally) for the defendant.
*240 LAMPRON, J.
Appeal from a jury-waived trial before Loughlin, J. which resulted in a verdict of guilty. The complaint charged that the defendant wilfully contributed to the delinquency of a minor in violation of RSA 169:32 by selling or causing to be sold to a 14-year-old girl a button with obscene material, namely, the slogan "Copulation Not Masturbation", knowing her to be a minor. Defendant's exceptions to the denial of his pretrial motion to dismiss on the grounds that the button was not obscene as a matter of law, and that he had been denied his right to a speedy trial, that the admission of certain evidence constituted prejudicial error, that the denial of his motion to dismiss at the close of the State's case was improper, and to the verdict of guilty were reserved and transferred.
RSA 169:32 (Supp. 1972) provides in part as follows: "Any parent or guardian or person having custody or control of a child, or anyone else, who shall knowingly or wilfully encourage, aid, cause, or abet, or connive at, or has knowingly or wilfully done any act to produce, promote, or contribute to the delinquency of such child, may be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year or both." Section 2 of this chapter, insofar as material, defines a "delinquent child" as "[a]ny child who violates any law of this state or any city or town ordinance or who so deports himself as to injure or endanger the health or morals of himself or others." Section 26 provides that the provisions of this chapter are to be construed in the light of their intended purpose to protect minors from influences which might lead them to deportment injurious to their health or morals. See State v. Lemelin, 101 N.H. 404, 144 A.2d 916 (1958); Report of Commission to Recommend Codification of Criminal Laws, comments at 81 (1969).
Defendant operated a "Head Shop" on a "back alley" in Manchester where he sold "all kinds of things like beads, and a few dresses and posters." On July 26, 1969, the minor in question, then 14 years of age, accompanied by a girl friend went to this shop seeking to purchase a button or pin like that purchased by her friend the previous week. They looked around and found a velvet display card on a counter. The minor involved picked out a pin bearing the *241 slogan described in the complaint. She showed it to someone in the store, whose name she does not know, and paid him twenty-five cents for it. The two girls then went out to eat and later to a rectory in Manchester. A priest they were visiting "saw" the pin, explained its full meaning to them, and took it away. At a jury-waived trial the defendant was found guilty, sentenced to 30 days in the house of correction and fined $100.00.
The defendant argues that an essential element of the crime of contributing to the delinquency of a minor is proof that the act charged resulted in an adjudication of the minor's delinquency. This court has recently held "that the fact that the minor had not been found a delinquent in court proceedings under chapter 169 is immaterial." State v. Cross, 111 N.H. 22, 24, 274 A.2d 880, 882 (1971). A similar result has been reached in many other jurisdictions. State v. Blount, 60 N.J. 23, 27, 286 A.2d 36, 38 (1972); Annot., 18 A.L.R.3d 824 (1968); 43 C.J.S. Infants § 13, at 69-70 (1945). RSA ch. 169 is not only intended to protect delinquents, but more importantly to prevent nondelinquent minors from becoming delinquents. Lovvron v. State, 215 Tenn. 659, 389 S.W.2d 252 (1965). This purpose is best accomplished by protecting the latter from influences which might lead them to actual delinquency. State v. Cross supra; Ginsberg v. New York, 390 U.S. 629, 640-41, 20 L. Ed. 2d 195, 204-05, 88 S. Ct. 1274, 1281 (1968).
To sustain a violation of RSA 169:32 (Supp. 1972), the State need only prove that the acts of the defendant could reasonably be found to contribute to cause delinquency by endangering the morals of the minor herself or others. State v. Locks, 94 Ariz. 134, 382 P.2d 241 (1963). The State need not prove that the defendant's act has an absolutely certain and unmistakable tendency to cause the minor to lead an idle, dissolute, or immoral life. People v. Miller, 145 Cal. App. 2d 473, 477-78, 302 P.2d 603, 607 (1956).
Evidence of the slogan on the pin was introduced by the State. We cannot hold erroneous as a matter of law the finding and ruling implied in the verdict of guilty that the button was obscene within the standards to be applied to minors. Ginsberg v. New York, 390 U.S. 629, 20 L. Ed. 2d 195, 88 *242 S. Ct. 1274 (1968); see RSA 571-A:1 (Supp. 1972); RSA 571-B:1 (Supp. 1972). We also hold that the trial court could properly find and rule that the mere possession of the button could be injurious to the minor's moral well-being by tending to convince her that copulation by a 14-year-old girl was an acceptable act. Similarly, the wearing of the pin could lead to immoral solicitations thereby endangering her morals and those of others. People v. Miller supra; State v. Blount, 60 N.J. 23, 286 A.2d 36 (1972); State v. Locks, 94 Ariz. 134, 382 P.2d 241 (1963); State v. Hixson, 16 Ariz. App. 251, 492 P.2d 747 (1972).
It is uncontested that the defendant was in control of the premises where the sale was made. There was evidence that a girl friend of this minor had previously purchased there a pin "like that". These pins were displayed on a card on a counter. The trial court saw the minor and had an opportunity to conclude whether her minority should have been apparent to whoever sold the pin. The court could find that the defendant was aware of the character of the pins which were being offered for sale and sold in his establishment.
Defendant is charged with wilfully contributing to the delinquency of a minor by selling or causing to be sold to her the button in question. To act wilfully is "to act voluntarily and intentionally and not because of mistake or accident or other innocent reason." State v. Contreras, 105 R.I. 523, 536-37, 253 A.2d 612, 620 (1969); accord, People v. Reznick, 75 Cal. App. 2d 832, 838, 171 P.2d 952, 956 (1946). The trial court could properly find and rule that the sale of this button to the minor was intentional. The trial court could further conclude that the seller of this type of button should have realized that it would tend to be harmful to the morals of the purchaser or others. RSA 169:32 (Supp. 1972). This would warrant a finding and ruling that the defendant wilfully contributed to the delinquency of this minor as charged in the complaint. See State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970); Annot., 31 A.L.R.3d 848, 851, 854-60 (1970).
Defendant's exception to the admission of evidence of a prior purchase in defendant's shop by the minor's girl friend of a similar pin is overruled. The evidence was admissible *243 to show the absence of mistake or accident in the sale complained of. State v. Locks, 94 Ariz. 134, 137, 382 P.2d 241, 243 (1963). There is no indication that undue prejudice resulted to the defendant from its admission. Bunten v. Davis, 82 N.H. 304, 311, 133 A. 16, 20 (1926). McCormick, Evidence 438-41 (2d ed. 1972).
Defendant also maintains that his constitutional right to a speedy trial has been violated. The sale occurred on July 26, 1969, the complaint was filed on December 16, 1969, and he was tried and convicted in the district court soon thereafter. The appeal to superior court was called for trial on November 4, 1970. Defendant's counsel asked for a continuance and thereafter on November, 1970, two additional charges were filed against him. On January 8, 1971, he filed a motion to dismiss which was heard on February 17, 1971, and denied. The case was heard on June 11, 1971. This is not a history of "purposeful or oppressive" delays. United States v. Ewell, 383 U.S. 116, 120, 15 L. Ed. 2d 627, 631, 86 S. Ct. 773, 776 (1966); State v. Coolidge, 109 N.H. 403, 412, 260 A.2d 547, 554 (1969).
Exceptions overruled.
GRIMES, J., dissented; the others concurred.
GRIMES, J., dissenting:
In my view the statute as construed by the court is void for vagueness. It forbids acts "in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S. Ct. 126, 127 (1926); State v. Albers, 113 N.H. 132, 303 A.2d 197 (1973); Entertainment Ventures, Inc. v. Brewer, 306 F. Supp. 802 (M.D. Ala. 1969); Coon v. Cupp, 467 P.2d 140 (Ore. App. 1970); State v. Hodges, 457 P.2d 491 (Ore. 1969); Paulsen, The Legal Framework For Child Protection, 66 Colum. L. Rev. 679 (1966). Although I agree with the lofty purposes of the statute, they cannot constitutionally be accomplished by placing persons in a position of not knowing what conduct is prohibited and what is not. No one has been able to determine what conducttends *244 to produce delinquency of the type defined as deportment "as to injure or endanger the health or morals of himself or others". RSA 169:2 (Supp. 1972). A citizen can never know whether some act or omission of his "might just possibly, sometime, somewhere lead to some child's becoming a delinquent". State v. Crary, 10 Ohio Ops. 2d 36, 155 N.E.2d 262, 265 (1959); see Grayned v. Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972).
I would construe our statute more narrowly and thus avoid the constitutional invalidity. The statute by its terms requires proof that the defendant has "knowingly and wilfully done any act to produce, promote or contribute to the delinquency of such child". RSA 169:32 (Supp. 1972). There must in other words be some criminal intent. See Annot., 31 A.L.R.3d 848, 860 (1970). I believe that it must not only be proved that the defendant knowingly committed the act but also that he knew that it was an act which was likely to produce delinquency in the child.
In this case there is no evidence whatever that the defendant sold the button, that he knew it had been sold to a minor, that he authorized such sales to minors or that he was even in the store at the time of the sale. He was not shown to have the necessary criminal intent and in a case such as this it cannot be imputed to him from acts of an agent not directed by him. Opinion of the Justices, 25 N.H. 537, 541 (1852); Commonwealth v. Kempisty, 191 Pa. Super. 602, 159 A.2d 541 (1960); 22 C.J.S. Criminal Law § 84 (1961). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262547/ | 84 Cal.Rptr.2d 361 (1999)
71 Cal.App.4th 1114
CITY OF MORGAN HILL, Plaintiff,
v.
Ernest C. BROWN et al., Defendants, Cross-complainants and Respondents;
Margaret A. Seltzer, Defendant, Cross-defendant and Appellant.
No. H016088.
Court of Appeal, Sixth District.
April 30, 1999.
Rehearing Denied May 26, 1999.
Review Denied July 21, 1999.
*363 Margaret A. Seltzer in pro. per. and Whitehead, Porter & Gordon and Stephen L. Porter, San Francisco, for Defendant, Cross-defendant and Appellant Margaret A. Seltzer.
Clapp, Moroney, Bellagamba, Davis and Vucinich, Mark B. O'Connor, Merrilee C. Hague and Andrew R. Pollack, Menlo Park, for Defendants, Cross-complainants and Respondents Ernest Brown, et al.
ELIA, J.
The City of Morgan Hill (the City) filed a complaint in interpleader asking that Brown, Pistone, Hurley, & Van Vlear (the Firm) and attorney Margaret A. Seltzer, a former shareholder in the Firm, litigate between themselves their entitlement to legal fees (Fees) owed by the City. (Code Civ. Proc., § 386.)[1] The City deposited the Fees in court and the trial court discharged it from the litigation. The Firm then moved for summary judgment. It argued that the Firm was entitled to the Fees pursuant to the contingent fee agreement between the Firm and City and that any compensation due Seltzer was governed by agreements between the Firm and Seltzer. The trial court granted the summary judgment motion and entered judgment for the Firm. For reasons we explain, we will affirm.
Facts and Procedural Background
The Firm was incorporated in 1990 and had an office in Irvine, California.[2] In 1991, the City retained the Firm to represent it in two cases. In 1992, Seltzer joined the Firm as a shareholder. A San Francisco office was established and staffed by Seltzer. Seltzer was responsible for the City's cases.
In 1994, the City entered into an Amended Attorney-Client Fee Agreement with the Firm in which City agreed to compensate the Firm for legal services based upon a percentage of the City's recovery. In 1995, City approved a proposed settlement in the two cases. Pursuant to the terms of the Amended Attorney-Client Fee Agreement, the City owed attorney's fees in the amount of $563,866.82.
Disputes arose between Seltzer and the Firm over allocation of the attorney's fees and other issues. As a result, the Firm bought out Seltzer's shareholder interest. On May 31, 1995, the Firm terminated its professional relationship with Seltzer. Seltzer started her own law practice, the Seltzer Law Group, and retained the City as a client.
Because of conflicting demands upon the City regarding disbursement of the attorney's fees, on May 26, 1995, the City filed a complaint in interpleader. The complaint named as defendants Ernest C. Brown, Thomas A. Pistone, Seltzer, and the Firm. The amount interpleaded was $562,266.62.[3] Seltzer collaborated with City's counsel in bringing the complaint in interpleader.
Seltzer answered the interpleader complaint and also filed a cross-complaint against the Firm and shareholders. Her third amended cross-complaint included claims for breach of contract, wrongful discharge of employment, defamation, and other causes of action. The Firm answered the interpleader complaint and also cross-complained against Seltzer, asserting claims arising out of Seltzer's tenure at the Firm.
In August 1995, Seltzer and City together filed a motion for interlocutory order of discharge, attorney's fees, and related relief. On September 7, 1995, the matter was heard by Judge Conrad Rushing. Neither the Firm nor Seltzer objected to discharging City and allowing the Fees to be deposited into court.
*364 On January 8, 1996, Judge Rushing granted the motion. Among other things, the court ordered that City was discharged from the case and that the Fees be deposited into court.[4]
In the interim, in October 1995, the Firm moved for summary judgment/adjudication in the interpleader action. In support of its motion, the Firm included the following undisputed facts:
The Firm is a corporation, incorporated by articles of incorporation filed in 1990. Between 1994 and May 31, 1995, the Firm was named Brown, Pistone, Hurley, Van Vlear & Seltzer. Effective April 1, 1994, the Firm entered into an Amended Attorney-Client Fee Agreement with City. The Fee Agreement provided that attorney fees due under the agreement were to be paid to the "ATTORNEYS" defined as "Brown, Pistone, Hurley, Van Vlear & Seltzer, a professional law corporation, previously known as Ernest Brown & Company."
Seltzer entered into a Shareholder Agreement with the Firm. Under the Shareholder Agreement, a compensation committee determines the shareholder's compensation, including salaries and shareholder bonuses. Unless the compensation committee determines otherwise, bonuses are allocated based upon factors such as the shareholder's realized personal billings and whether the attorney was the originating attorney for the client.
The Shareholders Agreement also provides for repurchase of shares following the termination of a shareholder's employment. Once a shareholder is terminated, the shareholder "shall have no interest in goodwill, leases, accounts receivable, unallocated profits or other assets of the company." The Shareholder Agreement also provides, "All the Shareholders acknowledge and agree that the provisions set forth herein with respect to the repurchase of shares of the Stock upon the occurrence of certain events shall be exclusive and shall be in lieu of any other statutory procedures relating to the dissolution of the Company or other disposition of the Shares of the stock."
The Firm terminated Seltzer as a shareholder effective May 31, 1995.
In opposition to the summary judgment motion, Seltzer included her own declarations. Among other things, she stated, "I never made any claim [for the attorney's fees] to City, but instead after Brown and Pistone tried to interfere with my collection of the fee on behalf of BPHVS, I informed the City Attorney that I had an interest in the fee under our internal agreements." Her declaration also states, "I at all times attempted to collect the fee as an agent of BPHVS. Brown and Pistone instructed the City not to permit me to collect the fee as agent for BPHVS." Seltzer states, "My interest in the fee is based on contractual and other promises that profits will be distributed to partners of BPHVS based on certain percentages of the profits they generate for the firm from their practices."
On April 5, 1996, the trial court granted the summary judgment motion. The court found that the Fees were "owned" by the Firm and that Seltzer had no ownership interest in the Fees. Among other things, the trial court explained that "While Ms. Seltzer may have a claim for additional compensation or bonuses under partnership/shareholder agreements, it does not appear that she has an ownership interest or lien interest with respect to the particular contingent fee or specific `fund' herein which belong[s] solely to [the Firm]." The trial court determined that the law firm "shall recover the interplead [sic] funds and all interest thereon."
On April 16, 1996, Judge Fogel issued the order releasing the Fees to the Firm. Seltzer then filed a Motion To Revoke Interim Ruling and to Reconsider and Deny the Summary Judgment Motion. On April 19, 1996, Judge Fogel issued an order staying release of the Fees until after Judge Turrone ruled on Seltzer's motion for reconsideration. *365 On June 12, 1996, Seltzer's motion for reconsideration was denied.
Seltzer then petitioned for a writ of mandate and prohibition seeking an order vacating the summary judgment order. We summarily denied the petition.
On August 20, 1996, a judgment was entered on the interpleader action, finding that the Firm was the owner of the Fees.
This appeal ensued.[5]
Standard of Review
Summary judgment is granted when there are no triable issues as to any material facts and the moving party is entitled to judgment as a matter of law. (Code Civ. Proa, § 437c, subd. (c).) When reviewing a trial court's decision to grant summary judgment, we must identify the issues framed by the pleadings, and determine whether the moving party has established facts which negate the opposing party's facts and justify a judgment in the moving party's favor. When the moving party's facts prima facie justify a judgment, we determine whether the opposing party has demonstrated the existence of a triable issue of material fact. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252-1253, 32 Cal.Rptr.2d 223, 876 P.2d 1022.)
Discussion
Seltzer argues that the trial court erred in granting summary judgment. After reviewing the principles relating to the law of interpleader, we will conclude that the judgment should be affirmed.
A. Interpleader Law
When a person may be subject to conflicting claims for money or property, the person may bring an interpleader action to compel the claimants to litigate their claims among themselves. (Code Civ. Proc., § 386, subd. (b).)[6] Once the person admits liability and deposits the money with the court, he or she is discharged from liability and freed from the obligation of participating in the litigation between the claimants. (Williams v. Gilmore (1942) 51 Cal.App.2d 684, 689,125 P.2d 539; Hancock Oil Co. v. Hopkins (1944) 24 Cal.2d 497,150 P.2d 463.) The purpose of interpleader is to prevent a multiplicity of suits and double vexation. (Hancock Oil Co. v. Hopkins, supra, 24 Cal.2d at p. 508, 150 P.2d 463.) "The right to the remedy by *366 interpleader is founded, however, not on the consideration that a [person] may be subjected to double liability, but on the fact that he is threatened with double vexation in respect to one liability." (Pfister v. Wade (1880) 56 Cal. 43, 47.)
In the past, interpleader was available only if four requirements were met. These were (1) all claimants must have identical claims to the same thing, debt, or duty; (2) all adverse titles or claims must be dependent on or derived from a common source; (3) the person seeking the remedy must neither have an interest or claim in the subject matter; and (4) the person seeking the remedy must be an indifferent stakeholder and have no independent liability to any of the claimants. (Hancock Oil Co. v. Hopkins, supra, 24 Cal.2d at p. 508, 150 P.2d 463, 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 216, p. 281.)
Under current law, the scope of interpleader "'has been broadened and enlarged.'" (Hancock Oil Co. v. Hopkins, supra, 24 Cal.2d at p. 508, 150 P.2d 463; Williams v. Gilmore, supra, 51 Cal. App.2d. at p. 688, 125 P.2d 539.) Privity between the claimants is no longer required. Further, interpleader may be permitted even though one claimant seeks part of the fund and the other claimant seeks the entire fund amount. (Code Civ. Proc., § 386; Hancock Oil Co. v. Hopkins, supra, 24 Cal.2d at p. 508, 150 P.2d 463.) Partial interpleader, where the obligor admits some liability but makes a partial claim or asserts a partial interest, is also allowed. (Code Civ. Proc., § 386.) Finally, it has been stated that the "remaining restriction against independent liability is construed so that it is rarely an obstacle to the remedy." (4 Witkin, Cal. Procedure, supra, Pleading, § 219, pp. 283-284; see also Pacific Loan Management Corp. v. Superior Court (1987) 196 Cal. App.3d 1485,1490, 242 Cal.Rptr. 547.)
Although section 386 has broadened the scope of the interpleader remedy, it is still required that the claimants seek the same thing, debt, or duty. For example, in Hancock Oil Co. v. Hopkins, supra, 24 Cal.2d at page 508, 150 P.2d 463, a suit was brought by a lessee when rent and royalties were demanded by different claimants. In Conner v. Bank of Bakersfield (1920) 183 Cal. 199, 190 P. 801, suit was brought by a bank against rival claimants to a bank deposit. Mutual Life Ins. Co. v. Henes (1935) 8 Cal.App.2d 306, 47 P.2d 513 involved an insurer's suit against claimants to the proceeds of an insurance policy. These cases all involved claims relating to the same thing, debt, or duty held by the stakeholder. If the claims do not relate to the same thing, debt, or duty, then interpleader is improper. (Van Orden v. Anderson (1932) 122 Cal.App. 132, 142, 9 P.2d 572.) As the California Supreme Court explained, "the very rationale of interpleader compels the conclusion that [section 386] does not allow the remedy where each of the claimants asserts the right to a different debt, claim or duty." (Hancock Oil Co. v. Hopkins, supra, 24 Cal.2d at p. 504,150 P.2d 463.)
B. Analysis
In this case, Seltzer and the Firm assert the right to different things, debts or duties owed from different obligors. The debt claimed by the Firm is the Fees; the obligor is the City. The debt claimed by Seltzer is compensation under the Firm's internal agreements; the obligor is the Firm. The fact that the amount of money due Seltzer under the Shareholder's Agreement and other agreements with the Firm may be partly based upon the amount of the Fees from City does not alter the fact that the debt owed Seltzer is due from the Firm under her agreements with the Firm. Indeed, Seltzer admits that she is owed money pursuant to the Firm's internal agreements, concedes trying to collect the Fees from City only as an agent of the Firm and does not dispute that the Firm's internal agreements must be used to calculate the specific sum owed. Given that Seltzer concedes that City does not owe the Fees to her, Seltzer is unable to demonstrate that Seltzer and Firm assert the right to the same thing, debt, or duty owed by City.
Cases cited by Seltzer only highlight the differences between this case and cases where interpleader is permitted. (See e.g. Changaris v. Marvel (1964) 231 Cal.App.2d *367 308, 41 Cal.Rptr. 774; Simas v. Conselho Supremo (1920) 184 Cal. 511, 194 P. 1001; Sullivan v. husk (1907) 7 Cal.App. 186, 94 P. 91; Leroy v. Bella Vista Inv. Co. (1963) 222 Cal.App.2d 369, 35 Cal.Rptr. 128.) For example, in Changaris v. Marvel supra, 231 Cal.App.2d 308, 41 Cal.Rptr. 774, an attorney representing five plaintiffs obtained a settlement in their wrongful death lawsuit. The plaintiffs disagreed on how the settlement should be divided. After deducting attorney's fees and costs, the attorney interpleaded the settlement balance and was discharged from further responsibility. Thus, unlike the present situation, in Changaris, all claimants asserted a right to the same debt owed by the same obligorthe defendant. (Id. at p. 309, 41 Cal.Rptr. 774.)
Seltzer also cites Simas v. Conselho Supremo, supra, 184 Cal. 511, 194 P. 1001. In Simas, a father and brother agreed to insure their lives in each other's favor. Father, in violation of the agreement, named plaintiff as the beneficiary. When the father died, the insurer did not know whether to pay the brother or the plaintiff. Under these circumstances, the court decided the insurer could compel the claimants to litigate the matter between themselves. (Id. at p. 511.) Simas is distinguishable because both the plaintiff and the brother claimed the insurer had a duty to pay the benefits to them. By contrast, Seltzer does not assert that City has a duty to pay the Fees to her. Seltzer asserts that Firm has a duty to pay her a portion of the Fees Firm receives from the City.
Sullivan v. Lusk, supra, 7 Cal.App. 186, 94 P. 91 is also distinguishable. In Sullivan, a trustee was allowed $2,595 to pay attorneys (who were not members of the same firm) employed by him on behalf of the trust. The trustee interpleaded the two attorneys, alleging that one claimed the whole sum and the other claimed half. Unlike this case, both Sullivan attorneys had a possible ownership interest in the money held by the trustee.
Seltzer argues that the trial court's ruling effectively reinstated the privity requirement long since abandoned by California courts. Seltzer is correct about the demise of that rule. However, she is incorrect in asserting that it was applied here. Requiring that "all of the adverse titles or claims must be dependent, or be derived from a common source" (Hancock Oil Co. v. Hopkins, supra, 24 Cal.2d at p. 503, 150 P.2d 463), is not the same as requiring that the claimants assert a right to payment for the same thing, debt or duty from the same obligor. For example, in Hancock, a lessee was permitted to interplead a lessor and a stranger to the lease where both claimed the lease royalties and rent. In so permitting, the California Supreme Court established that claimants need not be in privity with each other. Relying upon Hancock, Seltzer argues that interpleader is proper here because she was a stranger to the Contingency Fee Agreement. But obviously Hancock did not permit interpleader simply because one of the claimants was a stranger to the lease. In Hancock, the stranger to the lease, a copartnership, claimed it was entitled to the rents and royalties because it owned the real property described in the lease and because the lessor held the property in trust for the copartnership. Thus, the copartnership had a basis for asserting that it had a right to receive the royalties and rents from the lessee. By contrast, Seltzer has no basis for asserting that she has the right to receive the Fees from the City. Had Seltzer alleged that Firm assigned the Fees to her, or had Seltzer alleged that City had also agreed, in contradiction of City's agreement with Firm, to pay Seltzer the Fees, then the situation might be different. In both those circumstances, both Firm and Seltzer would be seeking the same thing, debt or duty from the same obligor.
In this case, all Seltzer has is a right against the Firm for compensation pursuant to her internal agreements with the Firm. City owed nothing to Selteer. Under its Contingency Fee Agreement with Firm, City owed the Fees to the Firm. Had Seltzer remained with the Firm, the Fees would have been paid to Firm, and Firm would have paid Seltzer. Just because Seltzer's relationship with the Firm has been severed does not give Seltzer the right to ignore her agreement with Firm and seek payment directly from the City.
*368 There are important policy reasons for our result. First, allowing interpleader in these circumstances would constitute a form of prejudgment attachment without the protections generally afforded those subject to that provisional remedy. (See e.g. Alexander, Claims In Interpleader, Abuse and Remedy (1969) 44 Cal. State Bar J. 210, 211.) When a law corporation discharges an attorney, and the attorney sues for unpaid bonuses, the attorney could simply sue one of the firm's clients for whom the attorney did work, and assert a right to the fee. Using the remedy of interpleader, the attorney could keep the fee tied up in court pending adjudication of the attorney's lawsuit against the firm. This would give the attorney an unfair negotiating advantage, and also give attorneys an unfair advantage as compared to other wrongful termination plaintiffs who are unable to sue a company's customers claiming the fund of the receivables due the employer.
Second, the purpose of interpleader is to prevent a multiplicity of suits and double vexation. (Hancock Oil Co. v. Hopkins, supra, 24 Cal.2d at p. 508, 150 P.2d 463; Pfister v. Wade, supra, 56 Cal. at p. 51.) In this case, the City was not faced with a valid threat of double vexation. Under its agreement with Firm, City owes the Fees to Firm. City had no agreement with Seltzer, Firm did not assign the Fees to Seltzer, nor was there any basis for Seltzer to assert a claim or lien rights to the Fees. During her lawsuit against Firm, Seltzer may well prove that her work on the City's account entitles her to some payment from Firm but she cannot prove that she was the individual authorized to receive the Fees from City.
Third, the unusual circumstances here suggest that the interpleader remedy was not being used solely as a means to protect the stakeholder. Even though Seltzer had no right to receive the Fees from City and City faced no valid threat of double vexation, City's decision to file the interpleader complaint likely stemmed from its continuing relationship with Seltzer. When Seltzer's relationship with the Firm ended, Seltzer retained the City as her client, and assisted the City in filing its complaint in interpleader and bringing the motion for interlocutory relief. Concerns about a claimant using interpleader as a substitute for prejudgment attachment certainly seem justified in a situation such as this, where one of the claimants, as the stakeholder's attorney, assists the stakeholder in obtaining the interpleader remedy against that claimant's former law firm. In such circumstances, "[i]nterpleader... is used not as a protection for the stakeholder, but to keep money from the party legally entitled to the fund. It is, in effect, an attachment." (Alexander, Claims In Interpleader, Abuse and Remedy, supra, 44 Cal. State Bar J. at p. 213.) Such a result does violence to the concept of interpleader as an equitable proceeding. (See e.g. Williams v. Gilmore, supra, 51 Cal.App.2d at p. 689,125 P.2d 539.)
In short, the undisputed facts show that Seltzer has no right to collect the Fees from City nor is she given any lien rights in those Fees. Her claim is based upon a right to sue the Firm for wrongful termination and payment of compensation. In the process of that claim, she may show that her work on the City's account entitles her to payment from the Firm but she cannot show she was entitled to receive the Fees from City. Interpleader speaks of conflicting claims against the same obligor over the same fund; not on the possible eventual right to a judgment that might be satisfied out of that fund.
C. Trial Court Rulings
Having so concluded, we next consider Seltzer's argument that Judge Turrone's finding that Firm "owned" the Fees conflicts with Judge Rushing's ruling discharging City and allowing deposit of the Fees into court. As explained below, there was no error.
When a person brings an interpleader action, a two-step procedure is generally followed. First, it is determined whether the plaintiff may bring the suit and force the claimants to interplead. Second, if it is so determined, then the court will discharge the plaintiff from liability and "the action may proceed for the determination of the rights of the various claimants to the property which is then in the custody of the court." (Weingetz *369 v. Cheverton (1951) 102 Cal.App.2d 67, 80,226 P.2d 742.)
Although the interpleader procedure typically involves two steps, there is no basis for Seltzer's suggestion that completion of stage onedischarge of the stakeholder and deposit of the fees in courtprevents summary disposition at stage two. In this case, Judge Rushing could have ruled in the first instance that interpleader was inappropriate and refused City's request to be discharged. But the fact that he did not does not mean Judge Turrone erred. By granting summary judgment, Judge Turrone did not interfere with Judge Rushing's finding because Judge Rushing did not decide how the parties' claims should be adjusted nor did he rule that the Fees were to remain deposited in court until the litigation between the Firm and Seltzer was complete. Judge Rushing only determined that stage one of the interpleader, resulting in discharge of the City and deposit of the fees in court, was proper. Moreover, Judge Rushing's decision to discharge City and allow the Fees to be deposited into court was justified since neither Seltzer nor the Firm disputed City's right to be discharged. Since neither party objected, discharging City and allowing the money to be deposited into court was not erroneous. (Lincoln Nat. Life Ins. Co. v. Mitchell (1974) 41 Cal.App.3d 16, 18, 115 Cal.Rptr. 723.)
Seltzer complains that the trial court did not consider the parties' cross-complaints in its summary judgment ruling. Seltzer's argument is really a variation of her claim that the trial court was required to resolve all of the parties' disputes before granting summary judgment. She emphasizes that once the stakeholder is discharged and the money deposited into court, all that is left for the court to resolve is the parties' dispute. She contends that during this second stage, the issues are framed by the parties' cross-complaints against each other, and that the cross-complaints here raised disputed facts regarding Seltzer's claims to compensation pursuant to the Firm's internal agreements.
We conclude that there was nothing improper in the procedure followed. As already noted, neither Seltzer nor the Firm objected to permitting City to deposit the money with the court and then be discharged. When Firm then sought summary judgment as to the ownership of the Fees, there is no reason why the trial court should have been prohibited from ruling that City "owned" the Fees given the undisputed facts. The two-step interpleader procedure is predicated upon the notion that "the action may proceed for the determination of the rights of the various claimants to the property which is then in the custody of the court." (Weingetz v. Cheverton, supra, 102 Cal. App.2d 67, 80, 226 P.2d 742, emphasis added.) Because the undisputed facts demonstrated that Firm had the right to that property, summary judgment was proper. The fact that the parties have other claims against each other is not a persuasive reason for denying summary judgment as to ownership of the fund given that the undisputed facts show that only one of the parties is entitled to that ownership. Interpleader confers rights only concerning discharge of the stakeholder and then leaves the conflicting claims to the fund for proper later resolution. If it turns out, as here, that a claimant has no viable claim to the fund, then distribution of the fund to the remaining claimant is entirely appropriate.
In addition, the matter is appealable despite the fact that the cross-complaints remain to be litigated. The one final judgment rule seeks to avoid oppressive and costly piecemeal disposition and multiple appeals in a single action by requiring that review of intermediate rulings await final disposition of the case. (9 Witkin, Cal. Procedure, (4th ed. 1997) Appeal, § 58, p. 113.) "A purported final judgment rendered on a complaint without adjudication of the issues raised by the cross-complaint is not appealable absent some exception to the rule." (American Nat. Bank v. Stanfill (1988) 205 Cal.App.3d 1089, 1095, 252 Cal.Rptr. 861.) However, there is an exception to the one final judgment rule when there is a final determination of some collateral matter distinct and severable from the general subject of the litigation. If this determination requires the aggrieved party immediately to pay money or perform some other act, then that party is entitled to appeal even though litigation of the main issues continues. "The *370 determination is substantially the same as a final judgment in an independent proceeding." (9 Witkin, Cal. Procedure, supra, Appeal, § 60, p. 116.) This exception applies here. Summary judgment as to the ownership of the Pees constituted a final determination as to the complaint in interpleader and is appealable since it directs the payment of the Fees to the Firm.[7]
Finally, Seltzer says the status of the entity to whom the Fees are owed is disputed and therefore summary judgment was improper. The undisputed facts refute this contention. Seltzer presented no evidence to dispute the fact that the Firm was incorporated in 1990, and underwent name changes pursuant to Corporations Code section 900. Indeed, in her separate statement in response to the Firm's summary judgment motion, Seltzer asserts the fact the Firm changed its name from Brown, Pistone, Hurley, Van Vlear & Seltzer to Brown, Pistone, Hurley, & Van Vlear is not a material issue of fact and irrelevant to the disposition of the interpleader claim. Seltzer also cites Jewel v. Boxer (1984) 156 Cal.App.3d 171,203 Cal.Rptr. 13 and Fox v. Abrams (1985) 163 Cal.App.3d 610, 210 Cal.Rptr. 260. Although those cases may assist Seltzer in her claim for compensation from the Firm, they do not involve interpleader or demonstrate that under the circumstances here a terminated attorney has an ownership interest or lien upon fees owing from the client to the corporation.
Disposition
The judgment is affirmed.
COTTLE, P.J., and PREMO, J., concur.
NOTES
[1] All further unspecified statutory references are to the Code of Civil Procedure.
[2] On February 13, 1990, the Firm filed its articles of incorporation. Until January 1, 1994, the Firm was named Ernest C. Brown, Law Corporation, and did business as Ernest Brown & Company. From January 1, 1994 until May 31, 1995, the Firm was named Brown, Pistone, Hurley Van Vlear & Seltzer. After Seltzer was terminated from the Firm, the Firm amended its articles of incorporation to change its name to Brown, Pistone, Hurley, & Van Vlear. (Corp. Code, § 900.) The Firm is currently known as Ernest Brown & Company. For ease of reference, we will refer to respondent as the Firm.
[3] The Fees represent $563,866.82 less the costs of the escrow.
[4] Judge Rushing also determined that the Firm was restrained from disclosing confidential information regarding the City's settlement, and Seltzer was awarded attorney's fees incurred in bringing the motion. The Firm appealed the attorney's fee award and "gag order" (City of Morsan Hill v. Brown (Dec. 19, 1996) H015130 [nonpub. opn.]). We concluded that the provisions complained of should be stricken from the order.
[5] After oral argument, Seltzer requested that we dismiss the appeal on the grounds that the parties had settled their dispute. After the record on appeal is filed, dismissal of the action based on abandonment or stipulation of the parties is discretionary, rather than mandatory. (Cal. Rules of Court, rule 19(b); Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8, 31 Cal.Rptr.2d 776, 875 P.2d 1279.) "We have inherent power to retain a matter, even though it has been settled and is technically moot, where the issues are important and of continuing interest." (Burch v. George (1994) 7 Cal.4th 246, 253, fn. 4, 27 Cal. Rptr.2d 165, 866 P.2d 92.) The issues in the present case satisfy these criteria and therefore we follow established precedent in retaining jurisdiction to resolve the legal issue presented in this case.
[6] Section 386, subdivision (b) provides, in pertinent part, that: "Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several claims. [¶] When the person, firm, corporation, association or other entity against whom such claims are made, or may be made, is a defendant in an action brought upon one or more of such claims, it may either file a verified cross-complaint in interpleader, admitting that it has no interest in the money or property claimed, or in only a portion thereof, and alleging that all or such portion is demanded by parties to such action, and apply to the court upon notice to such parties for an order to deliver such money or property or such portion thereof to such person as the court shall direct; or may bring a separate action against the claimants to compel them to interplead and litigate their several claims. The action of interpleader may be maintained although the claims have not a common origin, are not identical but are adverse to and independent of one another, or the claims are unliquidated and no liability on the part of the party bringing the action or filing the cross-complaint has arisen. The applicant or interpleading party may deny liability in whole or in part to any or all of the claimants. The applicant or interpleading party may join as a defendant in such action any other party against whom claims are made by one or more of the claimants or such other party may interplead by cross-complaint; provided, however, that such claims arise out of the same transaction or occurrence...."
[7] Seltzer also claims the trial court did not comply with the requirements of section 437c. Our review of the record discloses that these arguments are without merit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262557/ | 84 Cal.Rptr.2d 500 (1999)
71 Cal.App.4th 1456
PACIFIC PREFERRED PROPERTIES, INC., Cross-Complainant and Respondent,
v.
Kelvin H. MOSS et al., Cross-Defendants and Appellants.
Norcal Realty Partners, Cross-Complainant and Respondent,
v.
Kelvin H. Moss et al., Cross-Defendants and Appellants.
No. C028404.
Court of Appeal, Third District.
April 29, 1999.
*501 Moore, Meegan, Hanschu & Kassenbrock, Mark R. Kassenbrock and Peter J. Pullen, Sacramento, for Cross-Defendants and Appellants.
Howard J. Stagg IV, Sacramento, for Cross-Complainants and Respondents.
Certified for Partial Publication.
BLEASE, Acting P.J.
This is an appeal from orders after judgment denying a motion for an award of attorney's fees.
The appellants, Kelvin and Leslie Moss (collectively the Mosses), were sued on cross-complaints by the respondents, Pacific Preferred Properties, Inc. (PPP) and NorCal Realty Partners (NorCal), for wrongfully foreclosing a deed of trust that the Mosses received as part of the consideration for the purchase of their house. After prevailing on summary judgments as to the cross-complaints, the Mosses sought an award of attorney's fees predicated upon an attorney's fees provision in the purchase contract for their house which expressly applies to actions instituted by or against the broker arising out of the house sales contract. The Mosses contended that NorCal was liable as the principal that operated the brokerage named in the purchase contract and PPP was liable as the successor-in-interest of NorCal.
The trial court denied an award on the ground that, notwithstanding the attorney's fees award provision, NorCal and PPP could not be held liable because the broker was not a party to the contract. We disagree.
In the published portion of the opinion we conclude the named broker was a party to the contract containing the attorney's fees provision.[1]
We will reverse the orders denying an award of attorney's fees.
*502 FACTS AND PROCEDURAL BACKGROUND
In August 1993 the Mosses sold a house to Charles and Elizabeth Morgan (the Morgans). As a part of the consideration the Morgans assigned to the Mosses a note secured by a deed of trust on a car wash. The Morgans also personally guaranteed the obligation evidenced by the note. The Morgans earlier had sold the car wash to Harold Langerman and received the secured note in that transaction.
The deed of trust securing the note provides that if Langerman sold the property the secured obligations would immediately become due and payable at the option of the holder. In December 1993 the Mosses learned Langerman intended to sell the car wash property. They sent a letter to Langerman and the Morgans asserting such a transaction would require paving off the note under the due on sale clause.
In September 1994 Langerman sold the car wash to Gary Matranga. The Mosses demanded payment of the note and when that was not forthcoming they foreclosed pursuant to the deed of trust and demanded payment by the Morgans pursuant to the guarantee. Litigation ensued. Matranga sued, among others, PPP. The Morgans sued, among others, PPP and NorCal. PPP cross-complained against the Mosses in the Matranga action; NorCal cross-complained against the Mosses in the Morgan action. The charging allegations against the Mosses in each cross-complaint are essentially identical; the NorCal allegations are as follows.
"12. Cross-Complainant is informed and believes and thereon alleges that in or about June 1993, Morgan and Trust assigned the car wash Note and incorrect Deed of Trust to Moss, and that both Morgan and Moss eventually had knowledge that said Deed of Trust had been improperly prepared by Fidelity, and incorrectly contained an acceleration/due on sale clause. Cross-Complainant is further informed and believes and thereon alleges that Morgan communicated to Moss that said acceleration/due on sale clause in the said Deed of Trust was incorrect, and that said Note could not be accelerated, upon the sale or transfer of the car wash property.
"13. Cross-Complainant is informed and believes and thereon alleges that Moss, Trust and Morgan, had knowledge of the defect in said Deed of Trust, and conspired to foreclose on the subject car wash, causing the alleged damages for which Plaintiff complains, and damages to Cross-Complainant herein."
Thereafter, the original Matranga and Morgan actions were consolidated.
The principal legal theory of the PPP and NorCal cross-complaints was that the Mosses knew the due on sale clause had been included in the deed of trust by mistake and had improperly foreclosed against Matranga and enforced the guarantee against the Morgans, causing the alleged damages which led Matranga and the Morgans to sue PPP and NorCal.
The Mosses moved for summary judgment on the ground there was no substantial evidence to support the essential allegation the Mosses knew of the alleged mistake concerning the due on sale clause before they acquired the note secured by the deed of trust.
The trial court granted the motion for summary judgment, concluding the Mosses established as undisputed that they did not have knowledge of the alleged mistake concerning the due on sale clause and therefore had done nothing wrongful in enforcing the obligations as holders in due course. The Mosses prepared, and the trial court signed and entered, a single judgment document in favor of the Mosses and against PPP and NorCal.
Thereafter, the Mosses moved for an award of attorney's fees, claiming an entitlement as a result of the following provision of the form real estate purchase contract document used for the 1993 sale of the Mosses' house to the Morgans.
"22. ATTORNEY'S FEES: In any legal action, proceeding or arbitration arising out of this agreement, whether instituted by or against the BUYER or SELLER, or the Brokers named herein, the prevailing *503 party(s) shall be entitled to reasonable attorney's fees and costs."
The broker named in the contract is Prudential California Realty, which acted as both the listing and selling agent. The contract recites that it was "prepared by Anthony E. Lema for California Prudential." The Mosses' motion notes this and, as related, asserts that at the time of the transaction, California Prudential Realty was operated by NorCal and that subsequently PPP succeeded to NorCal's interest.
PPP and NorCal opposed the attorney's fees claim on the ground there were no written agreements between the Mosses and either PPP or NorCal. The joint opposition memorandum argues the Mosses' theory is fallacious because the gravamen of the cross-complaint is wrongful foreclosure of the car wash deed of trust and not an action on the house purchase contract. Therefore, "[t]here is simply no written agreement containing an attorney's fees clause between either entity, NorCal or [PPP] and Moss...." The memorandum then moves on to case law, discussed post, concerning liability of a broker under an attorney's fees clause in a real estate purchase contract. Notably lacking in the memorandum is any denial of the Mosses' claims that NorCal was the principal for California Prudential Realty and that PPP was the successor in interest of NorCal.
The matter came on for hearing on September 22, 1997. The trial court said the question is "whether there's a contract in which the brokers are a party" and decided that in these circumstances the broker was not a party to the Mosses' house purchase contract and thus NorCal and PPP could not be bound under its attorney's fees provision. The Mosses appeal from the denial of their motion.
DISCUSSION
I[*]
II
The Mosses contend the trial court erred in denying their motion for an award of attorney's fees.
They claim the trial court's determination the broker was not a party to the contract containing the attorney's fees clause is incorrect. PPP and NorCal reply the trial court was correct and there is ho written contract providing for an award of attorney's fee on which an award can be predicated. The Mosses' argument is persuasive and their contention of error is meritorious.
"There must be at least two parties to a contract, a promisor and a promisee, but there may be any greater number." (Rest.2d Contracts, § 9.) "A `contract' may be a complex transaction. The parties to it may be many; and these parties may not be divided into two separate `groups', the members of each `group' having common `interests' and acting as a `unit.' And yet, they may execute a single document, with two or more making certain promises together and in conjunctive form, and with promises being made to two or more others. The performances promised may be separate instead of single and undivided, one payment or transfer to go to A and another to go to B." (4 Corbin, Contracts (1951) § 940, p. 792.) Thus, there is no inherent impediment to a broker making a contract to pay attorney's fees, in any action arising from the contract, by means of the same document used to memorialize the real estate purchase contract between buyer and seller. The question is whether that occurred in this case.
The trial court held and the respondents assert that it did not, relying on Super 7 Motel Associates v. Wang (1993) 16 Cal. App.4th 541, 20 Cal.Rptr.2d 193 (hereafter Super 7 ).[2]Super 7 is inapposite.
In Super 7 the broker prevailed in an action brought by the buyer and claimed attorney's fees under paragraph 14 of the real estate purchase contract document which provided: "In any action or proceeding arising out of this agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs." (16 Cal.App.4th at p. *504 544, 20 Cal.Rptr.2d 193.) The document had two parts; paragraph 14 was contained in the first part, which addressed the rights and obligations of the buyer and the seller and contained only a single mention of the broker, namely, a provision consenting to disclosure of the sale information to the multiple listing service. The second part of the document addressed only the broker's commission agreement and contained an attorney's fees clause providing: "In any action between Broker and Seller arising out of this agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs." The broker had subscribed to this portion of the document. (Ibid.)
The Super 7 opinion concludes the broker was not a party to "the contract containing the attorney fee clause" on which he relied. (16 Cal.App.4th at p. 545, 20 Cal.Rptr.2d 193.) It reasons the signature of the broker only signified his assent to the commission agreement aspect of the document. (Id, at p. 546, 20 Cal.Rptr.2d 193.) The opinion then "confirms" the conclusion by showing that construction of the provisions of the deposit receipt belies the claim the broker is within the meaning of the word "party" in the paragraph 14 attorney's fees provision. (Ibid.)
In this case, the real estate purchase agreement also contains a portion principally addressed to the purchase and sale obligations of the buyer and seller and a portion largely (albeit not entirely)[3] addressed to the commission agreement between the seller and the broker. The agreement differs from the one at issue in Super 7, in that several references to the broker occur in the "buysell" portion of the document.[4]
The critical difference between this case and Super 7 is the attorney's fees provision in issue here (paragraph 22) unambiguously includes the broker within the ambit of its benefit provisions and its performance obligations. There can be no claim "the prevailing party," as used in the attorney's fees provision, is not intended to apply to the broker. The trial court attempted to evade the implication of party status arising from this salient consideration by characterizing the broker as an intended third party beneficiary of the buyer/seller contract. However, that ascription does not fit; the attorney's fees provision is not, of necessity, a benefit.
The Mosses submit that if they are not prevented from recovery of attorney's fees by Super 7, they are entitled to recover under an earlier case of this court, Childers v. Edwards (1996) 48 Cal.App.4th 1544, 56 Cal.Rptr.2d 328. In Childers a broker was permitted to recover an attorney's fees award against a buyer who unsuccessfully sued for fraud under an attorney's fees clause identical to the one in this case. However, in that case no question was tendered or discussed whether the clause applied against a broker where the broker was not a party to the contract. Childers is not authority on point on an issue which it neither addressed nor decided. (See, e.g., People v. Ton (1989) 47 Cal.3d 966, 978, fn. 7, 254 Cal.Rptr. 811, 766 P.2d 577.)
The question here must be resolved under the law of formation of contracts. The attorney's fees provision in paragraph 22 could apply for or against the broker, depending upon who prevails. In pertinent part the attorney's fees provision in that paragraph is a statement the broker will pay attorney's fees in prescribed circumstances, i.e., to the prevailing party in any proceeding to which the broker is a party "arising out of [the] agreement." When a broker supplies a contract document to the buyer and seller containing a clause of this kind, the broker manifests an intention to pay attorney's fees in ensuing litigation if the broker does not prevail. The manifestation is made so as to justify the buyer and seller in understanding that a commitment has been made. That is to say, as paragraph 22 expressly provides, the broker promises to pay attorney's fees if it is not the prevailing party in litigation arising out of the real estate purchase contract. (See Rest.2d Contracts, § 2.)
When the buyer and the seller execute the document they manifest assent to *505 the reciprocal attorney's fees right and obligation. This results in a manifestation of mutual assent on the part of two or more persons to the exchanged attorney's fees promises requisite for an agreement and a bargain. (See Rest.2d Contracts, § 3; see generally Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342, 5 Cal. Rptr.2d 154.) In these circumstances, a tripartite contract concerning the award of attorney's fees is formed between buyer, seller and broker. (See Rest.2d Contracts, § 1.)
The trial court erred in determining that the Mosses could not enforce that contract because the broker was not a party to that contract.
III[**]
DISPOSITION
The orders denying an award of attorney's fees are reversed. The Mosses shall recover the costs of this appeal. The matter is remanded to the trial court for further proceedings consistent with this opinion.
DAVIS, J., and RAYE, J., concur.
NOTES
[1] The Reporter of Decisions is directed to publish the opinion except Part I and Part III of the Discussion.
[*] See footnote 1, ante.
[2] They also cite Sweat v. Hollister (1995) 37 Cal. App.4th 603, 43 Cal.Rptr.2d 399, a case which simply follows Super 7. Since Sweat concerns an identical situation, it warrants no separate discussion or analysis.
[3] It also provides for the seller's acceptance and authorization of the broker to deliver the acceptance.
[4] For example, the agency relationships of broker to buyer and seller are set forth and there are disclaimers of representations by the broker concerning various matters.
[**] See footnote 1, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262560/ | 84 Cal.Rptr.2d 384 (1999)
71 Cal.App.4th 1276
FILET MENU, INC., Plaintiff and Appellant,
v.
Warren CHENG, Defendant and Respondent.
No. B118633.
Court of Appeal, Second District, Division Four.
May 4, 1999.
*385 Douglas R. Holmes, Santa Fe Springs, for Plaintiff and Appellant.
John R. Sommer, Los Angeles, for Defendant and Respondent.
CURRY, J.
Respondent Warren Cheng demurred to the first amended complaint for breach of contract of appellant Filet Menu, Inc. (hereafter "Filet Menu"), contending that its claims were time-barred. The trial court sustained the demurrer, reasoning that the tolling provisions of Code of Civil Procedure section 351, as applied to the facts alleged concerning Cheng, violated the commerce clause of the federal Constitution. We reverse.
FACTS
Filet Menu's first amended complaint alleges the following facts: Filet Menu is a California corporation whose principal place of business is in California. Cheng is a resident of California, and Steve Chen resides in Bellevue, Washington. Cheng and Chen owned a business named "Cucina California."
On January 4, 1991, Cheng and Chen entered into an agreement entitled "Credit Application and Agreement" with Filet Menu.[1] On the agreement, Chen stated that his home address was in Bellevue, Washington. The agreement provided: "If customer cancels or breaches all or any part of his pending contracts with Filet Menu, customer agrees to promptly pay a cancellation charge equaling 75% of the total remaining contract balance, which customer agrees is fair and reasonable, although Filet Menu's lost profits from these contracts, which are difficult to ascertain, may be considerably greater than 75%."
Pursuant to this agreement, Cheng, acting on behalf of Cucina California, placed orders with Filet Menu for pizza boxes, handle bags, placemats, assorted napkins, menus, and other items in June and July 1991. Shipments of these items were delivered to Cheng's and Chen's location in Vancouver, Canada. On November 30, 1991, Cheng and Chen refused to pay for the goods shipped and to accept further deliveries.
RELEVANT PROCEDURAL HISTORY
Filet Menu initiated this action against Cheng and Chen on April 8, 1997. On July 24, 1997, Filet Menu filed a first amended complaint (hereafter "complaint"), asserting claims for breach of contract, alter ego liability, account stated, and quantum meruit. The complaint alleged that Cheng and Chen owed Filet Menu $18,570 for the items shipped, as well as $1,007,433 for Filet Menu's loss of profits.
The trial court sustained Cheng's demurrer to the complaint without leave to amend on October 7, 1997, and Filet Menu's action against Cheng was dismissed on October 29, 1997.
DISCUSSION
Filet Menu contends that the trial court erred in sustaining the demurrer without leave to amend. We agree.
A. Standard of Review
"Because a demurrer both tests the legal sufficiency of the complaint and involves the trial court's discretion, an appellate court employs two separate standards of review on appeal. [Citation.] ... Appellate courts first review the complaint de novo to determine whether or not the ... complaint alleges facts sufficient to state a cause of action under any legal theory, [citation], or in other *386 words, to determine whether or not the trial court erroneously sustained the demurrer as a matter of law. [Citation.]" (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879, 6 Cal.Rptr .2d 151, fn. omitted.)
"Second, if a trial court sustains a demurrer without leave to amend, appellate courts determine whether or not the plaintiff could amend the complaint to state a cause of action. [Citation.]" (Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 879, fn. 9, 6 Cal.Rptr.2d 151.)
Here, Filet Menu stands on the complaint as alleged, and proposes no amendments. Accordingly, the only question before us is whether the complaint, as alleged, states legally sufficient claims.
B. Section 351
The key issue presented concerns the constitutional soundness of Code of Civil Procedure section 351.
Generally, actions founded upon a written contract are subject to a four-year statute of limitations (Code Civ. Proc., § 337, subd. (1)), and actions in quasi-contract are subject to a two-year statute of limitations (Code Civ. Proa, § 339, subd. (1); 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 480, p. 605). However, Code of Civil Procedure section 351 provides that "[i]f, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action."
Here, the complaint alleges: "Any applicable statute of limitations has been tolled as against defendants including and specifically defendant CHENG because said defendants have been out of the state for a sufficient amount of time to prevent the running of any applicable statute of limitations to and [sic] including the four-year statute of limitation for breach of a written contract. Defendant CHENG has been a resident of the state of California from 1991 to the present despite various absences. Therefore, Code of Civil Procedure Section 351 will toll the applicable four-year statute of limitation."
In sustaining Cheng's demurrer, the trial court concluded, on the facts as alleged, that (1) the tolling provisions of Code of Civil Procedure section 351 are constitutionally infirm under the commerce clause of the federal Constitution (art. I, § 8, cl.3), and that (2) Filet Menu's claims against Cheng were therefore time-barred. Because Filet Menu does not dispute that its claims are untimely absent tolling, our inquiry is whether section 351 violates the commerce clause on the facts alleged in the complaint. (See Bendix Autolite Corp. v. Midwesco Enterprises (1988) 486 U.S. 888, 893, 108 S.Ct. 2218, 100 L.Ed.2d 896; Mounts v. Uyeda (1991) 227 Cal.App.3d 111, 122, 277 Cal.Rptr. 730.)
"The term `commerce' as used in the commerce clause ... means `intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.' [Citation.]" (United States v. Hanigan (9th Cir.1982) 681 F.2d 1127, 1130, quoting Gibbons v. Ogden (1824) 22 U.S. (9 Wheat.) 1, 190, 6 L.Ed. 23 [movement of undocumented Mexican laborers across national border into Arizona is commerce within meaning of the commerce clause].) Here, the complaint alleges that the underlying agreement was signed by Filet Menu and Cheng, both California residents, and Chen, a Washington state resident, and that pursuant to this agreement, goods were shipped to Vancouver, Canada. Accordingly, the complaint sufficiently alleges that the underlying transaction fell within the scope of the commerce clause.
The leading case on the soundness of tolling statutes under the commerce clause is Bendix Autolite Corp. v. Midwesco Enterprises, supra, 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896. In Bendix, Bendix Autolite Corporation, a corporation residing in Ohio, entered into an agreement with Midwesco Enterprises, Inc., a corporation residing in Illinois. (Id. at pp. 889-890, 108 S.Ct. 2218.) When Bendix sued Midwesco for breach of contract and Midwesco asserted a statute of limitations defense, Bendix contended that the statutory period had been *387 tolled. Like section 351, the pertinent Ohio tolling statute provided that the statutory period did not run while a defendant was outside of the state.[2]
In assessing whether this tolling statute violated the commerce clause, the court in Bendix stated that, as a general rule, "[w]here the burden of a state regulation falls on interstate commerce, restricting its flow in a manner not applicable to local business and trade, there may be either a discrimination that renders the regulation invalid without more, or cause to weigh and assess the State's putative interests against the interstate restraints to determine if the burden imposed is an unreasonable one. [Citation.]" (486 U.S. at p. 891, 108 S.Ct. 2218.) Applying the latter balancing test, the Bendix court held that Ohio's tolling statute was constitutionally infirm under the circumstances of the case, noting that "[although statute of limitations defenses are not a fundamental right, [citation], it is obvious that they are an integral part of the legal system and are relied upon to project the liabilities of persons and corporations active in the commercial sphere." (Id. at p. 893, 108 S.Ct. 2218.) The Bendix court reasoned that the statute burdened interstate commerce by barring foreign corporations from asserting a statute of limitations defense unless they maintained a presence in Ohio, but served no weighty state interest because Ohio's long-arm statute permitted service on foreign corporations like Midwesco throughout the period of limitations. (Id. at pp. 893-895,108 S.Ct. 2218.)
In Abramson v. Brownstein (9th Cir.1990) 897 F.2d 389, the Ninth Circuit decided a similar question concerning section 351. In Abramson, the plaintiffs, two California residents, entered into an agreement for the sale of gold coins and bullion with the defendant, a resident of Massachusetts. (Id. at p. 390.) The plaintiffs subsequently sued the defendant, alleging breach of contract and fraud. (Ibid.) When the defendant asserted a statute of limitations defense, the plaintiffs argued that the statutory periods were tolled under section 351. (Id. at p. 391.) Following Bendix, the Ninth Circuit held that section 351 impermissibly burdened interstate commerce in the case of nonresident defendants engaged in commerce within California, reasoning that although such defendants were subject to service under California's long-arm statute, section 351 denied them a statute of limitations defense unless they maintained a presence in California.
Unlike the courts in Bendix and Abramson, we confront whether section 351 is constitutionally sound when its tolling provisions are applied to a resident engaged in interstate commerce. Under Bendix, we first assess the burden that section 351 imposes on interstate commerce in these circumstances, and then determine whether this burden is counterbalanced by state interests supporting section 351. (Bendix Autolite Corp. v. Midwesco Enterprises, supra, 486 U.S. at p. 891,108 S.Ct. 2218.) With respect to the burden imposed by section 351, we examine the extent to which section 351 restricts the flow of interstate commerce "in a manner not applicable to local business and trade" (486 U.S. at p. 891, 108 S.Ct. 2218), and thus compare the impact of section 351 on residents engaged in interstate commerce with residents not so engaged.
In our view, section 351 imposes a special burden on residents who travel in the course of interstate commerce that is not shared by residents involved solely in "local business and trade...." (Bendix Autolite Corp. v. Midwesco Enterprises, supra, 486 U.S. at p. 891, 108 S.Ct. 2218.) "[I]nterstate commerce is affected when persons move between states in the course of or in search for employment. [Citations.]" (Tesar v. Hallas (N.D.Ohio 1990) 738 F.Supp. 240, 242.) Residents engaged in interstate commerce often travel outside the state to facilitate *388 this activity, unlike residents who are otherwise occupied or employed. Thus, section 351 poses a hard choice to residents who engage in interstate commerce and who face potential liability arising out of this economic activity that section 351 does not pose to other residents. Residents occupied in interstate commerce must curtail their travel outside the state in the course of interstate commerce to avoid the tolling provisions of section 351, or endure extended exposure to litigation because of their travel in the course of interstate commerce. In this respect, section 351 places a special burden on residents involved in interstate commerce that it does not impose on other residents.
Furthermore, no state interest outweighs this burden. Residents are equally subject to service, regardless of their reasons for traveling out of state. In the present case, there is no allegation that Cheng's out-of-state travel made him difficult to serve with the complaint in this action. In the absence of a countervailing state interest, we conclude, under Bendix and Abramson, that section 351 impermissibly burdens interstate commerce with respect to residents who travel in the course of interstate commerce.
This conclusion is limited to travel for the facilitation of interstate commerce. Residents travel outside California for many reasons unrelated to the service of interstate commerce. Because the implications of section 351 for such travel apply equally to residents engaged in interstate commerce and to residents not so occupied, tolling statutory periods for the duration of out-of-state travel unrelated to interstate commerce does not violate the commerce clause. (Pratali v. Gates (1992) 4 Cal.App.4th 632, 635, 643, 5 Cal.Rptr.2d 733 [single amicable noncommercial loan between California residents arranged in Las Vegas and payable in San Francisco does not implicate interstate commerce, and thus applying section 351 in lawsuit arising out of loan does not violate commerce clause].)
Our conclusion finds support in Tesar v. Hallas, supra, 738 F.Supp. 240, and Lovejoy v. Macek (Ohio App.1997) 122 Ohio App.3d 558, 702 N.E.2d 457. In Tesar, the federal district court concluded that the Ohio tolling statute at issue in Bendix violated the commerce clause in an action involving a defendant who had moved from Ohio to Pennsylvania, where he had found a new job. (Tesar v. Hallas, supra, 738 F.Supp. at pp. 241-243.) The court in Tesar reasoned that in the circumstances of that case, the tolling statute unreasonably burdened the flow of persons "between states in the course of or in search for employment. [Citations.]" (Id. at p. 242.) Although the case before us does not involve a change in the state of residence, Tesar corroborates our conclusion that section 351 unreasonably impedes the movement of persons acting in the course of interstate commerce.
In Lovejoy, the Ohio appellate court again addressed the Ohio tolling statute, this time in a case involving a defendant who had maintained permanent residence in Ohio, but who had left the state for vacation trips and had attended college in New York state, where he was also employed as a night guard. (122 Ohio App.3d at p. 560, 702 N.E.2d at p. 458.) The court in Lovejoy held that under Bendix and its progeny, toiling the statutory period during the vacation trips did not violate the commerce clause because these trips did not rise to "acts engaging in interstate commerce...."[3] (122 Ohio App.3d at p. 565, 702 N.E.2d at p. 462.) Lovejoy thus supports our conclusion that the commerce clause does not bar applying the tolling provisions of section 351 to interstate travel unrelated to the facilitation of interstate commerce.
Here, the complaint alleges that Cheng was absent from California for periods sufficient to toll the running of the applicable statutory period, but does not allege the specific reasons for Cheng's out-of-state travel. , Because the allegations do not describe the extent to which Cheng's absences *389 from the state were in the course of interstate commerce, they do not establish that applying section 351 in the circumstances of this case violates the commerce clause.
In sum, the demurrer was improperly sustained.
DISPOSITION
The judgment is reversed. Appellant is awarded its costs on appeal.
EPSTEIN, Acting P.J., and HASTINGS, J., concur.
NOTES
[1] The first amended complaint incorporates by reference this contract and several purchase orders signed by Cheng for items from Filet Menu. Because these documents are the foundation of the first amended complaint, we view the statements in these documents as allegations essential to the claims for relief. (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 390, p. 488.)
[2] The tolling statute provided in pertinent part: "When a cause of action accrues against a person, if he is out of the state, has absconded, or conceals himself, the period of limitation for the commencement of the action ... does not begin to run until he comes into the state or while he is so absconded or concealed. After the cause of action accrues if he departs from the state, absconds, or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought." (Ohio Rev.Code Ann., § 2305.15.)
[3] In view of this conclusion, the court in Lovejoy held that the plaintiff's action was not timebarred, and it therefore did not address whether applying the tolling provision to the defendant's college attendance violated the commerce clause. (122 Ohio App.3d at p. 565, 702 N.E.2d at p. 462.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262567/ | 900 F.Supp. 959 (1995)
Catherine WAGNER, Plaintiff,
v.
The NUTRASWEET COMPANY, Defendant.
No. 92 C 2418.
United States District Court, N.D. Illinois, Eastern Division.
August 29, 1995.
*960 *961 Thomas R. Meites, Joan Harlow Burger, Paul William Mollica, Meites, Frackman, Mulder & Burger, Chicago, IL, Laurie Arden Wardell, Aram A. Hartunian & Associates, Chicago, IL, for plaintiff.
Thomas G. Abram, Richard C. Robin, Edward C. Jepson, Jr., Carlys Elizabeth Belmont, Karen Taylor Donmoyer, Vedder, Price, Kaufman & Kammholz, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
CASTILLO, District Judge.
On March 25, 1991, the plaintiff, Catherine Wagner ("Wagner"), signed a Separation Agreement and a Release of all liability against her employer, the NutraSweet Company ("NutraSweet" or "Company"), the defendant in this case. Wagner subsequently discovered certain facts giving rise to the present lawsuit. On the eve of trial, the parties are before the Court with a second set of summary judgment motions directed to the allegations pled in the Second Amended Complaint. The current issues are:
1. Whether Wagner was terminated on the basis of her sex, in violation of Title VII, 42 U.S.C. § 2000e et seq., when Wayne Tompkins, Wagner's male subordinate, assumed a position as Director, Human Resources, of the R & D Group, in late July 1991 approximately three months after Wagner signed a Separation Agreement (which contained a general release of all claims arising on or before March 25, 1991).
2. Whether Wagner was terminated on the basis of her sex in violation of Title VII, 42 U.S.C. § 2000e et seq., when NutraSweet's Vice President, Joe Clark, refused to consider her for a director position in the Carbonated Soft Drink/Table Top ("CSD") Group, which was ultimately filled by a male, Mike Vinitsky.
3. Whether Wagner was discriminated against with respect to her compensation during her retention period which ran from March 30, 1991 through October 5, 1991, in violation of the Equal *962 Pay Act, 29 U.S.C. § 206(d), and Title VII, 42 U.S.C. § 2000e et seq.
I. Procedural History
In a Memorandum Opinion and Order dated October 17, 1994, this Court issued several rulings that are relevant to the issues presently before us. See Wagner v. Nutrasweet Co., 873 F.Supp. 87, reconsideration denied, 873 F.Supp. 101 (N.D.Ill.1994). With respect to Wagner's compensation claims, the Court previously held that the general release ("Release") signed by Wagner on March 25, 1991, barred any claims arising on or before that date,[1] but did not preclude claims arising during the period of Wagner's retention. Id. at 91 n. 4, 102. With respect to the "termination" claims, the Court found that any claims regarding the hiring of Mike Vinitsky in April 1991 as the Director, Human Resources, of the CSD Group ["Vinitsky claim"] and the alleged promotion of Wayne Tompkins in July 1991 as the Director, Human Resources, of the R & D Group ["Tompkins claim"] would be cognizable under the "prospective waiver rule," if these claims arose after March 25, 1991, the date Wagner signed the Release.
The Court then denied NutraSweet's Motion for Summary Judgment as to Wagner on any compensation and termination claims arising after March 25, 1991, and directed Wagner to file a Second Amended Complaint to set forth the remaining claims with more specificity. The parties are now before the Court seeking summary judgment on the three claims alleged in the Second Amended Complaint. For the reasons given below, summary judgment will be granted on the compensation (Count II) and the two termination claims (Count III subparagraph a and b). The Court also grants NutraSweet's request to strike Count I, the class claims, given the Court's previous summary judgment rulings.
II. Summary Judgment Standards
Summary judgment is proper only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for trial exists only when "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, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Materiality[2] is determined by assessing whether the fact in dispute, if proven, would satisfy a legal element under the theory alleged or otherwise affect the outcome of the case. Id. at 247, 106 S.Ct. at 2509. The Court must view all the evidence in the light most favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987), and draw all inferences in the nonmovant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir.1990). If the evidence, however, is merely colorable, or is not significantly probative or merely raises "some metaphysical doubt as to the material facts," summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2510-11; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986); Flip Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 261, 102 L.Ed.2d 249 (1988). In making its determination, the court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant's favor. Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513. In an employment discrimination suit, where credibility and intent *963 are crucial issues, these standards are applied with added rigor. Courtney v. Biosound, 42 F.3d 414, 418 (7th Cir.1994) (quoting Sarsha v. Sears Roebuck, 3 F.3d 1035, 1038 (7th Cir.1994)).
III. The Facts
The following material and undisputed facts have been taken from the Statements of Material and Undisputed Facts filed pursuant to the Northern District of Illinois' Local Rules 12(M) and 12(N). The relevant period of this lawsuit runs from March 25, 1991 (the date Wagner signed the Release) through October 5, 1991 (the date Wagner's employment with NutraSweet ended). Only those facts pertinent to Wagner's individual claims are relevant.
A. Introduction
NutraSweet, a subsidiary of Monsanto Company, manufactures and distributes an intense sweetener, a fat substitute and certain related products. 12(M) ¶ 1. In late December 1990, NutraSweet determined that because certain of its patents were to expire in December 1992, a significant reconfiguration of the Company was warranted. 12(M) ¶ 64. This reconfiguration necessitated the elimination of a substantial number of jobs. Id. Employee terminations resulting from this reconfiguration were announced on March 25, 1991. Id.
The reconfiguration affected both the structure and the size of the Company's work force. For instance, the reconfigured Company was comprised of only four (rather than five) business units: (1) The Carbonated Soft Drink and Tabletop ("CSD") Group, which is responsible for the sale and marketing of NutraSweet sweetener products for use in the beverage and tabletop categories; (2) The Food Ingredient Group, which is responsible for the sale and marketing of NutraSweet and Simplesse ingredients to food companies; (3) Research and Development; and (4) Corporate Staff. 12(M) ¶ 65. The Research & Development Group was housed at the Mount Prospect, Illinois facility. 12(M) ¶ 5. The Corporate Staff was housed in Deerfield, Illinois. 12(M) ¶ 3.
B. The 1991 Reconfiguration
In early 1991, NutraSweet's company-wide reduction in force began to take effect. For instance, the number of employees in the Research & Development Group diminished from 220 to 125. 12(M) ¶ 66. In March 1991, Dr. Mike Losee, the supervisor of the R & D Group, advised Catherine Wagner, then the Director of Human Resources for the R & D Group, that R & D did not need both a director and a manager position. Id. Losee then directed Wagner to determine which position should be eliminated. Id. Wagner subsequently recommended to Losee that the director position be eliminated on the grounds that it would not be a sound business practice to retain a director given the reduced number of employees in R & D. 12(M) ¶ 92. Wagner further recommended that the human resources function be performed by a senior manager. Id. Wagner also recommended to Losee that Wayne Tompkins fill the senior role in the R & D Group. 12(N) ¶¶ 66-67.[3] After consultation with Vice President, Joe Clark, Losee accepted Wagner's recommendation to eliminate the director position. 12(M) ¶ 68. Losee then offered the senior human resources manager position to Wagner, who declined the offer. Id.; 12(M) 94. Wagner rejected the manager position because she did not want to take a step back in her career. 12(M) ¶¶ 66, 94.[4]
*964 C. The March 25, 1991, Separation Letter
On March 25, 1991, the plaintiff, Catherine Wagner, signed a Separation Agreement which contained a general release of all claims against the Company prior to the date it was signed in consideration for receipt of the payments outlined. 12(M) ¶ 70. The letter states:
In consideration of the payments set out in this letter, you, for yourself, your executors, personal representatives, successors and assigns hereby release and absolve the Company, its subsidiaries, affiliates, divisions, employees, officers, directors, successors and assigns from any and all claims, charges, demands, or causes of action, known or unknown, asserted or unasserted, in any way arising from your employment, separation of employment or failure to be recalled or rehired by the company, including but not limited to, all claims which would have been raised pursuant to any common law cause of action or pursuant to any federal, state, or local statute, order, law or regulation. In making this Agreement, you and the Company agree that you were an "employee-at-will" of the Company and not employed pursuant to either a written or oral employment contract.
Id. At the time she signed the Agreement, Wagner understood that the Release was intended to prevent her from suing the company for any claims, known or unknown, which arose during her tenure. 12(M) ¶ 71.
D. The Retention Agreement
Wagner also signed a Retention Agreement. 12(M) ¶ 72. Under the terms of the Retention Agreement, Wagner agreed to remain at NutraSweet through October 1, 1991, to complete various projects with a salary equal to one and one-half times her base salary. Id. Wagner also received all payments outlined in the Separation Agreement, including $46,307.69 in severance pay, two months' redeployment pay commencing August 5, 1991, and outplacement services in March or April 1991. 12(M) ¶ 73. In addition to her salary, Wagner further received retention pay equal to one half the amount of Wagner's separation pay, or $23,153.00, Wagner, 873 F.Supp. at 93, as a bonus for remaining with the Company during the retention period. 12(M) ¶ 73. The Court previously found that the Retention Agreement was offered as consideration for Wagner's release. Wagner, 873 F.Supp. at 98.
E. The August 1, 1991, Separation Letter
On August 1, 1991, NutraSweet asked Wagner to sign another Separation Agreement that contained a general release for claims arising during her retention period (i.e., from March 30, 1991, through August 5, 1991). Wagner, 873 F.Supp. at 93; 12(M) ¶ 74. Wagner refused to sign this Agreement. 12(M) ¶ 77. The August 1, 1991, Separation Agreement indicated that, although Wagner's job responsibilities in R & D were to cease on August 5, 1991, NutraSweet considered Wagner an employee through October 5, 1991, with severance benefits beginning October 6, 1991. See Wagner, 873 F.Supp. at 93 n. 7. In all other respects the Separation Agreement presented to Wagner in August 1991 was the same as the Separation Agreement signed by Wagner in March of the same year. 12(M) ¶ 76. Wagner testified that she refused to sign this Agreement because she believed that NutraSweet had discriminated against her during the retention period. Wagner, 873 F.Supp. at 93; 12(M) ¶ 77. Wagner also testified that her belief was based on a conversation she had with Mike Greene, a recruiter, who heard that Tompkins has been promoted to a director position. 12(N) ¶ 78.
F. Wayne Tompkins
In April 1991, at the time Tompkins was selected to be the senior human resources manager at R & D, he was not offered a director level position nor was he promised a director position by Losee. 12(M) ¶ 98. Sometime during the next year, however, NutraSweet merged the Simplesse Research and Development function into the R & D Group and promoted Tompkins to a Director, *965 Human Resources position. 12(M) ¶ 103. In his capacity as Director, Human Resources, Tompkins earned less money than Wagner earned while she held the position, Wagner, 873 F.Supp. at 93, even though Tompkins advised Losee that he thought he was underpaid and ultimately received a salary adjustment. 12(M) ¶ 101. In March 1992, the time when NutraSweet admits that Tompkins was promoted to the Director, Human Resources position, 12(M) ¶ 103,[5] Tompkins also received a pay increase. 12(M) ¶¶ 93, 105.
G. The CSD Director Position
In 1991, as part of the reconfiguration, Rick Darnaby (a Monsanto Company executive who formerly worked in Canada) assumed responsibility for the CSD Group. 12(M) ¶ 79. NutraSweet's chief executive officer, Bob Shapiro, created the Director, Organization Effectiveness[6] position in anticipation of NutraSweet's patent expiring in December 1992 due to the Company's need to examine and redesign its organizational structure and programs to help the company remain successful. 12(M) ¶ 54. Joe Clark, a NutraSweet Vice President, was responsible for supplying Darnaby with candidates for this director position. 12(M) ¶ 79; 12(N) ¶ 122. Openings for director positions at NutraSweet were not ordinarily posted. 12(N) ¶ 121. Employees seeking such interviews normally had to obtain a recommendation for a responsible executive. Id. The Director, Organization Effectiveness position in the CSD Group was not posted.[7]Id. Darnaby only interviewed those candidates who were recommended by Clark. 12(N) ¶ 122. Clark stressed in those recommendations that Vinitsky had the best organizational development skills, which Darnaby considered to be 80-90% of the job. Id. Darnaby ultimately selected Mike Vinitsky to fill the Director, Organizational Effectiveness position in the CSD Group, because he served as the Director, Organizational Effectiveness for the entire company until May or June of 1991. In his former position, Vinitsky was only responsible for both organizational effectiveness functions. 12(N) ¶ 130 Reply. In the CSD director position, Vinitsky was responsible primarily for organizational effectiveness, but also for some human resources functions. 12(N) ¶ 55. Vinitsky had no human resources experience at the time he was selected. 12(N) ¶¶ 48, 131.
H. Clark's Rejection of Wagner's Candidacy for CSD Director
Wagner learned, in either March or April 1991,[8] that another director level position was going to open up in the CSD Group at NutraSweet. Wagner expressed her interest in the position to Clark. 12(N) ¶ 120 Reply. Dr. Mike Losee, Wagner's supervisor, also recommended Wagner for the position, stressing that Darnaby should be allowed to interview Wagner. 12(M) ¶ 82; 12(N) ¶ 124. Clark, however, refused to submit Wagner's name as a candidate for the position. 12(M) ¶ 83. During Clark's discussions with Wagner about why he would not recommend her to Darnaby for the open director position, Clark said that he did not trust Wagner's "judgment." 12(N) ¶¶ 82, 125 Reply. Clark does not recall whether he told Wagner that he questioned the closeness of Wagner's relationship with Losee. 12(N) ¶ 125 Reply. NutraSweet affirmatively asserts that Clark's reasons for not recommending Wagner to Darnaby were based on his belief that *966 Wagner lacked organizational effectiveness skills and "aligned commitment" (teamwork). 12(N) ¶ 125 Reply. NutraSweet admits, however, that at the time Clark discussed the new position with Plaintiff, he did not ask her about her organizational effectiveness experience pursue her personnel file, or solicit people other than her direct supervisor, Losee, to provide their impressions of her work. 12(N) ¶ 127 Reply. According to NutraSweet, Clark communicated his concerns about Wagner's lack of organizational effectiveness skills to her direct supervisor, Losee. 12(M) ¶ 90; 12(N) ¶ 128 Reply.
I. Candidates for CSD Director Position
Clark recommended the following candidates for the CSD Group director position to Darnaby: Zada Clarke, Peggy Jude and Mike Vinitsky. With respect to these three candidates, Clark ranked Vinitsky first in terms of organizational effectiveness skills, followed by Clarke and Jude. 12(M) ¶ 88. Jude, however, was ranked first in terms of human resources generalist skills followed by Clarke and Vinitsky. Id. Clark admitted that Wagner, who was not considered for the job, had more human resources experience and was more skilled in that area than Zada Clarke. Id.
After interviewing the three candidates recommended by Clark, Darnaby chose Vinitsky for the position, 12(M) ¶ 91, even though Vinitsky had no prior human resources generalist experience and was not originally hired by NutraSweet as a generalist, 12(N) ¶ 131, but rather was hired to use his prior experience with organization effectiveness to examine and redesign the entire Company's organizational structure and programs. 12(M) ¶ 54.
IV. Analysis
There are three remaining claims in this case: a compensation claim and two termination claims. Each claim will be addressed separately.
A. The Compensation Claim
The compensation claim, brought under the Equal Pay Act, 29 U.S.C. § 206(d) (1995), and Title VII, 42 U.S.C. 2000e et seq. (1995), is based on Wagner's allegation that her retention pay, calculated by her previous base salary, was less than the salary received by her two male counterparts: John Russert[9] and Mike Vinitsky. Although the briefs discuss the relative merits of this claim under the applicable statutes, the Court does not reach the merits of this claim because Wagner has failed to meet her burden of showing that her compensation claim arose after March 25, 1991, the date she signed the Release.
Although it is undisputed that Wagner received retention pay during the retention period after she signed the March 25, 1991, Release, this retention pay was calculated by the base salary Wagner received before March 25, 1991. When Wagner released NutraSweet from liability for any discrimination regarding the amount of her base salary on March 25, 1991, she also effectively released NutraSweet from liability for any discrimination regarding her retention pay. Moreover, Wagner signed the Release knowing that her new retention pay would be based on her previous salary as a director. This Court previously found that the Retention Agreement, including the amount of pay Wagner received during the retention period, was part of the consideration Wagner received for signing the Release. Wagner, 873 F.Supp. at 98. Under the "tender rule" discussed in the Court's previous opinion, Wagner is barred from raising these claims since they arose before she signed the March 25, 1991, Release. Wagner was given a second chance to plead additional compensation claims arising after March 25, 1991, and has failed to do so. The Court therefore grants summary judgment in favor of NutraSweet and against Wagner on the compensation claim alleged in Count II because the basis of Wagner's compensation claim depends upon calculations made and agreed to by Wagner before the Release was signed.
*967 B. The Sex Discrimination Claims
In Count III, Wagner claims that she is entitled to relief for gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (1995), for two reasons:
1. Following Wagner's termination, Vice President Joe Clark denied her an equal opportunity for a comparable position, ultimately filled by a male, Mike Vinitsky.
2. Although Wagner's position was ostensibly eliminated as part of a reduction in force, her position continued and was filled by her male subordinate, Wayne Tompkins.
See Brief In Opposition at 1. In other words, Wagner claims that she was discharged, despite the company-wide reduction-in-force, because of her gender, in violation of Title VII.
1. The Vinitsky Claim
In Count III, Wagner's first termination claim is based on a single proposition: Mike Vinitsky, a qualified male, was given the opportunity to compete for an open director position in the CSD Group and ultimately was chosen for it, but Wagner, a qualified female, was not given the opportunity to compete for the position. Wagner's ultimate burden with respect to this claim is to establish that NutraSweet's refusal to consider her for the open director position was based on impermissible gender considerations.
The allegedly discriminatory conduct, according to Wagner, occurred when Joe Clark refused to submit her name as a candidate for the position to Rick Darnaby, along with the names of the other recommended candidates. Thus, Wagner is not alleging that Darnaby's selection of Vinitsky for the position violated Title VII; Wagner is alleging that Clark's refusal to submit her name as a candidate for the position was gender based and therefore discriminatory. Joe Clark, therefore, is the relevant decisionmaker for purposes of this claim, and the candidate selection process is the relevant conduct.[10] We will begin the analysis with a review of the relevant legal standards.
a. Title VII Standards
Title VII prohibits discrimination "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex ..." 42 U.S.C. § 2000e-2. To prove discrimination in Title VII actions, an employee may use either "direct evidence," which means evidence that proves discrimination "without the need for inference or presumption," or circumstantial evidence, which requires inference and presumption. See Troupe v. May Dept. Stores Co., 20 F.3d 734, 736-37 (7th Cir.1994); Loyd v. Phillips Bros. Inc., 25 F.3d 518, 522 (7th Cir.1994). See also Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir.1989) (noting that the direct and circumstantial methods constitute two distinct evidentiary paths for proving the ultimate issue of discriminatory intent). In a case where the plaintiff offers direct evidence of discrimination, the court will generally analyze the challenged conduct under a "mixed motives" analysis. Randle, 876 F.2d at 569. In the more typical case, where the plaintiff offers circumstantial evidence of discrimination, the court analyzes the challenged conduct under the "pretext" or burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The pretext or "indirect" burden-shifting method of proving discrimination, however, is merely a subtype of the circumstantial approach to proving discrimination. See Troupe, 20 F.3d at 736 (listing three types of circumstantial evidence, one of which is the "pretext" or "burden-shifting" framework that courts refer to as the "indirect method" of proof). Wagner seeks to prove discrimination in this case *968 through both the mixed-motives and pretext analysis. We will address the mixed-motives case first.
b. The Mixed-Motives Case
In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), a plurality of the Supreme Court held that the words "because of" contained in section 703(a)(1) of Title VII did not require proof that the discriminatory conduct occurred "solely because of" an individual's race, color, religion, sex, or national origin. Id. at 241, 109 S.Ct. at 1785. Rather, the Court concluded that "Title VII [was] meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations." Id. The Seventh Circuit has framed the inquiry in a mixed-motives case as follows:
where a plaintiff is able to prove through direct evidence that the employment decision at issue was based upon an impermissible factor, he or she has carried the initial burden of proof. At that point, the analysis and burdens associated with the "pretext" inquiry outlined in McDonnell Douglas and affirmed in Burdine are irrelevant because plaintiff has directly proved that impermissible factors have come into play.... "it simply makes no sense to ask whether the legitimate reason was `the true reason' for the decision which is the question asked by Burdine." To avoid liability, the defendant must respond by proving by a preponderance of the evidence that it would have made the same employment decision even if it had not taken the impermissible factor into account.
Randle, 876 F.2d at 568 (7th Cir.1989).
Wagner believes she has direct evidence that NutraSweet, through its agent Joe Clark, refused to consider her for the CSD director position because she was a woman. For example, Wagner asserts that Clark told Losee that Bob Flynn, NutraSweet's CEO, told Clark that there were "too many attractive women in human resources." 12(N) ¶ 129. Whether and when this comment was made is disputed.[11] 12(N) ¶ 129 Reply. Moreover, when Wagner told Clark why he could not accept Losee's endorsement of her, Clark allegedly retorted that he "questioned the closeness" of Losee's relationship to Wagner. 12(N) ¶ 125. Clark cannot remember whether he made this statement. 12(N) ¶ 125 Reply. Wagner suggests that this comment implies that "Wagner was having an intimate relationship with Losee," Brief In Opposition at 3, and "demonstrates Clark's bent to subordinate and disadvantage female executives." Id.
A plaintiff's prima facie case and ultimate burden of proof merge into a threshold question in a mixed-motives case because, unlike the pretext analysis, the burden of proof shifts to the defendant employer only if the plaintiff produces direct evidence that the employment decision was based on an impermissible factor. See Monaco v. Fuddruckers, Inc., 1 F.3d 658, 660 (7th Cir. 1993); McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686-87 (7th Cir.1991); Randle, 876 F.2d at 568. There are many types of direct evidence that will establish a prima facie case. "Stray remarks," courts have held, may, but "do not inevitably," provide direct evidence of a discriminatory employment decision. Hopkins, 490 U.S. at 250, 109 S.Ct. at 1791. A plaintiff attempting to satisfy her burden of proof with stray remarks, however, must demonstrate that the discriminatory remarks were made by the decision-maker, LaMontagne v. American Convenience Prods., 750 F.2d 1405, 1412 (7th Cir. 1984); were related to the employment decision in question, McCarthy, 924 F.2d at 686; and were made contemporaneously with that decision. Smith v. Firestone, 875 F.2d 1325, 1330 (7th Cir.1989). See generally Alzona v. Mid-States Corp. Fed. Credit Union, No. 92 *969 C 8244, 1995 WL 134767, *6 (N.D.Ill. March 28, 1995).
The stray remarks alleged by Wagner do not satisfy these standards and therefore do not "justify requiring the employer to prove that its ... decisions were based on legitimate criteria." Hopkins, 490 U.S. at 277, 109 S.Ct. at 1804. First, even if Bob Flynn made the "attractive women" remark, Flynn was not the decisionmaker. Moreover, even though there is some dispute about whether Joe Clark, the decisionmaker, relied on the remark as a basis for his decision, the remark is not material because the plaintiff cannot show that the remark was made contemporaneously with the employment decision at issue.[12] Second, Clark's alleged statement that he questioned the "closeness" of Wagner's relationship to Losee, although not affirmatively disputed, does not raise a reasonable inference of gender discrimination. Wagner wants the Court to believe that the closeness comment implied that Clark refused to consider Wagner because Clark believed Wagner had an intimate relationship with Losee; Wagner then apparently wants the Court to infer that Clark's belief is evidence of stereotypical gender discrimination. This proposed chain of inferences leads the Court down the classic "slippery slope" and therefore will not be accepted. Gender discrimination, although often manifested by stereotypical attitudes, must be proven by evidence which clearly treats one gender differently than the other based on the characteristic of sex, rather than on other bases, such as mere dislike, differences of opinion, or other undefinable attributes. The "closeness" remark, especially when considered in the context of Clark's remark about Wagner's lack of "judgment," falls into a category of stray remarks that do not appear to be based merely on gender related and therefore prohibited considerations.
Wagner has failed to satisfy her threshold burden by offering direct proof of gender discrimination for instance, a remark by Clark (the decisionmaker) to Losee or Wagner (explaining the refusal to consider) made contemporaneously with the challenged refusal that would raise the inference of gender discrimination. The remarks Wagner offers, however, do not satisfy these standards and therefore cannot sustain Wagner's case under a mixed-motive analysis. Given that these two remarks are Wagner's only direct evidence of discrimination, this Court finds that she has failed to establish a prima facie case of gender discrimination under the mixed-motives method.
c. The Pretext Case
The pretext or indirect burden-shifting method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), assigns the burden of proof to the plaintiff and requires the plaintiff to bear the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. Id. In a case where the plaintiff alleges that the employer refused to hire or promote her, the plaintiff must show: (1) application by plaintiff to fill a vacancy; (2) qualification; (3) rejection; (4) continued efforts by employer to seek applications with plaintiff's qualifications. Cherry v. American Tel. & Tel. Co., 47 F.3d 225, 228 (7th Cir.1995). Although the prima facie case is not "inflexible" and is often modified to accommodate varied fact patterns, Texas Dept. of Community Affairs *970 v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct. 1089, 1093 n. 6, 67 L.Ed.2d 207 (1981), the evidence offered to make out the prima facie case must raise an inference of discrimination. Cherry, 47 F.3d at 228. To raise this inference, the plaintiff "must show that as a female she was treated differently than a similarly situated male." Id. (citing Chambers v. American Trans Air Inc., 17 F.3d 998, 1003-04 (7th Cir.1994)).
Once the prima facie case is successfully established, this inference of discrimination must be rebutted by the defendant employer. Id. A burden of production thus shifts to the defendant employer to articulate a facially legitimate, non-discriminatory reason for its action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the defendant satisfies this burden, then the presumption of discrimination created by the prima facie case is dissolved, and the ultimate burden of proof falls on the plaintiff "to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." St. Mary's Honor Center v. Hicks, ___ U.S. ____, ____, 113 S.Ct. 2742, 2751, 125 L.Ed.2d 407 (1993) (citing Burdine, 450 U.S. at 253, 101 S.Ct. at 1093). To establish pretext, the plaintiff must show that the asserted reason was both false and that discrimination was the real reason. Id.
Wagner's gender discrimination claim against NutraSweet regarding the selection of Mike Vinitsky for the CSD director position must fail because the evidence Wagner offers to satisfy her prima facie case does not raise an inference of gender discrimination. A presumption of gender discrimination exists only if Wagner can show that because she is a woman Clark treated her differently than Mike Vinitsky when he selected candidates. The facts of this case simply do not warrant such a presumption. First, Joe Clark submitted the name of Mike Vinitsky and the names of two other qualified female applicants for the CSD position. He therefore did not select candidates based solely on gender and therefore did not discriminate on the basis of sex. At most, the evidence shows that Clark refused to select Wagner as a candidate for a reason other than her qualifications.[13] This "other" reason, however, has not been linked to gender bias, since other females were selected who were qualified applicants rather than mere decoys.[14] Rather, the record supports the inference that Wagner was not selected as a candidate because Clark questioned her judgment and her relationship with Losee. These grounds are, although not necessarily justified, certainly not actionable under Title VII. See, e.g., Pollard v. Rea Magnet Wire Co., Inc., 824 F.2d 557 (7th Cir.1987), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987). The portion of Count III (subparagraph a) charging NutraSweet with violating Title VII for failing to consider Wagner for the CSD director position is therefore denied.
2. The Tompkins Claim
In Count III, Wagner's second termination claim is that she was terminated because of her gender, in violation of Title VII, when NutraSweet filled her former position of Director, Human Resources for the R & D Group with her male subordinate, Wayne Tompkins, in July 1991. Wagner seeks to prove the Tompkins claim, like the Vinitsky claim, by using the mixed-motives and pretext methods.
a. The Mixed-Motives Case
Wagner asserts that NutraSweet discriminated against her on the basis of *971 gender because Losee did not tell her that another director position would be available in the near future when she recommended the elimination of her director position to Losee and refused Losee's offer of the senior manager role. Brief In Opposition at 7-8. Although Losee denies knowing that another director position would become available, 12(M) ¶ 98, Wagner now contends that Losee concealed this information because Losee harbored sex based stereotypes about Wagner. For instance, Wagner contends that Losee "held up a promotion for Wagner due to her pregnancy in 1986, saying that she could not expect to work and take care of small children." Brief In Opposition at 8 (citing 12(N) ¶ 115). Wagner also claims that in 1988 her MIP bonus was reduced "because she was absent from the office for maternity leave (even though she continued to work at home during that time)." Id. According to Wagner, Losee said she was "lucky to get what she got." Id. (citing 12(N) ¶ 194). Finally, in 1989, Losee allegedly commented to Wagner that "he did not worry about her needing a raise because between her and her husband, they were making enough." Id. Losee denies making these statements. This evidence, however, does not raise a genuine issue of material fact because the timing of these comments, even if made, was not contemporaneous with either the elimination of Wagner's director position or the alleged creation of the director position for Tompkins once Tompkins filled the senior manager role in the R & D Group. Wagner therefore does not have mixed-motive case.
b. The Pretext Case
In a reduction-in-force case, a plaintiff establishes her prima facie case by showing that: (1) she was a member of a protected class; (2) she was satisfactorily performing the duties of her position; (3) she was discharged; and (4) her employer sought a male replacement for her. See Samuelson v. Durkee/French/Airwick, 976 F.2d 1111, 1113 (7th Cir.1992); Williams v. Williams Elec. Inc., 856 F.2d 920, 922 (7th Cir.1988); LaMontagne, 750 F.2d at 1408. Although Wagner satisfies the first three elements of her case, the fourth element cannot be met on the record before the Court.
At the time Wagner was terminated, her director position was eliminated; it was not filled by Wayne Tompkins. Instead, Tompkins, already a manager in the R & D Group, was promoted to the position of senior manager, a position which incorporated some but not all of Wagner's former duties as Director, Human Resources. For example, Wagner's position as director included responsibility for safety, health, environmental affairs and facilities administration. 12(M) ¶ 16. When Tompkins assumed the senior manager position in April 1991, Wagner's responsibilities for environmental safety, health and industrial hygiene were not assigned to him, 12(M) ¶ 97, although Wagner contends that Tompkins was offered these responsibilities in the fall of 1991. 12(N) ¶ 97. Rather, at the time Wagner agreed to separate from NutraSweet, Tompkins' duties merely included recruiting, human resources duties, training and development. 12(M) ¶ 100. To establish the fourth element of her prima facie case, Wagner would need to develop a record showing that Tompkins, her purported replacement, actually performed her former duties when she held the position of director. See Hawkins v. Ceco Corp., 883 F.2d 977, 982 (11th Cir.1989), cert. denied, 495 U.S. 935, 110 S.Ct. 2180, 109 L.Ed.2d 508 (1990). Wagner has not developed such a record. Further, although Tompkins was the senior person in the R & D Group after Wagner's director position was eliminated, Tompkins was not paid the same salary Wagner had been paid as director, nor was he given that title. Wagner, 873 F.Supp. at 93. Given these undisputed facts, the Court finds that Wagner's discharge cannot be connected to any efforts by NutraSweet to "replace" her with Tompkins, in violation of Title VII.
Similarly, Wagner's conspiracy theory, although appealing on its face, lacks substance. Wagner claims that NutraSweet never intended to eliminate her position as Director, Human Resources; instead, according to Wagner, it was NutraSweet's intention to eliminate her, a woman, with the director position, fill a subordinate senior manager role with a male employee, and then promote that employee to director after Wagner had *972 been discharged. The facts simply do not bear this theory out. First, Losee gave Wagner the decision about which position to eliminate: her own director position or the senior manager role. Wagner recommended that her position be cut. 12(N) ¶¶ 66-67. This fact is not disputed. Second, Losee offered the remaining senior manager role to Wagner, but she refused it for her own reasons. 12(M) ¶¶ 66, 94. Given these undisputed facts, the Court cannot conclude that NutraSweet had a motive to discriminate against Wagner by eliminating her as an executive simply because she was a woman. To the contrary, NutraSweet gave Wagner every opportunity to remain employed in the R & D Group. It was Wagner who chose to resign; NutraSweet did not terminate her employment until after she had made this decision. Although there is presently a genuine issue as to when Tompkins became the Director, Human Resources, in late July 1991 or in early 1992,[15] this issue is not material. Therefore, the portion of Count III (subparagraph b) claiming gender discrimination against NutraSweet with respect to Wayne Tompkins is therefore granted.
V. Conclusion
This order puts an end to nearly three years of litigation. It is unfortunate that this case, which was not always before this Court, must be terminated on summary judgment at such a late stage in the proceedings. The Court fully understands that Ms. Wagner may not have been treated fairly during her tenure at NutraSweet, however, fairness is not the issue to be decided in an employment discrimination case. Rather, this court must apply Seventh Circuit precedent to reach a determination on the merits. We believe that the result reached in this case correctly applies the rulings of the Circuit Court to the facts of this case.
Therefore, for the reasons given above, the Clerk of the Court is directed to enter summary judgment in favor of the defendant, the NutraSweet Company, and against the plaintiff, Catherine Wagner, on Counts II and III of the Second Amended Complaint. Count I of the Second Amended Complaint is stricken because it contains class allegations that the Court denied in its orders dated October 13, 1994, and November 23, 1994. Wagner, 873 F.Supp. at 100-102. This case is terminated. Each party is to bear their own costs.
NOTES
[1] The Court further held that the Release, by itself, could not be rescinded unless Wagner tendered the consideration she received (i.e., the retention pay and the offer of outplacement services which were part of her separation package) in exchange for the Release Agreement. Wagner, 873 F.Supp. at 98.
[2] "The substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247, 106 S.Ct. at 2509. Factual disputes that are irrelevant or unnecessary are not material. Id.
[3] Wagner disputes that she recommended to Losee that her position be eliminated and a Manager, Human Resources position be created in its stead. Wagner instead contends that Tompkins held a manager position at the time the director position was eliminated and that the choice was not to create a manager position; the choice was who would remain employed at NutraSweet: Wagner or Tompkins. 12(N) ¶ 66. NutraSweet asserts, and the Court found in its previous opinion, that Tompkins filled a newly created senior manager position at the time the Director position was eliminated. Wagner, 873 F.Supp. at 93; 12(M) ¶ 66. For purposes of the pending motions, the Court's framing of the facts is intended to recognize the current dispute.
[4] In fact, "although the job had been reduced to a manager level, Losee's offer to Wagner did not entail a salary reduction." 12(M) ¶ 94. Wagner contends, however, that she believed her total compensation package would have been lower because the Manager, Human Resources position, at the time it was offered to her, did not include MIP bonuses. 12(N) ¶ 94.
[5] The time period when Tompkins was promoted to Director is in dispute. 12(N) ¶ 103. Wagner asserts that the promotion took place in late July or early August 1991. See Brief In Opposition at 7 (citing Wagner, 873 F.Supp. at 100). NutraSweet contends that Tompkins was not promoted until early 1992. 12(N) ¶ 137 Reply.
[6] Wagner claims that this director position was referred to as "Director, Human Resources." 12(N) ¶ 122.
[7] Ann Marie Sorcenelli, the Director, Human Resources, of the CSD Group left the company shortly before Vinitsky filled this position. 12(N) ¶ 122.
[8] Wagner claims that she did not learn that the CSD director position opened until "after her termination, in April 1991." 12(N) ¶ 120. NutraSweet contends that Wagner learned of the position in either March or April 1991. 12(N) ¶ 120 Reply. This dispute is material since only claims arising after March 25, 1991 are cognizable given the Court's first summary judgment ruling. However, given the Court's resolution of this issue, supra, we need not determine when Wagner learned about the position.
[9] John Russert was a Director, Human Resources for both the Corporate Staff and the NutraSweet Business Group. 12(N) ¶ 34 Reply.
[10] This distinction is material because the prima facie case for a refusal to hire or promote requires the plaintiff to apply "application" for the open position. In this case, Wagner technically was not allowed to apply for the CSD position. We nonetheless construe the "application" requirement broadly and find that Wagner's expressed interest in the position, coupled with Mike Losee's endorsement of Wagner, constituted an application for candidacy, even if Wagner was never actually considered for the CSD director vacancy.
[11] NutraSweet argues that this comment is inadmissible hearsay under Fed.R.Evid. 801(d)(2)(D). Wagner asserts that the statement is either an admission by a party opponent or alternatively not hearsay, because it is not offered for the truth of the matter asserted, but for the fact that this comment was made by the CEO (Flynn) to the decisionmaker (Clark). This Court finds that this statement is admissible as non-hearsay. However, as indicated herein, the probative value of this statement is relatively weak.
[12] Although Wagner now asserts that Losee related this remark to her "shortly after [she] was denied an opportunity to interview for the job, in April of 1991," 12(N) ¶ 129, in her second deposition, taken on December 4, 1992, she testified that her conversation with Losee "must have been around the [reconfiguration] process, the planning process." See id. at Reply. The Seventh Circuit has held that "a party may not create a genuine issue of fact by contradicting [her] own earlier statements, at least without a plausible explanation for the sudden change of heart." Richardson v. Bonds, 860 F.2d 1427, 1433 (7th Cir.1988). Wagner's current assertion cannot create a genuine issue of fact because her earlier deposition testimony places the conversation with Losee several months prior to the time that Clark made his decision to exclude Wagner from consideration for the CSD position. Moreover, even if Losee's statement to Wagner were found to be contemporaneous with the adverse employment decision, Losee merely related Clark's statement to Wagner; there is no objective evidence that Clark related the Flynn statement to Losee at or near the time Clark decided not to submit Wagner's name as a candidate for the position.
[13] In fact, Wagner's qualifications appear to have been equal to and, with respect to her human resources skills, better than those of Zada Clarke and Mike Vinitsky. 12(M) ¶ 88; 12(N) ¶ 48.
[14] If Mike Vinitsky had been the only candidate with organizational effectiveness skills, concededly a high percentage of the CSD director position, 12(M) ¶ 80, the selection of female applicants without these skills, and the rejection of plaintiff who, at least facially, appeared to have some of these skills, would allow Wagner to satisfy her prima facie case. The record, however, does not support this finding, since the other female applicants had some organizational effectiveness skills in addition to human resources experience. 12(M) ¶ 88.
[15] The Court previously found that Tompkins was named to the director position in late July 1991. Wagner, 873 F.Supp. at 93. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262483/ | 18 Md. App. 443 (1973)
306 A.2d 577
LESLIE MICHAEL RASSMUSSEN
v.
STATE OF MARYLAND.
No. 785, September Term, 1972.
Court of Special Appeals of Maryland.
Decided July 13, 1973.
The cause was argued before GILBERT, MENCHINE and DAVIDSON, JJ.
James J. White, III for appellant.
Mary Elizabeth Kurz, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Richard R. Cooper, State's Attorney for Kent County, on the brief, for appellee.
GILBERT, J., delivered the opinion of the Court.
Leslie Michael Rassmussen entered a plea of nolo contendere, Md. Rule 723, on May 21, 1969, in the Circuit Court for Kent County, to Indictments No. 1561, (possession of marijuana) No. 1562, (control of marijuana), and No. 1563 (selling marijuana). Thereafter, on October 8, 1969, Rassmussen was sentenced on Indictment No. 1561 to three years, dating from March 23, 1969, under the jurisdiction of the then Department of Correctional Services. Sentence was suspended and Rassmussen was placed on probation under supervision "for a period of three (3) years after he is *445 released from his present confinement." On Indictment No. 1562, Rassmussen received a similar three year sentence consecutive to that imposed in No. 1561. That sentence was also suspended and he was placed on probation for a period of three years consecutive to the probation imposed in Indictment No. 1561. On Indictment No. 1563, he received a third three year sentence which was consecutive to the sentences imposed in Nos. 1561 and 1562. The sentence was suspended and he was placed on probation under supervision "for an indeterminate period of time."[1]
Although the record is silent as to when the probation actually started, a Department of Parole and Probation printed form entitled "Rules and Conditions of Probations," which was addressed to Rassmussen, states in part:
"In accordance with authority conferred by the Maryland Parole and Probation Laws, you are being released on probation this date, October 8, 1969, (Fr: 3-23-69) an indefinite period, by the Hon. George B. Raisin, Jr., Judge, sitting in and for the Kent County Circuit Court at Chestertown, Kent ... County, Maryland."
The quoted form was signed by Rassmussen on October 9, 1969, and witnessed by his then probation officer.
Rassmussen's behavior during the probationary period was erratic. On January 12, 1970, he was charged with violation of probation. At that time, Judge Raisin advised Rassmussen of his rights and further stated that "the County or State would not furnish Counsel for him." Rassmussen requested and was granted an opportunity to employ an attorney. The case was continued until January 16, 1970. When Rassmussen next appeared before the court without counsel, he stated that he did not desire any additional time to employ a lawyer, and he elected to proceed at that time without the services of counsel. Judge *446 Raisin then found Rassmussen to have violated the conditions of his probation and remanded him to the custody of the sheriff of Kent County. Approximately two months later, Rassmussen was again taken before the judge for a "Dispositional hearing" and again advised of his right to employ counsel. Rassmussen again elected to proceed without an attorney. Notwithstanding the finding of January 16, 1970 that Rassmussen had violated probation, the hearing judge continued Rassmussen's probation. On June 27, 1972, Rassmussen was again charged with violation of probation, and on November 28, 1972 he was once more advised of his right to an attorney "at his own expense."[2] He elected to represent himself. An evidentiary hearing was scheduled for December 7, 1972.
At that hearing, a probation officer told the court that Rassmussen had failed to stay employed and that he had been charged in Ocean City, Maryland, with assault, disorderly conduct, and resisting arrest. Additionally, Rassmussen failed to appear in answer to the charges and, instead, absconded to Parker, West Virginia, from whence he was returned to Maryland. At the end of the hearing the trial judge stated:
"... [T]he Court finds that you have violated your probation by failing to advise the Probation Officer or Department of where you were currently living or employed at all times."
After observing that Rassmussen had not taken advantage of the opportunities afforded him, the judge stated:
"... [I]n each of these cases, #1561, #1562, and #1563, ... probation is stricken and the sentence is executed, that these terms will be served consecutively."
In this Court, Rasmussen asserts that he was "prejudiced by not having assistance of counsel at his violation of probation hearing." He relies upon Argersinger v. Hamlin, *447 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) to bolster his position. We think that his reliance upon both Argersinger and Mempa is misplaced. Argersinger held that absent a knowing and intelligent waiver, a person could not be imprisoned for an offense unless he was represented by counsel at trial. We have held in Knight v. State, 7 Md. App. 313, 255 A.2d 441 (1969) that a revocation of probation hearing is not such a trial. Argersinger is inapposite.
In Mempa, the Supreme Court stated that a probationer is entitled to be represented by appointed counsel at a "combined revocation and sentencing hearing." See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 65 [13 Cr. L. 3081, decided May 14, 1973].
In Knight, supra, we said that Mempa affected the rules as to revocation of probation only when the imposition of the sentence was deferred at the time of the trial on the substantive offense. It was not applicable when, at the trial for the substantive offense, the sentence was imposed, and the execution of the sentence was conditionally suspended.
Recently, in Laquay v. State, 16 Md. App. 709, 299 A.2d 527 (1973), we reiterated our holding in Knight v. State, supra, that while, as a general rule, counsel is not required at a revocation of probation hearing, an exception arises when a defendant was not sentenced prior to his being placed on probation. We further stated in Laquay, at 723, what we have previously indicated in Knight, at 319-321:
"The appointment of counsel for an indigent is constitutionally required, in the absence of an effective waiver, when due process would be affronted, in that, for lack of counsel the probationer would be at such a disadvantage that an ingredient of unfairness actively operates in the process leading to the revocation of his probation."
In Laquay, at n. 6, we observed that Gagnon v. Scarpelli, supra, was then pending in the Supreme Court. Laquay as decided on January 29, 1973; Gagnon was decided on May 14, 1973. The Supreme Court held that the need for counsel at a *448 revocation of probation hearing "... must be made on a case-by-case basis in the exercise of a sound discretion...." Mr. Justice Powell, speaking for the majority,[3] further said:
"It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record." (Emphasis supplied).
We find nothing, however, in Gagnon v. Scarpelli, supra, to indicate that it must be applied retroactively, and we decline to so hold. In determining whether or not a decision *449 is to be viewed retroactively or non-retroactively, three considerations are to be utilized. These considerations are set forth in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), as:
"The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) on the effect of the administration of justice of a retroactive application of the new standards."
See Scott v. State, 7 Md. App. 505, 516-517, 256 A.2d 384 (1969).
In Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Court said:
"... [T]he retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved."
See also Billings v. State, 10 Md. App. 31, 267 A.2d 808 (1970), wherein we opined, at 36:
"It is clear from Stovall v. Denno, supra, that the constitutional right to counsel, although retroactively applied with respect to the trial itself, Gideon v. Wainwright, 372 U.S. 335, [83 S.Ct. 792, 9 L.Ed.2d 799 (1963)], ... is not necessarily to be so applied with respect to all critical stages of the prosecution." (Emphasis supplied).
A revocation of probation hearing is, as we have previously noted, neither a trial nor a critical stage of the prosecution.
By whatever standard is applied to determine the *450 retroactivity or non-retroactivity of decisions, one must conclude that Gagnon is not to be applied retroactively. A retroactive application of Gagnon would create chaos in the administration of criminal justice and necessitate in the first instance a hearing to determine whether or not the appointment of counsel is required under the facts of the particular case. If it is so concluded, then in the second instance a rehearing on the merits would be required. If counsel would not be required, the "grounds for refusal" must be "stated succinctly in the record."
Inasmuch as we decline to give retroactive viability to Gagnon, we look then to the law as it existed at the time of Rassmussen's hearing for violation of probation. The law then in effect had been explained in Knight v. State, supra, and Laquay v. State, supra.
Unlike Laquay, Rassmussen did not request the assistance of counsel except for the purpose of this appeal. Nevertheless, even if he had sought the services of a court-appointed attorney, we think due process would not have been affronted, under the factual situation of this case, had such appointment been refused. There is nothing in the record before us that gives rise to an inference that Rassmussen, because of lack of counsel, was put "at such a disadvantage that an ingredient of unfairness" crept into the proceedings.
Order affirmed.
NOTES
[1] No question was raised here or in the hearing court as to whether or not probation had actually expired on Indictment No. 1561, nor was the legality vel non of the indeterminate period of probation imposed under Indictment No. 1563 presented here or below.
[2] The transcript does not show the quoted language, but the docket entries as to all three cases, i.e., Nos. 1561, 1562 and 1563 do so state.
[3] Mr. Justice Douglas was the lone dissenter. He argued that due process required the appointment of counsel for Scarpelli "in this case because of the claim that [Scarpelli's] confession of the burglary was made under coercion." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262484/ | 25 Cal.Rptr.3d 500 (2005)
127 Cal.App.4th 347
Daniel R. WOLSKI, Plaintiff and Appellant,
v.
FREMONT INVESTMENT & LOAN et al., Defendants and Respondents.
No. G033169.
Court of Appeal, Fourth District, Division Three.
March 4, 2005.
*502 Lakeshore Law Center, Jeffrey Wilens, Yorba Linda; Law Offices of Jeffrey P. Spencer, Jeffrey P. Spencer, San Clemente; Law Offices of Michael F. Creamer and Michael F. Creamer, Santa Ana, for Plaintiff and Appellant.
Norma P. Garcia, Costa Mesa, for Consumers Union of the U.S. Inc., as Amicus Curiae on behalf of Plaintiff and Appellant.
Kevin D. Stein for California Reinvestment Coalition as Amicus Curiae on behalf of Plaintiff and Appellant.
Barbara Jones, Pasadena, for AARP Foundation Litigation as Amicus Curiae on behalf of Plaintiff and Appellant.
Call, Jensen & Ferrell, Scott J. Ferrell, Elizabeth K. Penfil, Melinda Evans and Wayne W. Call, Newport Beach, for Defendants and Respondents.
*501 OPINION
RYLAARSDAM, Acting P.J.
In a case of first impression, we are asked to decide whether a yield spread premium (YSP) paid in connection with a residential mortgage loan is included in the definition of points and fees payable by a borrower at or before closing under the predatory lending law (Fin.Code, § 4970 et seq.; all further statutory references are to this code unless otherwise stated). In sustaining without leave to amend the demurrer of defendants Fremont Investment & Loan, Raymond Harold Cason, Jr., and First American Funding, Inc. to plaintiff Daniel R. Wolski's first amended complaint, the court held the YSP did not fall within that definition. Plaintiff contends this was error.
In our original opinion, we held that the YSP did not fall within the definition of total points and fees payable by a borrower at the close of escrow and affirmed the judgment. Subsequently, we granted rehearing. Upon our reconsideration of the issue, we reach the same conclusion.
FACTS
Defendant Fremont made a $185,000 residential mortgage loan to plaintiff; defendants First American and Cason acted as loan brokers. After plaintiff learned he could have obtained a loan with a lower and fixed interest rate, he filed this suit claiming violation of section 4970 et seq. and Business and Professions Code section 17200. He alleged the loan was a "covered loan" as defined by section 4970, subdivision (b)(1) because it was less than $250,000 and his total points and fees payable at closing exceeded 6 percent of the loan amount. Plaintiff alleged defendants breached various sections of the predatory lending law by failing to make certain disclosures *503 and by including a prepayment penalty.
Defendants demurred, primarily on the grounds that the transaction did not violate the predatory lending law because it was not a covered loan. Total points and fees as alleged by plaintiff exceeded 6 percent only because he had erroneously included a $3,700 YSP in his calculations. Defendants claimed that under a proper reading of the statute, a YSP is not included in points and fees. They also argued that because there was no violation of the predatory lending law, the Business and Professions Code section 17200 cause of action failed for lack of a predicate offense. The court sustained the demurrer without leave to amend, ruling that the YSP was not included in the definition of points and fees and thus the loan was not a covered loan under the statute.
DISCUSSION
Section 4970, subdivision (b)(1)(B) provides that a loan is a covered loan and therefore subject to the terms of the statute, if "[t]he total points and fees payable by the consumer at or before closing for a mortgage or deed of trust will exceed 6 percent of the total loan amount." The parties agree total points and fees for the loan at issue here exceed 6 percent only if the YSP is included. Plaintiff argues it should be included; defendants contend it should not.
Foundational to our decision is an understanding of the nature of a YSP. One court has described it thus: "A Yield Spread Premium is a bonus paid to a broker when it originates a loan at an interest rate higher than the minimum interest rate approved by the lender for a particular loan. The lender then rewards the broker by paying it a percentage of the `yield spread' (i.e., the difference between the interest rate specified by the lender and the actual interest rate set by the broker at the time of origination) multiplied by the amount of the loan. [Citation.]" (In re Bell (Bankr.E.D.Pa.2004) 309 B.R. 139, 153, fn. 9; see also Lane v. Residential Funding Corp. (9th Cir.2003) 323 F.3d 739, 743.) As alleged in the complaint, the lender pays the YSP to the broker at closing, and the borrower pays a higher interest rate over the life of the loan to compensate for the payment. (O'Sullivan v. Countrywide Home Loans, Inc. (5th Cir.2003) 319 F.3d 732, 739; In re Bell, supra, 309 B.R. at p. 153; In re Apgar (Bankr.E.D.Pa.2003) 291 B.R. 665, 675.)
Defendants maintain that since a YSP is not paid by the borrower, but by the lender, it does not fall within the statutory language of "[t]he total points and fees payable by the consumer at or before closing." (§ 4970, subd. (b)(1)(B), italics added.) But plaintiff contends he pays the YSP in the form of higher interest. Defendants counter that, even assuming the statute can be construed in such a fashion, the YSP is not "payable ... at or before closing." (§ 4970, subd. (b)(1)(B), italics added.) We agree.
In reviewing a statute, "`[w]e first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.' [Citation.] If the statutory language is unambiguous, `we presume the Legislature meant what it said, and the plain meaning of the statute governs.' [Citation.]" (Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 485, 17 Cal.Rptr.3d 88.)
*504 Here, the phrase "at or before closing" is plain and its meaning is clear. Contrary to plaintiff's suggestion, it does not include payments made after closing and over the life of the loan, such as interest. To interpret the language in that fashion would render the words "at or before closing" surplusage in violation of the rules of statutory construction. (Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 757, 52 Cal.Rptr.2d 134.) "`We cannot presume the Legislature ... engaged in an idle act or enacted a superfluous statutory provision. [Citation.]' [Citation.]' "In analyzing statutory language, we seek to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose...." [Citations.]' [Citation.]" (Tesco Controls, Inc. v. Monterey Mechanical Co. (2004) 122 Cal.App.4th 1467, 1479, 19 Cal.Rptr.3d 646.)
Plaintiff argues that even though the increased interest is paid over the life of the loan, it is "payable" at or before close. He analogizes the increased interest to a consumer paying a charge with a credit card where, even though the bank and not the consumer hands over the actual cash, the consumer is liable for reimbursing the bank for payment, plus interest. Thus, he claims, even though the YSP is not "paid" at or before closing, it is "payable" at that time.
But this is a strained and anomalous reading of the word "payable" in the context of the remaining language of the section. We may infer from the pleadings that all charges included in points and fees as disclosed by defendants were paid on or before closing. To construe the language to include one payment made over the life of the loan, when all others are paid at closing, would lead to an absurd consequence, in derogation of rules of statutory interpretation (Sampson v. Parking Service 2000 Com. Inc. (2004) 117 Cal.App.4th 212, 224, 11 Cal.Rptr.3d 595) and improperly "rewrite the law to conform to an intention that has not been expressed. [Citation.]" (Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 674, 17 Cal.Rptr.3d 427.)
Nor does other language in the statute compel a different result. Plaintiff and amici argue that YSP's must be included because section 4970, subdivision (c)(2) defines points and fees to include "[a]ll compensation and fees paid to mortgage brokers in connection with the loan transaction." But this does not change the limitation of the language of subdivision (b)(1)(B) which refers to the "total points and fees payable by the consumer at or before closing ..." (§ 4970, subd. (b)(1)(B), italics added), which does not include a YSP, as discussed above.
In applying section 4970, our function "is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted." (Code Civ. Proc., § 1858; Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 123, 113 Cal.Rptr.2d 90.) If the Legislature had intended that all charges payable by a borrower were to be included in the calculation of points and fees payable at closing, it easily could have drafted the statute that way. We will not rewrite it to do so.
Plaintiff urges us to consider the legislative history of the statute, pointing to the evils the Legislature sought to cure, including "broker kickbacks." But a committee analysis of the bill after amendments made by the Senate reflects no discussion of broker kickbacks, although it did state one of its goals was to "[p]rohibit steering [a] consumer to a loan less favorable than warranted by [the] credit worthiness [sic] of [the] borrower." (Assem. Com. on Business and Finance, Analysis *505 of Assem. Bill No. 489 (2001-2002 Reg. Sess.) as amended Sep. 6, 2001, p. 3, at [as of Mar. 4, 2005].) However, this stated purpose fails to support plaintiff's interpretation of the statute. Moreover, nothing in the legislative history or the record shows that failing to include a YSP in the definition of points and fees payable by a consumer at closing defeats the purpose of the predatory lending law.
Further, our "authority to investigate the intent of the Legislature is subject to the precondition that the statutory language in question be ambiguous, uncertain or unclear. Otherwise, the `plain meaning rule' prevails, and the literal text of the statute must be respected without judicial construction or interpretation. [Citations.]" (Kramer v. Intuit, Inc. (2004) 121 Cal.App.4th 574, 578-579, 18 Cal.Rptr.3d 412.)
In addition, plaintiff directs us to nothing in the legislative history that specifically deals with treatment of YSP's. Assembly and Senate committee reports reveal the Legislature investigated subprime lending and predatory lending practices and was aware of federal and other state statutes enacted to deal with these matters. (E.g., Assem. Com. on Appropriations, Analysis of Assem. Bill No. 489 (2001-2002 Reg. Sess.) May 16, 2001, pp. 2-3, at [as of Mar. 4, 2005]; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 489 (2001-2002 Reg. Sess.) Jul. 3, 2001, pp. 1-2, 5, 7, at [as of Mar. 4, 2005].) "[I]t is a settled principle of statutory construction that a Legislature in legislating with regard to an industry or an activity must be regarded as having had in mind the actual conditions to which the act will apply; that is, the customs and usages of such industry or activity." (Irvine Co. v. California Emp. Com. (1946) 27 Cal.2d 570, 581, 165 P.2d 908.)
Thus, we may safely infer the Legislature was aware of the mechanics of YSP's and understood that they are paid by the lender with a concomitant higher interest owed by the borrower. Had it intended that a YSP be included as "points and fees payable by the consumer at or before closing" (§ 4970, subd. (b)(1)(B)), it would have included appropriate language.
Cases interpreting a federal statute with similar language are consistent with our reading of section 4970. The Home Ownership and Equity Protection Act (HOEPA) requires a lender to make specific disclosures for certain types of mortgage loans. (15 U.S.C. § 1639(a).) Similar to requirements for a covered loan under section 4970, subdivision (b)(1)(B), disclosure is required for a mortgage secured by the borrower's primary residence where "the total points and fees payable by the consumer at or before closing will exceed the greater of [¶] (i) 8 percent of the total loan amount...." (15 U.S.C. § 1602(aa)(1)(B)(i).) This section has been consistently read to exclude YSP's from the 8 percent amount.
In In re Mourer (W.D.Mich.2004) 309 B.R. 502, the court overturned a ruling by the bankruptcy court that found that, under the regulations implementing HOEPA (12 C.F.R. § 226.32(a)(1)(ii)), the YSP was a fee payable by the borrower at or before the close of the loan. It stated that such an interpretation "flies in the face of that very provision's express inclusion only of `fees payable by the consumer at or before the loan closing.'" (Id. at p. 505; Mills v. *506 Equicredit Corp. (E.D.Mich.2004) 344 F.Supp.2d 1071, 1076-1077; see also In re Sigle (Bkrtcy.N.D.Miss.2004) 310 B.R. 303, 306 [YSP "clearly was not paid `at or before closing' by the (borrower)"]; In re Collins (Bkrtcy.N.D.Miss.2004) 310 B.R. 299, 301 [same]; In re Bell, supra, 309 B.R. at p. 153 [same].)
Plaintiff concedes the interpretation of HOEPA and its regulations, but contends the Legislature was aware of HOEPA's inadequacy and enacted section 4970 et seq. to cure the deficiencies. Thus, he concludes, we should not use HOEPA cases to interpret the statute at hand.
There is some discussion of HOEPA in a Senate committee analysis of the bill that ultimately enacted section 4970 et seq. It states that "HOEPA does not prohibit loans with high interest rates or fees or cap rates or fees. Rather, it subjects certain loans, the rates or fees for which exceed specified levels, to enhanced disclosures, restrictions on certain contract terms, and private and administrative consumer remedies for violations." (Sen. Com. on Banking, Commerce and International Trade, Analysis of Assem. Bill No. 489 (2001-2002 Reg. Sess.) Aug. 29, 2001, p. 9, at [as of Mar. 4, 2005].) The committee analysis also refers to a 2000 United States Department of Housing and Urban Development report, entitled "Curbing Predatory Home Mortgage Lending," which contained several "recommendations to combat predatory lending, while maintaining access to credit for low- and moderate-income borrowers." (Id. at p. 10.) The report described four types of abuses: "loan flipping"; "excessive fees" and "packing"; "lending without regard to the borrower's ability to repay"; and "outright fraud and abuse." (Ibid.)
But none of this has anything to do with the plain meaning of section 4970 or HOEPA. Instead, given the Legislature's apparent awareness of the alleged deficiencies in HOEPA, there would be all the more reason for it to clearly specify that YSP's are to be included in the definition of points and fees payable by the borrower at closing, if it so intended.
Amici argue YSP's are a "clear example" of "excessive fees and `packing,'" which "invariably occur[ ] without the borrower's knowledge or understanding." Thus, they conclude, "the Legislature intended to curtail this practice by including yield spread premiums in the calculation of ... a `covered loan.'" But they point to nothing in the legislative history to show that the Legislature deemed YSP's to be "excessive fees and `packing.'" To the contrary, an earlier version of the bill defined "`packing'" as "[t]he selling of additional products in a loan agreement." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 489 (2001-2002 Reg. Sess.) as amended June 21, 2002, p. 3, at [as of Mar. 4, 2005].) And while it is not theoretically illogical to characterize YSP's as excessive fees, nobody did so in any of the legislative history of the statute.
The three other main "predatory practices" defined in that previous draft of the bill included "`flipping,'" defined as "the making of a subsequent loan to refinance the original loan ... that results in no net economic benefit to the borrower"; "the making of a loan without regard to the borrower's monthly income and obligations"; and "the charging of fees for loan services that bear no reasonable relationship to the value of services actually performed." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 489 (2001-2002 *507 Reg. Sess.) as amended June 21, 2002, p. 3, at [as of Feb. 22, 2005].) None of these refer to or discuss YSP's.
At the time the petition for rehearing was granted, plaintiff and amici requested we take judicial notice of certain documents. We grant the request as to only one document, a letter dated August 29, 2003 from the Chief Legal Officer of the California Department of Real Estate (DRE) to someone whose name has been redacted. We do so, even though the letter states on its face that it "should not be considered a formal interpretative opinion, since the Department does not have the authority to issue such opinions with respect to the [predatory lending law]." However it does state it is the DRE's "administrative interpretation of the provisions of the [predatory lending law]...." Nonetheless, as discussed below, we do not find the substance of the letter persuasive. (See In-Home Supportive Services v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 720, 725, fn. 2, 199 Cal.Rptr. 697.)
As to the remaining documents, a fax transmittal sending the DRE letter to counsel for plaintiff, a letter from industry groups to the California Deputy Secretary for Business Regulation, a letter from a state senator to the California Corporations Commissioner, a letter from the Assistant Commissioner of the DRE to the Associate Director of the California Reinvestment Committee, and a letter from a deputy attorney general to a California assemblyman (for which there is no evidence it is a formal opinion of the Attorney General), there is no basis for our taking judicial notice. (Evid.Code, § 452; see also Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 607-608 & fn. 13, 89 Cal.Rptr.2d 370.)
Plaintiff and amici urge us to give deference to the DRE's interpretation of the statute as set out in its letter. They rely on cases that support the general principle that "courts give great weight and respect to an administrative agency's interpretation of a statute governing its powers and responsibilities. [Citation.]" (County of Santa Barbara v. Connell (1999) 72 Cal.App.4th 175, 185, 85 Cal.Rptr.2d 43.) But, as plaintiff and amici acknowledge, this deference is proper only if the language of the statute is ambiguous and susceptible to more than one reasonable meaning. (Building Industry Assn. of San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 883, 22 Cal.Rptr.3d 128.) We have determined that the language is plain on its face. Further, the basis of a court's deference to administrative interpretations is based on an agency's expertise. (Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1103, 1 Cal.Rptr.3d 76.) The DRE interpretation here is based substantially if not entirely on its counsel's reading of the language of the statute, not on its expertise or experience in applying the law or issuing regulations.
Likewise, the fact that the DRE was granted the power to enforce the statute (§§ 4970, subd. (f), 4975) and acted within such authority "by convening a task force to ... interpret the aspects of the statutory language about which industry and consumer groups had differing opinions," does not mean its interpretation has the force of law or is even correct.
It is the function of the judiciary, not an administrative agency, to construe statutory language. "`Ultimately, the interpretation of a statute is an exercise of the judicial power the Constitution *508 assigns to the courts.' [Citations.]" (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 472, 20 Cal.Rptr.3d 428, 99 P.3d 1015.) We have done so, and our reading of the language is in direct conflict with that of the DRE. "It is the court's duty to construe statutes, `even though this requires the overthrow of an earlier erroneous administrative construction.' [Citations.]" (Id. at p. 474, 20 Cal.Rptr.3d 428, 99 P.3d 1015.) An administrative agency's "`interpretation of a regulation or statute does not control if an alternative reading is compelled by the plain language of the provision.' [Citation.]" (Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, 930, 8 Cal.Rptr.3d 178.)
Amici place great emphasis both on the understanding of the industry groups as to the meaning of the section when it was passed and on meetings between industry groups and state agencies after passage of the statute to clarify their interpretation of it. This reliance is misplaced for several reasons. First, it makes no difference what industry groups believed the statute meant. (See McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1161, fn. 3, 69 Cal.Rptr.2d 692 [court refuses to take judicial notice of letters to legislators by supporters and opponents of bill].) Further, a postenactment letter from a state senator who had sponsored a different predatory lending law, expressing his belief that YSP's "were always considered" to be included in points and fees, has no legal force. (Italics omitted.) (See Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 920, fn. 6, 129 Cal.Rptr.2d 811, 62 P.3d 54 ["`objective of an authoring legislator'" not considered in construing statute where no indication Legislature knew of objective or passed bill to effect it]; see also Carman v. Alvord (1982) 31 Cal.3d 318, 331, fn. 10, 182 Cal.Rptr. 506, 644 P.2d 192 [drafter's "after-the-fact" explanation of intent does not govern determination of how voters understood proposition]; Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 399, fn. 9, 20 Cal.Rptr.2d 164 [letter from legislative counsel sent two years after passage of statute inadmissible to show legislative intent because no evidence it reflected understanding of those who enacted statute].)
We are mindful that YSP's are considered by some to be a predatory lending practice, and we can understand why consumer groups would want them regulated. However, section 4970 did not effect that regulation. The remedy to make that change is with the Legislature.
Plaintiff acknowledged in the trial court he could not amend this cause of action, and we agree with that conclusion. Because the cause of action for violation of Business and Professions Code section 17200 was predicated on the violation of the predatory lending law, it, too, must fail.
DISPOSITION
The judgment is affirmed. The motions to file amicus briefs are granted. The request for judicial notice is granted as to the August 29, 2003 letter from the Chief Legal Officer of the California Department of Real Estate only, and denied as to the remaining documents. Respondents are entitled to their costs on appeal.
WE CONCUR: ARONSON and IKOLA, JJ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262486/ | 306 A.2d 24 (1973)
In re BRANDYWINE VOLKSWAGEN, LTD.
Superior Court of Delaware, New Castle.
April 30, 1973.
*26 Jeffrey M. Weiner, Dept. of Justice, Wilmington, for appellant.
Edward Z. Sobocinski, and Joseph M. Kwiatkowski, Wilmington, for appellee.
TAYLOR, Judge.
This is an appeal[1] from the decision of the Consumer Affairs Board [Board] which vacated a cease and desist order issued by the Director of the Division of Consumer Affairs [Director].
On August 10, 1971 Martin J. Lynch [Lynch] purchased a 1970 Volkswagen squareback from Brandywine Volkswagen Ltd. [Brandywine]. During the negotiation for the purchase of the Volkswagen, Lynch noted that the mileage on the odometer was 13,706 and commented to the salesman about the mileage reading. The Brandywine salesman agreed that it was a low mileage for a 1970 Volkswagen. Lynch was looking for a car with low mileage and good performance. Lynch bought the Volkswagen. Approximately four months after the purchase, he began having trouble with the car. An examination of the ownership records of the vehicle indicated that the car's mileage exceeded the odometer reading by at least fifty percent. Proceedings were instituted with the Division of Consumer Affairs against Brandywine.
The Board found that Brandywine purchased the Volkswagen at the Manheim Auto Auction in Pennsylvania and that it had an odometer reading of less than 13,076 miles. Brandywine received a New York form designated MV-50 in connection with the purchase. Brandywine filed this form with the Delaware Division of Motor Vehicle with its application for Delaware registration for the car. The Board found that there was "no evidence of intent to misrepresent in any way the allegations set forth in the Order."
This case turns on the interpretation of 6 Del.C. § 2513. Sections 2511 through 2527 were enacted in 1965 by Chapter 46, Volume 55, Laws of Delaware, which was entitled "An act to amend Title 6, Delaware Code to protect the consumer against fraudulent and deceptive merchandising practices."[2] § 2512, which was also included in the Act, contains two provisions which are significant in the interpretation of the sections of the Act. The first sentence states that the purpose of the Act is "to protect consumers and legitimate business enterprises from unfair and deceptive merchandising practices in the conduct of any trade or commerce in part or wholly within this Statute." The second states that the Act "shall be liberally construed and applied to promote its underlying purposes and policies."
§ 2513(a) reads:
"(a) The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise, whether or not any person has in fact been misled, deceived or damaged *27 thereby, is declared to be an unlawful practice."[3]
Brandywine had been in possession of information that the car's mileage was at least 21,000, but there is no evidence that the salesman knew of this when he talked to Lynch. A principal is liable for the fraud of an agent even though the fraud was committed without the knowledge, consent or participation of the principal if the act was done in the course of the agent's employment and within the apparent scope of the agent's authority. 37 Am.Jur. 2d 413, Fraud & Deceit, § 312. The mere fact that the agent believed the statement to be true or was unaware of the falsity of the statement is not a defense to be asserted by the principal, if the principal is possessed of the knowledge or is chargeable with it. ibid, p. 414. Therefore, the untrue statement must be treated as being made by Brandywine and must be tested against the information which Brandywine had received.
The common thread which runs through actions of fraud or deceit at law, actions predicated upon misrepresentation in equity, and actions under 6 Del.C. § 2513 is the making of a false or misleading statement or the concealment, suppression or omission of information, thereby creating a condition of falseness. In this case the undisputed testimony establishes a direct representation that the odometer reading was correct and an implied representation that Brandywine had no information causing it to doubt the authenticity of the odometer reading.[4] The representations were false.
One of the necessary elements to recovery in a fraud action at law[5] is that a person who makes a false statement knew that the statement was untrue or made the statement "with a reckless indifference to the truth of the matters and without knowledge of their truth". Nye Odorless Incinerator Corp. v. Felton, 5 W. W.Harr. 236, 162 A. 504, 511 (1931); Barni v. Kutner, 6 Terry 550, 76 A.2d 801, 806 (1950). The general rule is that a person is chargeable with a false statement if it was made under such circumstances as to raise a presumption of his knowledge of the falseness. 37 Am.Jur.2d 261, Fraud & Deceit, § 197. This principle applies where a person has a duty to know the truth or where the facts are peculiarly within the knowledge of the person making the statement. ibid, p. 267, § 201. This element is present in this instance.
The Board found that Brandywine had no intent to misrepresent. It is not clear from the phrase used by the Board whether the Board intended to find (1) that Brandywine did not intend to make the statement, or (2) that Brandywine made the statement but did not intend to make an untrue statement, or (3) that Brandywine by making the statement did not intend to deceive Lynch. There is nothing in the record indicating that Brandywine did not intend the response given by its agent. From the foregoing review *28 of the law, it is clear that the mere fact that Brandywine may not have intended to make an untrue statement is not a valid defense since it was chargeable with the information which it had received. Assuming the Board meant the third alternative, the question to be decided is whether an intent to deceive is essential.
In a fraud action in a court at law, in order to warrant recovery, it must be established that the person making the representation did so with intent to defraud. Nye Odorless Incinerator Corp. v. Felton, supra. The misrepresentation may be as to a fact peculiarly within the maker's own knowledge thereby creating a delusion or such as to lull the suspicion of a careful man inducing him to forego further inquiry. Kent County R. R. Co. v. Wilson, Del.Super., 5 Hous. 49, 50 (1875). It has been held in some jurisdictions that intent to defraud or deceive may be inferred from the making of an untrue representation by one who makes the representation recklessly as of personal knowledge without regard to whether or not it is true or under circumstances in which one has in his possession the means of knowledge. 37 Am.Jur.2d 611-12, Fraud & Deceit, § 446.
Although intent to defraud or deceive is an essential element to relief at law, it is not essential to equitable relief if a false statement has been made. Holley v. Jackson, 39 Del.Ch. 32, 158 A.2d 803 (1959); 37 Am.Jur.2d, 292-3, Fraud & Deceit, § 220. In equity, misrepresentation may be founded merely upon a false statement even though its falseness is not known to the maker of the statement. Eastern States Petroleum Co. v. Universal Products Co., 24 Del.Ch. 11, 3 A.2d 768, 775 (1939); In re Construction Materials Corp., D.Del., 18 F.Supp. 509, 526 (1936). Misrepresentation does not require legal fraud. Glenn v. Tide Water Associated Oil Co., 34 Del.Ch. 198, 101 A.2d 339 (1953). In equity, it has been held that a person may be chargeable if he makes an untrue statement of fact and has no knowledge that the statement is true, even though he believed it to be true, 3 Pomeroy's Equity Jurisprudence 490, § 887, or if one has a duty of knowing the truth and makes an untrue statement, ibid, p. 496, § 888a, or if the untrue statement results from one's own forgetfulness. ibid.[6]
Since a court of law and a court of equity test false statements according to different rules in determining whether a wrong has been committed entitling a person to relief, it is necessary to resort to interpretational aids found in the statute to determine which rule should be applied under this statute. The stated objective of the statute is "to protect consumers and legitimate business enterprises and from unfair and deceptive merchandising practices." The legislature further provided that the statute should be "liberally construed and applied to promote its underlying purposes and policies." Since the rule more favorable to the consumer is the equity rule, the quoted legislative intent requires that the equity rule be used in interpreting the statute.[7] A second indicia that the legislature intended that the statute be governed by the equity rule rather than the law rule is the remedy provided in the statute. The statute authorized enforcement *29 proceedings in the Court of Chancery to be brought by the Attorney General.[8]
The wording of 6 Del.C. § 2513 indicates that the legislature did not intend that the definition of unlawful practices would merely parallel common law fraud. It provided that it would apply regardless of whether or not a person has been misled, deceived or damaged; under the common law it is required that a person be misled, or deceived and be damaged. Moreover, it specifically required in connection with concealment, suppression or omission, that there be "intent that others rely upon such concealment, suppression or omission". This is the only reference to "intent". This reference is not to intent to misrepresent or intent to make a deceptive or untrue statement, but intent that others rely thereon. If the legislature had meant to follow the requirements for common law fraud, this statutory reference to intent was superfluous.
The Court holds that the Board did not correctly apply the statutory standard in holding that Brandywine did not commit an unlawful practice under the statute because there was no evidence of intent to misrepresent. The Board appears to equate this proceeding to an action at law by the buyer to recover damages for a fraudulent transaction. The Court holds that the statute is not so confined.
The record contains no evidence to refute or weaken Lynch's testimony concerning his questions about the mileage of the car and Brandywine's salesman's responses. The record further is undisputed that the car's mileage was at least fifty per cent higher than that registered on the odometer. The record further is undisputed that the form containing the mileage information had been in Brandywine's possession and had been used by Brandywine to obtain Delaware title. Hence, the undisputed record shows an untrue statement by Brandywine in connection with an anticipated sale and Brandywine's having had within its possession material from which the untruth of the statement could have been ascertained. Upon this record, as to the facts just recited, the Board could have made no supportable findings other than those recited above. See 30 Am.Jur.2d 236-7, Evidence § 1084.[9] These facts constitute an unlawful practice under 6 Del.C. § 2513.
Accordingly, the decision of the Board is reversed and this matter is remanded to the Board for further proceedings consistent with this decision.
It is so ordered.
NOTES
[1] Statutory authority is founded in 29 Del. C. § 8613.
[2] A comprehensive review of state laws on this subject is found in 46 Tulane Law Review 724-60. New impetus for consumer protection at the federal level was given by the United States Supreme Court decision in F.T.C. v. Sperry & Hutchinson, 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972).
[3] Forbidden acts are: "deception", "fraud", "false pretence", "false promise", "misrepresentation", and "concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission."
[4] With respect to the sales conversations between Lynch and the Brandywine's salesman before the sale, Lynch testified that he observed to the salesman "That's low mileage for a '70", and the salesman replied "Yes". Later, upon examination by the Chairman of the Consumer Affairs Board, Lynch testified he asked the salesman "How many miles are on this car?... Is this the true reading?" and the salesman's answer was "Yes".
[5] To support a fraud action at law there must be the following: (1) material representation, (2) which was false, (3) known by the maker to be false or made in reckless indifference to the truth, (4) made with intent to induce other party to act, and (5) a misleading of the other party in reliance upon which he acted and was damaged. Nye Odorless Incinerator Corp. v. Felton, 5 W.W.Harr. 236, 162 A. 504, 510 (1931).
[6] It should be noted that the consolidation of law and equity in many jurisdictions has tended to dull the historic distinctions between law and equity in the treatment of misrepresentation.
[7] It has been held that the phrase "deceptive device or contrivance" as used in the Securities Exchange Act of 1934, and as applied by the regulations thereunder, is not limited by common law standards of fraud and deceit. Speed v. Transamerica Corp., D.Del., 99 F.Supp. 808, 831 (1951), affd. (3 Cir.) 235 F.2d 369 (1956); Norris & Hirshberg, Inc. v. S.E.C., 85 U. S.App.D.C. 268, 177 F.2d 228, 233 (1949). This holding was compelled in part by the legislative intent that an objective of the statute was the protection of the public. ibid.
[8] Additional enforcement powers were thereafter vested in the Division of Consumer Affairs, Department of Community Affairs and Economic Development by 58 Del.Laws Ch. 336, but the powers described above were retained.
[9] A finding by an administrative board must be supported by substantial competent evidence. Johnson v. Chrysler Corp., Del.Supr., 213 A.2d 64, 66 (1965); Children's Bureau of Delaware v. Nissen, 3 Terry 209, 29 A.2d 603, 609 (1942). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262488/ | 306 A.2d 101 (1973)
Pauline COLE et al.
v.
TOWN OF HARTFORD SCHOOL DISTRICT and Floyd Rising, Superintendent.
No. 195-72.
Supreme Court of Vermont, Windsor.
June 5, 1973.
*102 Guarino & Bean, White River Junction, for plaintiffs.
Black & Plante, White River Junction, for defendants.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
SMITH, Justice.
This is an appeal from a judgment of the Windsor County Court that the Board of School Directors of the Hartford School District had the authority to adopt and carry out a policy of requiring the retirement of a teacher, within its school system, at the end of the school year in which that teacher attains the age of sixty-five. The case was decided below, and comes here on an agreed statement of facts.
Plaintiffs Pauline Cole, Alice Smith and Genevieve M. Lander, in the school year 1971-72 were teachers in the Town of Hartford School District. Plaintiffs had been school teachers in said district for a period of years.
On March 8, 1971, the Hartford School Board adopted a retirement policy, which is an exhibit in the case and is found as a fact. This policy mandates retirement for teachers who attain their 65th birthday prior to September 1 of the school year, excepting in certain instances not here material. During the school year 1971-72, all three plaintiffs attained the age of 65 prior to September 1, 1972.
Each plaintiff was notified by the then Superintendent, Millard Harrison, that her contract was not to be renewed because of the policy. The court is asked to take judicial notice of the following statutes: 16 V.S.A. § 1937(a) (2) relating to retirement benefits, and 16 V.S.A. § 563 relating to power of a school board. Each plaintiff requested renewal of her contract after notification of the Board's decision not to renew, based on the mandatory retirement policy.
*103 The conclusions of law of the lower court are stated below:
"That the defendant School District, acting through its duly authorized and elected officers, has broad discretionary powers in hiring or dismissing employees, including teachers.
That under said broad powers, the defendant may make policies concerning employment as long as there is no abuse in the exercise of said powers, and as long as said policies are reasonable.
That the Vermont Statutes Annotated authorize the establishment of a teacher retirement system which provides for obtaining retirement benefits as early as the age of sixty-five if requested, and make retirement benefits mandatory at the age of seventy.
That the defendant school district acting through its duly authorized officers, absent any showing that the plaintiffs would lose retirement or teacher benefits, have not abused their discretion in promulgating a policy of retirement at age sixty-five.
That the plaintiffs herein have no guaranteed tenure as far as being employed as teachers in the defendant school system."
The appeal of the plaintiffs to this court is based upon claimed error in the conclusions of law, stated above, and in the judgment order dismissing the action on its merits and allowing the defendants to recover of the plaintiffs their cost of action.
The broad question with which we are presented is whether or not the Board of School Directors of the Hartford School District acted within the scope of their authority in adopting the retirement policy on March 8, 1971.
School boards are public officials who derive their power directly from the law. Buttolph v. Osborn, 119 Vt. 116, 119, 119 A.2d 686 (1955). The powers of school boards are set out in 16 V.S.A. § 563; Subsection (12) of such section provides:
"Upon prior recommendation by the superintendent employ and dismiss such persons as may be required to carry out the work of the school district."
We find no provision in the statute, 16 V. S.A. § 563 which authorizes a school board to set up its own retirement age limit policy for teachers with which it has contracted.
"Boards of education are created by statute and their jurisdiction is conferred only by statutory provision. Just as any other administrative board or body, they have such powers only as are clearly and expressly granted." Verberg v. Board of Education of City School Dist. of Cleveland, 135 Ohio St. 246, 20 N.E.2d 368, 370 (1939).
The State Teachers' Retirement System of Vermont is found in 16 V.S.A. chapter 55, with the provision that any person who becomes a teacher after July 1, 1947, shall become a member of the system as a condition of his employment, providing, however, for certain exceptions not pertinent here. The plaintiffs here are all members of such system. The "condition of his employment" is binding upon both the teachers and the School District, employee and employer.
Essential to an understanding of the question presented here are the provisions of the Act which allows teachers to retire voluntarily under the system at the time age sixty is attained. The Act also provides that any member in service who attains age seventy "shall" be retired at the end of the current school year. 16 V.S.A. § 1937. Such section provides retirement benefits, based, of course, on compensation and years of service.
The provision of the Act that allows teachers to retire at age sixty, by the use of the word "may" makes retirement at such age permissive on the part of the teacher. The provision of the Act that *104 provides that teachers "shall" retire at age seventy is mandatory and compels such retirement.
In Abshire et al. v. School Dist. No. 1 of Silver Bow County et al., 124 Mont. 244, 220 P.2d 1058 (1950), the Supreme Court of Montana had for its determination a question very similar to the one presented here. Montana has a Teachers' Retirement Act nearly identical to the State Teachers' Retirement System of Vermont, as set forth in 16 V.S.A. chapter 55. Under the Montana Act, retirement was voluntary at age sixty-five and compulsory at age seventy. The board of trustees of the defendant school district adopted a motion that compelled mandatory retirement for all teachers arriving at the age of sixty-five.
In holding that the defendant school district's action in reducing the age limit for retirement below that provided for in the legislative enactment was void, we quote with approval the following excerpt from the Montana decision:
"The legislature of this state has specifically established age seventy years for the compulsory retirement of otherwise competent, capable, duly licensed and qualified teachers in good standing and such utterance constitutes the public policy of the state [citation omitted] and the attempt of the defendant school district and its board of trustees to reduce such age limit so fixed and declared by legislative mandate is an attempt to create for and in themselves authority and discretion not granted by the legislature. . . and the proceedings and order assuming to compel the involuntary retirement of plaintiffs are contrary to the declared public policy of our state and therefore void and of no effect, for the board possesses no law-making power [citations omitted]." Id., 220 P.2d at 1061.
Also, see 78 C.J.S. Schools and School Districts § 207, at 1103.
We hold that the State Teachers' Retirement System of Vermont sets forth the declared public policy of this state relative to the retirement, both voluntary and compulsory, of qualified teachers in good standing, and that no power, either expressed or implied, is granted to local school districts and boards to alter such policy. Therefore, there was error on the part of the lower court to conclude that the defendant school district, acting through its duly authorized officers, in promulgating a policy of retirement at the age of sixty-five, had not abused their discretion, and in dismissing the action of the plaintiffs.
However, we are also confronted with the agreement of the parties that there is no legislative enactment which grants tenure to teachers in a local school district. While under 16 V.S.A. § 563(12) school boards have the power to dismiss persons required to carry out the work of the school district, using the word "dismiss" as to remove from employment, we believe that under the facts of the instant case there was no dismissal of the plaintiffs from employment. The facts of the case are clear that what was done by the school board was to refuse to enter into a new contract with the various plaintiff teachers, rather than to dismiss them from a contractual relationship which was in existence. In the words of the defendants, the teachers were retired, and not dismissed.
There is no dispute that the various plaintiffs did apply for renewal of their contracts with the school district, and that such renewal was refused by the school board on the mistaken belief the retirement policy, adopted by the board, was a bar to such contract renewal.
As the lower court found, the plaintiffs have made no showing that the action of the board in attempting to force their retirements resulted in any loss of retirement or teacher benefits, to any or all of them. It follows that this question is not presented to us by the pleadings or the facts in the case before us.
*105 The only relief requested from this Court by the plaintiffs is a declaration that the finding below which held that the Town of Hartford School District was within its powers in promulgating a policy of retirement at age sixty-five for teachers employed by said District, was in error. This we have done, and the dismissal of the cause below must be reversed.
It follows that the reason given to the plaintiffs by the Board of the Town of Hartford School District for its refusal to renew their teaching contracts with the District was not valid.
The plaintiffs should be given the right to have their applications for renewal of their teaching contracts with the Town of Hartford School District reconsidered by the Hartford Board of School Directors, without consideration by that Board of the invalid retirement policy promulgated by them. The plaintiffs have not asked, nor do we have the power under the pleadings, to order the Hartford Board of School Commissioners to grant them new teaching contracts.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262492/ | 18 Md. App. 353 (1973)
306 A.2d 564
KATHRYN A. WILLIAMS
v.
JIMMIE D. WILLIAMS.
No. 604, September Term, 1972.
Court of Special Appeals of Maryland.
Decided July 9, 1973.
*354 The cause was argued before CARTER, MENCHINE and SCANLAN, JJ.
Harvey B. Steinberg, with whom were Miller, Miller & Steinberg on the brief, for appellant.
Carl Lee Frederick for appellee.
CARTER, J., delivered the opinion of the Court.
The appellant, Kathryn A. Williams (wife) was denied a divorce from Jimmie D. Williams (husband) by the Circuit Court for Montgomery County. The decree, however, awarded the custody of the minor child of the parties (Jeffrey) to the wife, without making any provision for the child's support or visitation rights of the husband. It also awarded the wife counsel fees in the sum of $850, deposition costs of $102.21, and $1,000 for her private investigator. The husband was awarded a divorce a vinculo matrimonii under his cross bill and did not appeal. The wife's sole contention is that the decree is in error in failing to require the husband to contribute to the support of the minor child.
The supporting opinion points out that the evidence adduced established the parties were first married on December 21, 1952. The husband obtained an absolute divorce on July 2, 1956, and the parties remarried on October 2, 1967. Jeffrey was born on September 14, 1959, or during the period subsequent to the divorce and prior to the remarriage. In commenting upon this situation, the chancellor said in his opinion: "There was nothing in the record to specifically reflect that the child born out of wedlock [Jeffrey] has been legitimated." Later in the opinion he further stated: "It is the Court's opinion that since no *355 judicial determination of the paternity of Jeffrey Duane has been made no order for his support and maintenance should be decreed. * * *" The opinion urged that appropriate proceedings be instituted in behalf of the child under the provisions of Art. 16, § 66, the section on Paternity Proceedings (Art. 16, §§ 66A-66P), and Art. 93, § 1-208.
MINOR CHILD'S LEGITIMACY CONTROLS WHETHER SUPPORT MAY BE AWARDED IN THIS DIVORCE CASE OR MUST BE DETERMINED UNDER THE PATERNITY STATUTES
It is well settled that a father is under a common law duty to support his legitimate child during its minority. See Kriedo v. Kriedo, 159 Md. 229, 231, 150 A. 720; Blades v. Szatai, 151 Md. 644, 647, 135 A. 841. In speaking of the extent to which the common law rule has been changed in Maryland, the Court of Appeals said in DeGrange v. Kline, 254 Md. 240, 242, 254 A.2d 353:
"At common law, the father was usually entitled to custody and control of his minor children, which arose from his obligations to support, protect, and educate them. Hild v. Hild, 221 Md. 349, 157 A.2d 442; Ross v. Pick, 199 Md. 341, 86 A.2d 463. In Maryland, the father and mother are the joint natural custodians of their minor children and are equally charged with their support, education and welfare. Code (1967 Repl. Vol.), Article 72A, Section 1.[1] * * * " (emphasis added)
In 10 Am.Jur.2d Bastards § 67, it is stated:
"* * * [G]eneral statutes which, without specific reference to illegitimates, impose on a parent or other person the duty of supporting a minor child *356 are uniformly held to apply to legitimate children only * * *." (See cases cited)
In conformity with the uniform interpretation of child support statutes, we hold that Art. 72A, § 1 applies only to legitimate children. If, therefore, Jeffrey is found to be legitimate, an appropriate order for his support may be passed, under the general law relating to child support, as a part of the decree in this case.
Md. Code, Art. 16, §§ 66A-66P entitled "Paternity Proceedings" is patently designed to provide a special procedure for fixing the amount that the father of an illegitimate child is required to contribute to its support and to prescribe a remedy for the enforcement of any support order. See Quinan v. Schneider, 247 Md. 310, 313, 231 A.2d 37. In 10 Am.Jur.2d Bastards § 68, it is stated:
"These [paternity statutes] and other statutory provisions making the father of an illegitimate child responsible for its support and providing remedies for the enforcement of such responsibility are generally regarded as the exclusive basis of liability. * * *" (emphasis added)
We think it is clear from the provisions of the Paternity Act (§§ 66A-P of Art. 16) that it was the legislative intent to make it the exclusive basis in this State for enforcing the obligation of a putative father to support his illegitimate child. If, therefore, the child is not found to be legitimate, the matter of his support by the husband must be processed under Art. 16, §§ 66A-66P, and the chancellor would be without jurisdiction to determine the matter in the instant divorce case.
COMPLIANCE WITH ARTICLE 93, SECTION 1-208 LEGITIMIZES A CHILD FOR PURPOSES OF SUPPORT AND VISITATION RIGHTS AS WELL AS INHERITANCE
The pleadings in this case show that the husband repeatedly acknowledged in writing that he was the father *357 of Jeffrey. He did so in his answers to his wife's bill and supplemental bill as well as in his cross bill and supplemental cross bill. The record also shows that he verbally acknowledged his paternity in his testimony at the trial. All of these acknowledgments were made subsequent to the remarriage of the parties in October 1967.
Md. Code, Art. 93, § 1-208 provides:
"A person born to parents who have not participated in a marriage ceremony with each other shall be deemed to be the child of his mother. He shall be deemed to be the child of his father only if his father (1) has been judicially determined to be the father in a proceeding brought under Section 66E of Article 16, (2) has acknowledged himself, in writing, to be the father, (3) has openly and notoriously recognized the person to be his child, or (4) has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father."
In Thomas v. Solis, 263 Md. 536, 283 A.2d 777, the Court of Appeals held that a father of illegitimate children was entitled to a judicial declaration concerning his duty to support and his right of visitation under the provisions of Art. 93, § 1-208. The Court further held that the rights of a child legitimized under this statute were not confined to the right to inherit from its father. In so holding, the Court said at 542:
"This Court has recognized both in Dawson v. Eversberg, supra, [257 Md. 308, 262 A.2d 729] and Holloway v. Safe Deposit & Trust Co., 151 Md. 321, 335, 134 A. 497 (1926),[2] that a legitimation provision *358 contained in an inheritance statute is not limited in its scope and application to matters of inheritance only. There certainly should be little that is startling about such a concept, for the reason that no right or privilege in the history of the common law, or in statutory law, is accorded greater sanctity than the right of inheritance. If the law provides a means of legitimation for the purposes of inheritance, such a procedure should certainly be of sufficient legal validity to establish other rights, ofttimes inferior to that of inheritance, arising from the relationship existing between parent and legitimate issue.
"The trend of the courts throughout the country is to give a liberal interpretation to legitimation statutes or legislation which seeks to achieve that purpose, * * *."
At 544 Ibid., the Court further said:
"* * * He [the father] would therefore appear to have satisfied the second and third of the four provisions for legitimation provided in Article 93, Sec. 1-208, any one of which is sufficient to legitimatize the children." (emphasis added)
The undisputed evidence in this case, as heretofore related, if believed, would constitute full compliance with the requirements of Art. 93, § 1-208 (4). Under the liberal interpretations accorded to § 1-208 by the holdings in Thomas, supra, and Dawson, supra, a compliance with its provisions would legitimize Jeffrey for rights "inferior to that of inheritance."
We hold that under the rationale of the cases cited these "inferior rights" would clearly include the child's right to support from its father (husband) and the father's right of visitation. Therefore the chancellor's ruling that the evidence before him was legally insufficient to justify a finding that the child "has been legitimated" for these purposes was in error.
*359 JUDICIAL PREDETERMINATION OF PATERNITY NOT REQUIRED
We also think that the chancellor's ruling that a judicial predetermination of the paternity of Jeffrey was necessary in order for his support and maintenance to be decreed in this case, was likewise in error. There is no provision in subsection (4) of § 1-208 which requires that the paternity of a child be judicially predetermined. While subsection (1) of § 1-208 does require a judicial predetermination of whether the reputed father is in fact the natural father, this subsection applies only to proceedings under the Paternity Act (Art. 16, § 66E). Furthermore, there is a reason for the requirement of judicial predetermination under subsection (1) which does not exist in regard to subsection (4). In proceedings under the Paternity Act, the reputed father often times disputes his paternity and consequently, a judicial determination of the question then becomes necessary to establish the child's paternity before he can become entitled to be legitimated. No such reason, however, exists in regard to subsection (4), which is applicable only in situations where the father has voluntarily acknowledged his paternity after a marriage to the mother.
We therefore hold that a judicial predetermination of paternity was not required as a condition precedent to the application of Art. 93, § 1-208 (4), under the facts of this case.
CONCLUSION
There was no dispute concerning the material facts required to be established to legitimize Jeffrey in accordance with the provisions of Art. 93, § 1-208 (4). As heretofore mentioned, both parties agreed that after the birth of Jeffrey his mother and father were lawfully remarried and the father thereafter acknowledged his paternity. In these circumstances, we hold as a matter of law that Jeffrey was legitimated pursuant to the cited statute. We therefore further hold that the chancellor was in error in failing to require the husband to contribute support for Jeffrey, to fix the amount thereof, and to determine the husband's *360 corresponding rights of visitation.[3] The case will therefore be remanded for further proceedings to enable the chancellor to determine these matters.
Divorce and custody provisions of the decree affirmed.
Case remanded for further proceedings in accordance with this opinion.
Appellee to pay costs.
NOTES
[1] Md. Code, Art. 72A, § 1 provides in pertinent part:
"The father and mother are the joint natural guardians of heir minor child and are jointly and severally charged with its support, care, nurture, welfare and education. They shall have equal powers and duties, * * *." (emphasis added)
[2] In Dawson, supra, the Court held that where a child was legitimized under the provision of Art. 93, § 1-208, its rights and duties were not confined to inheriting from the father. In so holding, the Court pointed out that after compliance with § 1-208, the father was "free to seek" a judicial declaration as to whether the child would be required to contribute to his support in the event he became destitute in accordance with Md. Code, Art. 27, § 104. In Holloway, supra, the Court held that the rights of a child legitimized under Md. Code, Art. 46, § 6 (now repealed) were not confined to the right to inherit from its father. The provisions of Art. 93, § 1-208(4) are substantially the same as those of former Art. 46, § 6.
[3] The record shows that after the decree was filed, the wife promptly filed a motion to have the chancellor reconsider that portion of the decree which failed to require the husband to provide support for Jeffrey on the basis that his legitimacy had not been established. The husband answered setting forth that he did not contest the award of custody to the wife. He also stated that he was willing to contribute a reasonable amount toward the child's support, provided he was permitted visitation rights in accordance with a schedule set forth in his answer. The motion and answer were not acted upon by the trial court, however, because the wife filed an appeal to this Court in the interim, which divested the, chancellor of jurisdiction pending the appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262496/ | 25 Cal.Rptr.3d 164 (2005)
127 Cal.App.4th 116
Harvey BOELTS, Plaintiff and Respondent,
v.
CITY OF LAKE FOREST, et al., Defendants and Appellants.
No. G033549.
Court of Appeal, Fourth District, Division Three.
February 24, 2005.
Review Denied June 8, 2005.
*165 Law Offices of Kathryn Reimann and Kathryn Reimann, Monterey; Best Best & Kreiger, Scott C. Smith, Irvine, and Gene Tanaka, Riverside, for Defendants and Appellants.
Richards, Watson & Gershon and T. Peter Pierce, Los Angeles, for League of California Cities and Other Agencies as Amicus Curiae on behalf of Defendants and Appellants.
Palmieri, Tyler, Wiener, Wilhelm & Waldron, Michael H. Leifer and Ronald M. Cole, Irvine, for Plaintiffs and Respondents.
OPINION
SILLS, P.J.
I. SUMMARY
California's Community Redevelopment Law (Health & Saf.Code, § 33000 et seq.[1]) requires a finding that a project area is blighted in order to establish a redevelopment plan. (§ 33367, subd. (d)(1); e.g., Sweetwater Valley Civic Assn. v. City of National City (1976) 18 Cal.3d 270, 277, 133 Cal.Rptr. 859, 555 P.2d 1099 ["To allow redevelopment under the CRL, the proposed area must be blighted."]; Beach-Courchesne v. City of Diamond Bar (2000) 80 Cal.App.4th 388, 389, 95 Cal.Rptr.2d 265 ["A determination of blight is a prerequisite to invoking redevelopment."].)
*166 This required finding of blight is subject to judicial review in a validation action (Code Civ. Proc., § 860 et seq.), and if there is insufficient evidence that the area is indeed blighted, the court must issue a judgment invalidating the redevelopment plan. (E.g., Sweetwater Valley Civic Association v. City of National City, supra, 18 Cal.3d 270, 133 Cal.Rptr. 859, 555 P.2d 1099 [directing judgment be entered for writ of mandate setting aside redevelopment plan for golf course]; Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511, 98 Cal.Rptr.2d 334 [lack of evidence of blight for area, including many acres of forest and a golf course, required judgment invalidating plan]; Beach-Courchesne v. City of Diamond Bar, supra, 80 Cal.App.4th 388, 95 Cal.Rptr.2d 265 [lack of substantial evidence that affluent suburban area was blighted required judgment invalidating redevelopment plan].)
Of course, judicial review of a blight finding is what one would expect given that the purpose of redevelopment is the remedying of blight, and redevelopment invokes "extraordinary powers." As Justice Joan Dempsey Klein wrote for the court in Beach-Courchesne v. City of Diamond Bar, supra, 80 Cal.App.4th at page 407, 95 Cal.Rptr.2d 265, "The purpose of the CRL is to provide a means of remedying blight where it exists. The CRL is not simply a vehicle for cash-strapped municipalities to finance community improvements."
However, a validation challenge to an initial finding of blight is subject to some stringent deadlines. Section 33500 states that any action attacking the validity of a redevelopment plan cannot be made after the elapse of 60 days from the adoption of the ordinance adopting the plan.[2] A similar 60 day-deadline is found in the procedural statutes authorizing validation actions.[3]
Sixty days is, of course, a short statute of limitations by common legal standards.[4]*167 But there is a reason for it: to protect decisions in reliance on the plan. As the court noted in Plunkett v. City of Lakewood (1975) 44 Cal.App.3d 344, 347, 116 Cal.Rptr. 885 in a decision upholding a judgment throwing out a challenge to a redevelopment plan because the challenge came about two months too late the purpose of the truncated statute of limitations is to "promote prompt adjudication of such challenges before substantial public funds have been expended and before relocation of business and people have rendered remedial action ineffective." (Italics added.)
Redevelopment plans are also, however, subject to amendment. Article 12 of the Community Redevelopment Law (§§ 33450-33458) is devoted to the procedures governing such amendments. One of the statutes therein, section 33457.1, provides that when an amendment warrants it, the relevant local legislative body adopting the amendment must make the findings required to support an initial redevelopment plan, one of which is a finding of blight.[5]
And that brings us to the instant appeal, where we will uphold the trial judge's determination that, under the particular facts before him concerning an amendment to a redevelopment plan proposed 14 years after the initial plan was adopted, the requirement of a blight finding to support the amendment was indeed "warranted." We will further uphold his decision invalidating the amendment because of insufficient evidence of blight.
In doing so, however, we stress that our decision today is grounded in the particular facts before the trial judge, which, in sum, were these: The area was originally part of the unincorporated area of a county, and it was the county that adopted an original redevelopment plan focusing on traffic improvements. Basically the area in question was often in a state of gridlock and the county simply wanted to obtain money to widen area roads. As such, the original redevelopment plan did not include the power of eminent domain. Then, 14 years later and after the area had been incorporated into the city of Lake Forest, the city adopted an amendment to the 14-year-old redevelopment plan adding the power of eminent domain, and the focus of the city's amendment was no longer traffic improvement, but the upscale remodeling of two local shopping centers which were underproducing sales tax revenue.
In the process of upholding the trial judge's decision, we reject the city's argument that section 33368 precludes, a priori, judicial review of any blight findings made after a redevelopment plan is originally adopted, even if an amendment warrants such findings. While section 33368 gives preclusive effect to an original blight finding made in connection with the initial adoption of a redevelopment plan,[6] the *168 statute has within it language which contemplates judicial review of blight findings in timely filed validation proceedings attacking subsequent amendments to redevelopment plans pursuant to section 33457.1 when those subsequent amendments warrant blight findings.
Besides which, to adopt the city's expansive interpretation of section 33368 would read section 33457.1 right out of the statute books.
Our opinion should not, however, be read to establish an automatic rule to the effect that any time a power of eminent domain is added to a redevelopment plan, a new finding of blight is ipso facto "warranted." We need not, and do not, go that far in this decision.[7] It is enough to say that under the facts here, a new blight finding was certainly "warranted."
II. FACTS
In June 1988, the Orange County Board of Supervisors passed an ordinance adopting the "Neighborhood Development and Preservation Project" (Neighborhood Preservation Project), which was designed to redevelop 14 unincorporated subareas of Orange County. One of the unincorporated subareas within the Neighborhood Preservation Project was the El Toro Project Area.
The Neighborhood Preservation Project set forth the scope of the powers of the redevelopment agencies for the various subdivisions on both a general and a specific level. The general power granted was broad enough to allow the controlling agencies for each zone to address the unique needs of that area. But within each subdivision, there were specific restrictions on the general power, limiting the scope of the redevelopment.
Out of the 14 zones covered by the Neighborhood Preservation Project, the El Toro Project Area was the zone least in need of traditional redevelopment. The main idea for redevelopment was to obtain tax revenue with which to ease traffic congestion in the area's main arteries by expanding *169 street width.[8] Traffic volumes had, after all, nearly doubled at many intersections at El Toro Road in the previous 10 years (i.e., previous to 1988). The administrative record of those early proceedings shows the area suffered from few dilapidated or deteriorated structures.[9]
The primary motivation for including the El Toro Project Area within the Neighborhood Preservation Project was thus not to revitalize the private commercial centers along the El Toro corridor. Rather, the clear focus of the plan was to provide roadway and ancillary public infrastructure improvements. And because of that focus, the original plan did not include eminent domain power. In fact, the county's redevelopment agency, in a report to county supervisors, expressly disavowed the eminent domain power. The report said the agency had "determined that it can achieve the objectives of this project without the use of eminent domain."
In 1991, about three years after the Neighborhood Preservation Project was adopted, a subdivision of the greater El Toro Project Area, now known as Lake Forest, was incorporated. In 1998 jurisdiction over the El Toro Project Area was transferred to the city's redevelopment agency.
The early 1990's was a time of great development and growth for many southern Orange County territories surrounding Lake Forest, and due to rapid retail growth in neighboring cities, the city lost much of its regional sales tax revenue to businesses in bordering towns. In fact, retail sales in the jurisdiction declined by some 30 percent during the period, being lost to shopping centers in neighboring towns. As noted by the trial judge, it was this decline in sales and a desire to "reclaim its share of the regional sales tax pie" that prompted the city to try to "revitaliz[e]" the El Toro Project Area.
Thus, the city devised and adopted the Amended and Revised Redevelopment Plan (Amended Plan) on May 21, 2002 by passing Ordinance No. 125. The focus of the Amended Plan was on revitalizing "commercial and industrial properties while improving and maintaining the residential portion of the Project Area." This plan would be quite costly and would affect a large number of properties in the surrounding area. Perhaps realizing that it could have some trouble obtaining consent from various affected property owners, the city included the power of eminent domain in the Amended Plan.[10]
*170 The basic reason for the amendment was to condemn two of the major shopping centers in the El Toro Project Area, the Saddleback Valley Plaza (The Plaza) and K-Mart shopping center (The Center) because they were underproducing sales tax revenue. Neither center had been labeled (or could be rationally labeled) "deteriorated or dilapidated" in the Neighborhood Preservation Project, though one could easily imagine either center improved with some upscale remodeling, or maybe some South Coast Plaza style causeways. The city, however, concluded it would be impossible for the individual owners of the properties to bear the financial burden of remodeling the centers.
Within less than three weeks (closer to two) of the city's passage of Ordinance No. 125 in May 2002, plaintiff Harvey Boelts, who has an interest in one of the centers, filed a validation action to review the validity of the amendment. (See Code Civ. Proc., § 860 et seq.) Boelts complained that six of the findings the city made to justify Ordinance No. 125 including the finding that the El Toro Project Area was physically and economically blighted were not supported by substantial evidence. Boelts sought equitable relief in the form of a prohibitory injunction blocking the city from expending any further money on the project until the Amended Plan was properly supported by findings required under the Community Redevelopment Law.
The trial court ruled that the record lacked substantial evidence to support the challenged blight finding. The court specifically ruled that the addition of eminent domain power to the Amended Plan was a material and substantial change to the original Neighborhood Preservation Project, warranting new findings of blight. The court said that the Amended Plan "changes the Plan from encouraging, facilitating, and assisting property owners with improving their own property, to allowing the Agency to take private property from its owner to be conveyed to a third party developer." As a result of the newly added eminent domain power, and because of the amplification of the revised project, the trial court ruled that an additional finding of blight needed to be made (pursuant to sections 33457.1 and 33367, quoted in pertinent part in footnote 5 above).
The trial court further found there had been significant changes in the environmental and economic climates in the El Toro Project Area in the intervening 14 years. The court opined that the particular blight findings from the original Neighborhood Preservation Project were made under dramatically different circumstances and were insufficient to support the amendment. Finding the evidence to support the Amended Plan insufficient, the court issued an injunction ordering the city to "refrain from expending any funds on implementation of the Amended and Restated Redevelopment plan until Amended/Restated Plan is lawfully adopted." It is from this order that the city appeals.[11]
*171 III. DISCUSSION
A. Section 33368 Does Not Preclude Timely Challenges to New Blight Findings When Those Finding Are Warranted by Section 33457.1
1. As Shown by the Internal Structure of the Redevelopment Law
The city's centerpiece argument is that, under section 33368, once an initial finding of blight is made and the time to challenge that blight finding has elapsed (60 days, as specified in section 33500), blight is conclusively established regardless of whether the plan is subsequently amended and regardless of whether there is substantial evidence to support a blight finding warranted by that amendment.
We have concluded that the city's argument is based on a misreading of section 33368. The city's mistake is to read section 33368 in total isolation, instead of in the whole context of the Community Redevelopment Law. (See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60, 124 Cal.Rptr.2d 507, 52 P.3d 685 [noting that legislative intent behind particular section in Code of Civil Procedure statute had to be "`"gleaned from the statute as a whole"'"]; People v. Acosta (2002) 29 Cal.4th 105, 112, 124 Cal.Rptr.2d 435, 52 P.3d 624 ["`We do not, however, consider the statutory language "in isolation". ... Rather, we look to "the entire substance of the statute ... in order to determine the scope and purpose of the provision."'"]; People v. Murphy (2001) 25 Cal.4th 136, 142, 105 Cal.Rptr.2d 387, 19 P.3d 1129 ["We must harmonize `the various parts of a statutory enactment ... by considering the particular clause or section in the context of the statutory framework as a whole.'"].)
In context, section 33368 is part of the general procedures for the adoption of an initial redevelopment plan by a local legislative body. (See § 33360 et seq.) Immediately preceding the statute is section 33367, and subdivision (d) of section 33367 requires a number of various findings, including that the "project area is a blighted area." The "conclusive" presumption language of section 33368 is also the culmination of a series of preceding statutes "replete with preliminary requirements for notice and public hearings," in which the taxpayer is given "ample time" to "prepare legal challenges to the actions of redevelopment agencies." (See Plunkett v. City of Lakewood, supra, 44 Cal.App.3d at p. 347, 116 Cal.Rptr. 885.)
A redevelopment plan can last as long as 40 years. (§ 33333.6, subd. (a).) Obviously many things can happen in 40 years that might necessitate some change in a plan. (See § 33450 [providing in part, "If at any time after the adoption of a redevelopment plan for a project area by the legislative body, it becomes necessary or desirable to amend or modify such plan, the legislative body may by ordinance amend such plan upon the recommendation of the agency."].)
And that raises the need for amendments. Amendments have their own article, article 12, in the Community Redevelopment Law, of which section 33368 is not a part. In many respects the process of amending a redevelopment plan in article 12 parallels the process of adopting an original one as specified in article 5 (procedures for adopting a redevelopment plan). Thus section 33450 not only confers basic *172 authority to amend redevelopment plans, but explicitly makes them subject to referenda. (See § 33450 ["Except as otherwise provided in Section 33378, the ordinance shall be subject to referendum as prescribed by law for the ordinances of the legislative body."].) And, as with original plans, the statutes governing amendments are "replete with preliminary requirements for notice and public hearings" (see §§ 33451, 33452, 33454; see also §§ 33455, 33458) plus specific notice to local planning commissions (§§ 33453, 33455).
Following these notice and hearing statutes comes section 33457.1.[12] In section 33457.1's requirement that the amending ordinance contain certain findings, it functions as the amending analog to section 33367. Indeed, section 33457.1 appears to be the only statute within article 12 (governing amendments to redevelopment plans) that, like section 33367 in the context of initial redevelopment plans, imposes substantive requirements. Unless we blinked, all the other statutes in article 12 are procedural.[13]
Section 33457.1 is the soul of brevity, because all the heavy lifting is done by incorporation by reference, specifically to section 33367, the section which, we have seen, imposes substantive requirements on initial redevelopment plans, including the need for a finding of blight. The key phrase for our purposes, though, is the introductory clause, which makes the impositions of the section contingent on being "warranted." ("To the extent warranted by a proposed amendment to a redevelopment plan, (1) the ordinance ... shall contain the findings required by Section 33367.")
The city offers no refutation for the idea, unmistakable in the structure of section 33457.1, that, given the word "warranted," there will indeed be at least some circumstances where a blight finding under section 33457.1 (incorporating by reference section 33367) will indeed be "warranted" by a proposed amendment.[14]
*173 The city's model of the redevelopment statutes seems to be that once a blight finding is made pursuant to section 33367, the fact of blight is, given the "conclusive" presumption of section 33368, etched in stone for the duration of the redevelopment plan. Or, as the city metaphorically describes its position in its reply brief, there is no such thing as a "`disappearing' conclusive presumption." (See reply brief at p. 26.)
The core problem with the city's expansive reading of section 33368 is that it elbows section 33457.1 right out of the statute books.
Courts do not adopt interpretations of statutes which render some sections surplus or null. (E.g., Elsner v. Uveges (2004) 34 Cal.4th 915, 931, 22 Cal.Rptr.3d 530, 102 P.3d 915 ["We will avoid constructions that render parts of a statute surplusage."]; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22, 56 Cal.Rptr.2d 706, 923 P.2d 1 ["Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage."].)
For example, in California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633-634, 59 Cal.Rptr.2d 671, 927 P.2d 1175, our high court considered the interpretation of a particular Education Code section involving vacancies for athletic coach jobs, which essentially said that such vacancies should "first be made available to teachers presently employed by the district." The school district, however, was intent on filling an assistant basketball coach vacancy with someone who did not have a teaching credential. So the district took the position that the statute merely required it to advertise openings for coach positions to teachers currently employed in the district and allow credentialed teachers to apply for such positions, but not give such teachers any other advantages in the employment process. (Id. at p. 632, 59 Cal.Rptr.2d 671, 927 P.2d 1175.)
Our high court rejected such a parsimonious reading of the statute, and one of the reasons it did was because the district's interpretation rendered the statute a "nullity." The statute afforded teachers "no greater rights than they would have in the absence of the statute." (Id. at p. 634, 59 Cal.Rptr.2d 671, 927 P.2d 1175.)
So it is in the case before us. The city's reading of section 33457.1 renders the requirement of a blight finding, at least when such a finding is "warranted," mere surplusage. As in California Teachers Assn., the result (insofar as warranted blight findings are concerned) is no different "in the absence of the statute."
2. As Shown by the Text of Section 33368
In specific statutory (as distinct from structural) terms, the city's proffered reading reads the word "warranted" out of the statute. If, under section 33368, blight findings are "conclusive" for the entire duration of a redevelopment plan, a requirement of subsequent blight findings pursuant to a proposed amendment (as authorized by section 33457.1, if warranted) becomes meaningless. The Legislature could repeal section 33457.1 and it would make no difference.[15] The city is, in essence, *174 saying that under no circumstances are meaningful blight findings (that is, blight findings that might have a legal consequence on an amendment to a redevelopment plan) ever warranted.
Section 33368 was first enacted in 1963 (see Stats.1963, ch. 1812, p. 3694). Section 33457.1 was first enacted in 1977. (See Stats.1977 ch. 797, p. 2446, § 12.) To the degree that, for sake of argument, there is an irreconcilable conflict between the two statutes, it is the earlier (§ 33368) that must give way to the later (§ 33457.1). (See People v. Franklin (1997) 57 Cal.App.4th 68, 74, 66 Cal.Rptr.2d 742 ["where two statutes addressing the same subject are irreconcilable, the later in time will prevail over the earlier"]; Los Angeles Police Protective League v. City of Los Angeles (1994) 27 Cal.App.4th 168, 178, 32 Cal.Rptr.2d 574 ["When two acts governing the same subject matter cannot be reconciled, the later in time will prevail over the earlier."].) Thus if section 33368 really does, as the city propounds, establish an etched-in-stone-until-the-end-of-the-plan rule, it must give way to the extent that, under section 33457.1 when warranted, substantive blight findings are required for an amendment.
However, the two statutes are readily reconciled simply by realizing that by its own terms section 33368 does not apply to timely validation actions (that is, validation actions brought within the time limits of section 33500), and that such timely validation actions can be brought after a redevelopment plan has been amended. When one reads the second paragraph of section 33368 and its specific reference to section 33500,[16] together with the fact that section 33500 explicitly allows for (timely) validation actions to amendments to redevelopment plans and also considers itself declarative of existing law,[17] the conclusion become inescapable that section 33368 by its own terms does not reach validation actions attacking amendments to redevelopment plans based on blight findings that were "warranted" pursuant to section 33457.1.
3. As Shown by Common Sense and Common Law
The picture of the law that thus emerges is exactly what one would expect if one were sitting down and thinking out the problem of redevelopment and the need to make amendments to redevelopment plans on a clean slate. The Legislature has recognized that a lot can happen in 40 years and has made allowance for amendments to redevelopment plans which, when warranted, require new findings of blight. To be true, original blight findings remain conclusive under section 33368 until a timely validation action brought pursuant to an amendment (if such findings are warranted under section 33457.1), but, by *175 the very terms of section 33368, only until then.
That internal limitation makes particular sense when one realizes, as the Plunkett court did, the purpose for the short statute of limitations in section 33500, after which section 33368 makes the blight finding conclusive. That purpose, as noted above, is to prevent needless public expenditure or private relocation in reliance on a redevelopment plan. (See Plunkett v. City of Lakewood, supra, 44 Cal.App.3d at p. 347, 116 Cal.Rptr. 885.) An amendment to such a redevelopment plan, however, may implicate new public expenditure or, as in the case before us, private relocation not contemplated when the plan was originally developed. Thus it would make sense to build in the possibility of validation actions to amendments.
By the same token, the statutory scheme accords with elementary fair play, as shown by Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 150 Cal.Rptr. 621. Herrold is a common law repudiation of the idea that redevelopment agencies can sandbag adversely interested parties by sneaking in a finding (in that case a public use finding) supporting an original redevelopment plan when no one has an interest in challenging it, and then, years later, claiming that the time limits of section 33500 insulate that finding from judicial review.
In Herrold, a redevelopment agency filed an eminent domain complaint to acquire an owner's property, which the owner thought was a mere attempt to transfer his property to a private company located across the street. So, in the eminent domain proceeding the owner served written interrogatories asking the redevelopment agency its intended use of the property and whether the agency had entered into an agreement to sell his property to the private company across the street. The agency refused to answer on the theory that the owner was foreclosed from questioning the validity of its proposed public use because the 60-day time limits under section 33500 had long elapsed. (See Redevelopment Agency v. Herrold, supra, 86 Cal.App.3d at p. 1027, 150 Cal.Rptr. 621.) While the court doesn't say so, it appears from the opinion that the original redevelopment plan had been adopted eight years prior to the condemnation proceeding. (See id. at p. 1029, 150 Cal.Rptr. 621.) The trial court denied the owner's motion to compel further interrogatories based on the lapsed time limits. (See id. at p. 1028, 150 Cal.Rptr. 621.)
The appellate court was particularly influenced by the sandbagging inherent in the use of section 33500 to preclude the owner's challenge, particularly given a later deviation from the original redevelopment plan. Here is the relevant passage:
"The 60-day limitations period in section 33500 does not apply to the type of challenge appellant is making here because he is not attacking the legality of the redevelopment plan as originally adopted, but is questioning the implementation of the plan with respect to his property. Appellant had no reason to object when the plan was adopted. It was not apparent at that time that the agency might be deviating from its resolved purpose and planning an illegal use for the property (the sale to [the company across the street]) until eight years after the plan's adoption. Section 33500 cannot be used to immunize an agency which adopts a redevelopment plan legal on its face, then after the 60-day period has elapsed deviates from its resolved purpose and seeks to violate the public use requirement of California Constitution article I, section 14, and the 14th Amendment of the United States Constitution. Section 33500 applies only to attacks on the redevelopment plan as adopted, and *176 not to actions alleging illegal implementation of the plan." (Redevelopment Agency v. Herrold, supra, 86 Cal.App.3d at p. 1029, 150 Cal.Rptr. 621, italics added.)
To be sure, Herrold is not totally on point; the owner's challenge was to a public use finding that is explicitly required by our state Constitution, while here the challenge is to a blight finding that might or might not be required by the state or federal Constitution.[18] Even so, the underlying common law abhorrence of bait and switch in the redevelopment context permeated the Herrold court's decision.
Here, as in Herrold, for example, property owners who might have been alerted to the need to challenge the original blight findings may have been lulled into acquiescence because those findings only supported a county's redevelopment plan focused on traffic and without the power of eminent domain: "Don't worry about our proposed blight finding, it's only a technicality to get roads widened" was followed by, 14 years later, "You had your chance to challenge our blight finding 14 years ago, now you're stuck with it even though we want to use eminent domain to take away your property." It might not be worth the effort to fight a blight finding when all it means is that some congested roads are widened; it certainly is worth the effort if it means the loss of one's property.
Functionally, the public use issue in Herrold is equal to the blight issue here. Thus, as in Herrold, Boelt's challenge in the proceeding before us is not to the "legality" of the county's plan "as originally adopted" but to the "legality" of a city's plan that deviates in its "resolved purpose" (14 years earlier the purpose was the elimination of traffic congestion) and in its powers (14 years earlier there was no power of eminent domain) from the original plan. Such facts well illustrate why the Legislature would build into the statutory structure of redevelopment a mechanism by which an affected property owner could timely challenge a blight finding if warranted by an amendment. To read section 33368 (in conjunction with the short time limits prescribed in section 33500) to preclude any challenge to a blight finding after an original plan is adopted is a recipe for abuse of the power of redevelopment.
B. Judicially Reviewable Blight Findings Pursuant to Section 33457.1 Were Warranted in This Case
Having staked its case on the theory of an absolute presumption of blight under section 33368 the idea of "once established, always established" it is not surprising that the city goes a little lite on the topic of whether judicially reviewable blight findings here were warranted. It makes a novel argument that blight findings were "politically" but not "legally" warranted (see Appellant's opening brief at pp. 30-32),[19] but that argument is only a permutation of the idea that blight once found is, under section 33368, forever found (or at least until the termination of the plan).
Suffice to say that, to track the language of section 33457.1 here, "the findings required by Section 33367" were indeed warranted. In that regard we will not attempt to improve on trial Judge Jameson's thorough and thoughtful statement *177 of decision, which we will now adopt as our own statement of reasons on the point:
"The Court finds that the Challenged Findings were warranted by the adoption of the Amended and Restated Plan. In its ordinance, the Lake Forest City Council expressly found that the Challenged Findings were warranted pursuant to Section 33457.1 ... Even absent the Defendants' City's own legislative determination that the blight (and other) findings were warranted,[20] the Court nevertheless finds that the Challenged findings were warranted. Since the Challenged Findings were warranted, Defendants are required to support them with substantial evidence. [¶] Neither the record nor the Community Redevelopment Law supports Defendants' assertions that the findings made by the City were unnecessary. Adding the extraordinary power of eminent domain to the redevelopment plan by amendment was material and significant. The record demonstrates that as originally adopted, the [Neighborhood Preservation Project]'s primary focus for the El Toro area was on infrastructure improvements. (See, e.g. AR 1092-95.) This is because the El Toro area was relatively well maintained and, although it needed little in the way of building refurbishment, it had streets with congestion. With the exclusion of heavy traffic, the El Toro Project Area fared substantially better than any of the other remaining 13 redevelopment sub-areas that comprised the [Neighborhood Preservation Project]. In the entire El Toro Redevelopment Project Area, there was only one `dilapidated' structure and eight `deteriorated' structures. (AR 1046.) The Record demonstrates that the primary motivation for including the El Toro Project Area within the [Neighborhood Preservation Project] was not to revitalize the private commercial centers along the El Toro corridor, but to provide roadway and ancillary public infrastructure improvements.... [¶] Defendants have also characterized the Amendment as a `minor' amendment which `only' adds the power of eminent domain. The power of eminent domain is extraordinary. Adding the power is a material change to the Plan. It changes the Plan from encouraging, facilitating, and assisting property owners with improving their own property, to allowing the Agency to take private property from its owner to be conveyed to a third party developer."
We need only reiterate at this point that the particular circumstances in this case are so strong that we need not reach the issue of whether the addition of eminent domain to a redevelopment plan, by itself, would "warrant" new blight findings under section 33457.1. As the trial judge noted (and it cannot be denied), the power of eminent domain is indeed an extraordinary one certainly extraordinary enough to be the subject of a provision in the Bill of Rights. At least in combination with a "deviation" (to use the Herrold court's phrase) from the original plan that never expressly contemplated the need for eminent domain, was focused on traffic and was not concerned with the makeover of commercial buildings to marginally increase sales tax revenue, blight findings were certainly warranted in this case.
C. The Trial Court Correctly Concluded That the Evidence of Blight Was In-sufficient to Support Blight Findings Pursuant to Section 33457.1
The city candidly acknowledges that it did not attempt to justify the amendment *178 adding eminent domain and reshifting the focus of the El Toro redevelopment plan from traffic to shopping center improvement based on any condition of blight present in 2002. And in fact the trial judge's statement of decision pretty much demolishes the idea that the El Toro Project Area suffers any blight at all. As the trial judge wrote, "Even if the record did contain some evidence of physical blight and/or economic blight, which it did not, the record nonetheless fails to provide substantial evidence of blight because the record does not contain substantial evidence that any of the alleged blighting conditions are so prevalent and so substantial that it causes a reduction of, or lack of, proper utilization of the area to such an extent that it constitutes a serious physical and economic burden on the community which cannot reasonably be expected to be reversed or alleviated by private enterprise or governmental action, or both without redevelopment."
Judge Jameson also noted that the city's statements about the alleged blight of the area were "conclusory," and recognized that "conclusory statements regarding blight ... are inadequate to provide the substantial evidence necessary to support a blight finding," a point that is, of course, unassailable. (See Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency, supra, 82 Cal.App.4th at p. 557, 98 Cal.Rptr.2d 334 ["The language cited by the trial court from the Final Report is the conclusory type of `jargon' courts have criticized as making `no attempt at any specificity; the reasons appear to have emerged from the consultants' word processor without any thought as to why any particular parcel ... is blighted."]; Beach-Courchesne v. City of Diamond Bar, supra, 80 Cal.App.4th at p. 388, 95 Cal.Rptr.2d 265 ["`The city merely cites certain all-purpose conclusory statements from the consultants' report which might apply to any property anywhere."'].)
Having had the benefit of the trial court's criticism, the city has a second chance to point to blight in this appeal. Here is its best shot:
(1) At one of the shopping centers in the area, there is "antiquated design and numerous vacancies."
(2) The same shopping center had 23 commercial spaces vacant.
(3) The same center showed "signs of deterioration and deferred maintenance."
(4) Conditions (1) through (3) are the result of "fractured ownership and a land lease without sufficient time remaining to economically fund revitalization or redevelopment of the center."
(5) Another shopping center, which once had a K-Mart, had not had an anchor tenant for more than eight years.
(6) This other shopping center is "in need of site reconfiguration to meet present retailing demands, and the need for an improved interconnection between that center and the adjoining center."
And that is it, at least as the city attempts to make the case for blight in its brief.[21] It is a showing that self-evidently *179 pales into insignificance besides the showing that was itself held inadequate in the Friends of Mammoth case. There, to take just one example, a building survey determined that approximately 29 percent of parcels in the project area "were affected by buildings suffering from deterioration and dilapidation." (Friends of Mammoth, supra, 82 Cal.App.4th at p. 551, 98 Cal.Rptr.2d 334.) Some of that "deterioration and dilapidation" was supported in Friends of Mammoth by a definition that included peeling paint, dry rot, deteriorated roofing, but there was an absence of evidence of lack of safety or unhealthiness for human occupancy. (See id. at pp. 551-552, 98 Cal.Rptr.2d 334.) The present case involves fewer allegedly "deteriorated or dilapidated" buildings in the project area than one can count on two hands (and four of those buildings were merely single family homes), and the city makes zero attempt to shore up the (conclusory) assertions of dilapidation or deterioration as to even those nine buildings with any substantive content. It certainly makes no attempt to show any safety or health problems for those buildings. Nor does the city cite any evidence of health code violations, structural defects, or even declines in property values.[22]
IV. DISPOSITION
The judgment invalidating the amendment to the redevelopment plan adopted on May 21, 2002, is affirmed. In the interests of justice the respondent will recover his costs on appeal.
WE CONCUR: ARONSON and IKOLA, JJ.
NOTES
[1] All statutory references in this opinion will be to the Health and Safety Code unless otherwise designated.
[2] Section 33500 provides in its entirety: "No action attacking or otherwise questioning the validity of any redevelopment plan or amendment to a redevelopment plan, or the adoption or approval of such plan, or amendment, or any of the findings or determinations of the agency or legislative body in connection with such plan shall be brought prior to the adoption of the redevelopment plan nor at any time after the elapse of 60 days from and after the date of adoption of the ordinance adopting or amending the plan. [¶] The amendments made to this section at the 1977-78 Regular Session of the Legislature do not represent a change in, but are declaratory of, existing law."
[3] The structure of these statutes is, however, a little convoluted because they begin with the idea, in section 860 of the Code of Civil Procedure, that a public agency has the right to bring such a challenge within 60 days, but then, a few sections later, in section 863, allow private parties the same right.
First, here is the current text of section of section 860 of the Code of Civil Procedure:
"A public agency may upon the existence of any matter which under any other law is authorized to be determined pursuant to this chapter, and for 60 days thereafter, bring an action in the superior court of the county in which the principal office of the public agency is located to determine the validity of such matter. The action shall be in the nature of a proceeding in rem."
Next we quote the pertinent parts of section 863 of the Code of Civil Procedure: "If no proceedings have been brought by the public agency pursuant to this chapter, any interested person may bring an action within the time and in the court specified by Section 860 to determine the validity of such matter."
[4] Sometimes the truncation of statutes of limitations can itself be significant, as, for example, in bearing on whether contractual arbitration provisions are enforceable. (E.g., Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 107, 118, 12 Cal.Rptr.3d 663 [contractually shortened statute of limitations made agreement to arbitrate employee civil rights claims unconscionable].)
[5] Here is the full text of section 33457.1: "To the extent warranted by a proposed amendment to a redevelopment plan, (1) the ordinance adopting an amendment to a redevelopment plan shall contain the findings required by Section 33367 and (2) the reports and information required by Section 33352 shall be prepared and made available to the public prior to the hearing on such amendment."
Section 33367 provides, in pertinent part:
"The ordinance shall contain all of the following: [¶] ... (d) The findings and determinations of the legislative body that: [¶] (1) The project area is a blighted area, the redevelopment of which is necessary to effectuate the public purposes declared in this part."
[6] Here is the entirety of the text of section 33368: "The decision of the legislative body shall be final and conclusive, and it shall thereafter be conclusively presumed that the project area is a blighted area as defined by Section 33031 and that all prior proceedings have been duly and regularly taken. [¶] This section shall not apply in any action questioning the validity of any redevelopment plan, or the adoption or approval of a redevelopment plan, or any of the findings or determinations of the agency or the legislative body in connection with a redevelopment plan brought pursuant to Section 33501 within the time limits prescribed by Section 33500."
[7] Certain federal authorities could arguably be read for the proposition that the constitutional public use requirement means that there must be a current finding of blight anytime the eminent domain power is added to a redevelopment plan, because without a finding of blight, redevelopment, when it involves the power of eminent domain, devolves into nothing more than taking private property for a purely private use, i.e., simply taking it from one landowner and giving to it another. (See Cottonwood Christian Center v. Cypress Redevelopment Agency (C.D.Cal.2002) 218 F.Supp.2d 1203, 1228-1229; 99 Cents Only Stores v. Lancaster Redevelopment Agency (C.D.Cal.2001) 237 F.Supp.2d 1123; see also Tepper, Federal Court Limitations on Redevelopment Agencies (March 2004) 27 L.A. Law. 12; accord, Hawaii Housing Auth. v. Midkiff (1984) 467 U.S. 229, 245, 104 S.Ct. 2321, 81 L.Ed.2d 186 ["A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void."]; Armendariz v. Penman (9th Cir.1996, en banc) 75 F.3d 1311, 1321 [no judicial deference afforded where public use finding is demonstrably pretextual]; Cottonwood Christian Center, supra, 218 F.Supp.2d at pp. 1229-1230 ["Defendants' planning efforts here appear to consist of finding a potential landowner for property that they did not own, and then designing a development plan around that new user."].) Because we have determined that a new finding of blight was indeed warranted by the particular facts in this case and that finding was statutorily authorized, we are spared the necessity of addressing these federal authorities, or any arguable constitutional implications from the facts of the case before us.
[8] The original report to the county supervisors said: "El Toro Road is characterized by enormous traffic volumes and chronic congestion. Traffic volumes at many intersections at El Toro Road have nearly doubled in just the last 10 years. [¶].... Although this list of needed improvements to El Toro's circulation system is absolutely essential to adequate[ly] serve the existing demands placed on these arterials, there are no adequate funds presently available in the county to pay for these public improvements. It is here where the Orange County Development Agency can utilize the provisions of California Health and Safety Code § 33670 to provide the mechanism for financing these public improvement projects." (Emphasis added.)
Section 33670 allows for redevelopment agencies to gain a share of property tax revenues.
[9] The report to the county supervisors noted that there was only one "dilapidated" and eight "deteriorated" structures in the entire El Toro Project Area, and of the eight "deteriorated" structures, half (four) were single family dwellings.
[10] The city also included a negative declaration, instead of requiring a formal environmental impact report. The trial court concluded that the negative declaration was proper under the California Environmental Quality Act (CEQA). Boelts filed a cross-appeal challenging that determination, but later requested dismissal of that cross-appeal, which request we now grant. Accordingly, this opinion in no way addresses the negative declaration or CEQA issues.
[11] The day before oral argument was to be held, Boelts withdrew his opposition to the appeal and abandoned his cross-appeal as to CEQA issues (see footnote 10 above). However, there is no indication of a settlement of the case, or a stipulation by the parties to reverse the trial judgment (cf. Code Civ. Proc., § 128, subd. (a)(8) [standards for accepting stipulated reversals of trial court judgments]). Despite his withdrawal, it isn't, of course, as if respondent Boelts had failed to file a brief at all we have the benefit of thorough and excellent briefing from all sides. Even so, the legal dynamics are the same as if Boelts simply had failed to file a respondent's brief. This court is still obligated to determine whether the appellanthere the cityhas shown reversible error. (See Cal. Rules of Court, rule 17(a)(2); In re Marriage of Davies (1983) 143 Cal.App.3d 851, 854, 192 Cal.Rptr. 212 ["the respondent's failure to file does not require an automatic reversal"]; In re Marriage of Bukaty (1986) 180 Cal.App.3d 143, 147, 225 Cal.Rptr. 492.)
[12] However, the last statute in the article, 33458, is also a hearing provision, to wit, an alternative public hearing provision.
[13] Section 33450 speaks of it being "necessary or desirable" to amend a redevelopment plan, but doesn't otherwise shed any light on the context of "necessary or desirable," and in any event those words are probably so elastic as not to impose any substantive requirements. Sections 33451 and 33452 are strictly devoted to notice and hearings, section 33453 to notice to local planning commissions, section 33454 is a public hearing requirement, section 33455 is an elaboration on local planning commission involvement and the need for public hearings, section 33456 allows recordation, section 33457 requires transmission of the amendment to tax officials, and section 33458 provides for yet more public hearings. Only section 33457.1, with its express need to "contain findings required by Section 33367," if warranted, imposes substantive requirements on the contents of an amendment.
[14] At one point in the city's brief it asserts that "Under no circumstances do the statutes of the Community Redevelopment Law require a community to re-establish blight to the levels suitable for original plan adoption for an existing redevelopment project area." There is no authority offered for this statement, though there is a footnote qualifying it for cases (see §§ 33031, 33354.6) when new territory is added. (Appellant's opening brief at p. 19.) No attempt is made to confront section 33457.1 either. To the degree that the statement relies on the phrase "suitable for original plan adoption" as its escape route from the plain operation of section 33457.1, it is simply contrary to the plain text of section 33457.1, which says "findings required by Section 33367," not "merely in the same ballpark as the findings required by Section 33367." To the degree the phrase "suitable for original plan adoption" is simply another way of reiterating the city's position that original blight findings are conclusive no matter what, we deal with that in the next several paragraphs in the text.
[15] There is a remarkable section of the city's opening brief which attempts to undertake the point that the city felt itself politically constrained by section 33457.1 to make blight findings in 2002, though it did not consider itself legally bound to do so. That's the same kind of argument that our high court rejected in California Teachers Assn., i.e., one which reduces a statute, obviously intended by the Legislature to create substantive rights, to symbolic pantomime.
[16] "This section shall not apply in any action questioning the validity of any redevelopment plan or the adoption or approval of a redevelopment plan, or any of the findings or determinations of the agency or the legislative body in connection with a redevelopment plan brought pursuant to Section 33501 within the time limits prescribed by Section 33500."
[17] "No action attacking or otherwise questioning the validity of any redevelopment ... amendment to a redevelopment plan, or the adoption or approval of such ... amendment, or any of the findings or determinations of the agency or the legislative body in connection with such plan shall be brought prior to the adoption of the redevelopment plan at any time after the elapse of 60 days from and after the date of adoption of the ordinance ... amending the plan. [¶] The amendments made to this section at the 1977-78 Regular Session of the Legislature do not represent a change in, but are declaratory of, existing law."
[18] See footnote 7, above.
[19] It has been the traditional practice of the federal courts to make specific references to the briefs and the record in their opinions; it is much rarer in our state's own reporters. However, briefs are now available on-line, and there is at least some merit to the idea that scholars should be able to compare what the brief says with what the court says the brief says.
[20] As one might expect, much of the city's briefing is directed at the proposition that it should not be stuck, estoppel-like, with its own determination that blight findings were warranted. Since we agree with the trial court that blight findings were objectively warranted regardless of what the city itself determined, we do not reach the issue.
[21] See Appellant's opening brief at pp. 36-38. The preceding portion of the city's brief (at pp. 34-35) offers no specific evidence, but speaks only generally in terms of the following (and only the following): "deterioration and dilapidation of commercial centers," "abnormally high vacancy rates," "fractured property ownership" "defective and antiquated design of the physical properties, including assessibility deficiencies" and "inadequate public improvements." Then the brief quotes factors that can "cause blight" under section 33031 subdivision (a) or (b). But the presence of a factor that can cause blight can hardly by itself justify a blight finding For example, section 33031, subdivision (a)(4) recognizes that "subdivided lots of irregular form and shape and inadequate size for proper usefulness and development ... are in multiple ownership" is a condition that can indeed cause blight. However, no one could credibly argue that it is a condition that necessarily causes blight. Some of the most desirable real estate parcels on earth are characterized by irregular size and multiple ownership, e.g., Burgundy, France, where French inheritance laws keep making holdings smaller and smaller in the region.
[22] It is quite understandable why Lake Forest has not vigorously attempted to argue the sufficiency of its blight finding this case isn't really, as were Sweetwater, Friends of Mammoth, or Beach-Courchesne, a sufficiency of evidence case. The city's briefing on the sufficiency issue impliedly recognizes that reality. The core issue is its proposition that the county's blight finding that went unchallenged in 1988 should be accorded conclusive effect in the context of a validation proceeding targeting the city's amendment in 2002. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262497/ | 124 N.J. Super. 276 (1973)
306 A.2d 469
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JULIUS BLUE, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued April 24, 1973.
Supplemental memoranda submitted May 23 and June 4, 1973.
Decided June 21, 1973.
*278 Before Judges KOLOVSKY, MATTHEWS and CRAHAY.
Miss Rita L. Bender, designated counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).
Mr. Michael R. Perle, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
*279 The opinion of the court was delivered by KOLOVSKY, P.J.A.D.
Defendant, who had been employed as a guard at the Monmouth County Jail, was brought to trial on September 15, 1971 before Judge Conklin and a jury on a two-count indictment charging that he had, on or about October 30, 1970: (1) stolen three revolvers belonging to the Monmouth County Jail, in violation of N.J.S.A. 2A:119-2, and (2) received such revolvers, knowing them to have been stolen, in violation of N.J.S.A. 2A:139-1. The jury found defendant guilty of receiving stolen property and not guilty of larceny. Defendant's motion for a new trial was denied.
Defendant was sentenced to an indeterminate term to the Youth Correctional Institution Complex, with sentence suspended and probation imposed for a period of two years. The court further ordered him to pay a fine of $200 plus the costs of prosecution, payable during the probation period. (It should be noted that under State v. Mulvaney, 61 N.J. 202 (1972), decided after defendant was sentenced, the court was not authorized to require defendant to pay the costs of prosecution.) Defendant appeals.
Sometime during the weekend of October 30 to November 1, 1970 three revolvers were stolen from the gun room of the Monmouth County Jail. On December 3, 1970 Detective Kubaitis of Wall Township, responding to a report of an armed robbery, apprehended a man answering the description of the robber. The man, John Breeland, who was under the influence of narcotics, was found to be carrying a .38-caliber revolver bearing serial number 424211. According to Kubaitis, a teletype to a national information center revealed no information with respect to the revolver, but the next day, December 4, he talked to Breeland and "he told me that this weapon came from the Monmouth County Jail and he knew the subject who gave it to him but he did not wish to talk to me about this weapon at that particular time." Kubaitis then called the county jail and learned that the weapon was one which had been stolen from the jail.
*280 Almost five months later, on April 28, 1971, Breeland for the first time revealed the name of the person from whom he had allegedly obtained the revolver. In a written statement given that day to prosecutor's Detective Manning he said that he had obtained the revolver from defendant Blue.
The testimony of the State's witnesses other than Breeland indicated only that defendant had the opportunity to enter the gun room and remove revolvers therefrom. Breeland was the principal and critical witness against defendant.
Breeland, who had been in Rahway State Prison since January 1971 following revocation of his prior parole, began his direct testimony with a recital of his formidable prior criminal record and then told of his arrest by Detective Kubaitis. He didn't remember talking to the detective about the weapon which was found on him.
According to Breeland, sometime in the middle of November 1970 defendant Blue, with whom he was acquainted, approached him on the street in Asbury Park, carrying a brown paper bag, and asked whether he was "interested in some pistols." Breeland was interested. He and Blue went around the corner and Blue showed him three pistols, asking $40 apiece for them. Blue told him that the pistols "were taken from the County Jail," where he worked, explaining that "officers go out and take inmates sometimes, sometimes they take them to institutions or hospitals. They take weapons, supposed to be signed out. But it would not be signed out, therefore, they would have to be returned." Breeland was given one revolver and promised to pay $40 for it, a promise which, according to Breeland, "was nothing but empty words" since he capitalized on his "nickel and dime reputation in Asbury Park" which caused people to fear him.
Breeland also testified on direct examination that he had been questioned from time to time by prosecutor's detectives but had not revealed Blue's name until he gave the written statement of April 28, 1971. His direct testimony continued with the following questions and answers:
*281 Q. Let me ask you this: You have already been sentenced?
A. Yes.
Q. Did anybody make any promises to you? Did anybody make any deals with you in order to get you to reveal the name of the person who supplied the weapon you used in the robbery?
A. No. * * *
Breeland supplemented the last answer by describing a deal he had tried to make during the course of interrogations by the detectives which took place during the months prior to April 28, 1971.
During those interrogations, the detectives also sought to obtain information as to the whereabouts of the other two revolvers. Noting "how bad they wanted the pistols," Breeland sought "to make a deal with Captain Manning" of the prosecutor's staff, saying that if he were put "on the streets" for 30 days and promised a sentence of not more "than two to three at State's Prison," he would get the two pistols. He didn't "get that deal"; the police obtained the other two pistols through someone else.
On cross-examination, in response to a suggestion by defense counsel that the statement of April 28, 1971 had been given as part of a "deal" involving Breeland's pleas of guilty to charges against him, Breeland answered, "There was no deal."
On redirect examination, Breeland explained that he had no "animosity or ill will" toward defendant but was testifying only because [defendant] is nothing to me but a cop * * *. If he had been anything other than a cop I wouldn't be here."
Defendant testified and denied involvement with the theft of the revolvers or the delivery of one of them to Breeland. Other witnesses testified as to his good reputation and in support of his contention that he had never been in charge of the gun room.
Recognizing that impeachment of Breeland's credibility was essential to defendant's case, defense counsel then called as a witness the probation officer who had interviewed Breeland *282 in the course of his preparation of the presentence report which had been submitted to Judge McGowan who had sentenced Breeland.
Judge McGowan had permitted Blue's attorney to see Breeland's presentence report. Blue's attorney sought to prove, through the probation officer, that Breeland had made statements contradictory to his trial testimony most significantly, that Breeland had told the probation officer that there had been a "deal" between him and the prosecutor, who had agreed to make a recommendation as to the sentence to be imposed on Breeland.
It is clear that defendant Blue had the right to seek to establish that Breeland's testimony was motivated by a desire to curry favor with the police and prosecuting authorities. As the court said in State v. Taylor, 49 N.J. 440 (1967):
This Court has declared it to be proper for a defendant on trial to inquire on cross-examination of an accomplice who is testifying for the State against him, as to whether he is doing so to curry favor in the matter of his own prosecution, or because of a promise or expectation of a lenient sentence for himself. Such matters go to the witness' interest in helping the State to achieve a conviction of the defendant on trial, and obviously are material to an evaluation of his credibility. State v. Curcio, 23 N.J. 521, 525-527 (1957); State v. Spruill, 16 N.J. 73, 78-81 (1954). Thus the State is under a duty when the matter is raised at trial not to conceal the existence of a promise of or agreement to recommend a specific sentence or leniency for an accomplice who is testifying for the State. Or, put affirmatively, it has the duty to disclose the arrangement when proper inquiry raises the question. See, Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). [at 447-448]
Although obviously cognizant of this rule, the court sustained the prosecutor's objection and refused to permit the probation officer to testify, ruling that "the probation file is privileged."
The ruling was erroneous. Presentence reports prepared pursuant to R. 3:21-2 are not "a matter of public record," State v. DeGeorge, 113 N.J. Super. 542, 544 (App. Div. 1971), and normally should not be disclosed to anyone *283 other than the court and counsel for the defendant to which it refers. Nevertheless, neither the cases nor any statute recognize the existence of a privilege which would foreclose a probation officer from testifying, as here, that statements made to him by Breeland contradicted what Breeland had testified to at the trial.
On the contrary, absent a privilege created by statute or case law, the confidentiality of the presentence report must yield to the right of a defendant to produce evidence in the hands of the state authorities bearing upon the truth of the issues involved in his case. State v. Cooper, 2 N.J. 540, 555-556 (1949); see also, Lakewood Trust Co. v. Fidelity and Deposit Co., 81 N.J. Super. 329, 341 (Law Div. 1963); cf. Evidence Rule 36; State v. Oliver, 50 N.J. 39 (1967).
Moreover, even if the trial court's ruling on the issue of privilege were correct, still there must be a reversal because of the State's failure to reveal that in fact it had agreed with Breeland to recommend, and had recommended, a specific sentence in return for his promise to give a statement and to testify for the State. State v. Taylor, supra, 49 N.J. at 448.
Indeed, unless the assistant prosecutor who tried this case and who had not been present either when Breeland pleaded or when he was sentenced had not been made aware of what transpired at those times, he went beyond mere failure to disclose (1) when he elicited, on direct examination of Breeland, a negative answer to his question,
Did anybody make any promises to you? Did anybody make any deals with you in order to get you to reveal the name of the person who supplied the weapon you used in the robbery?
and (2) when he told the jury in summation that there were no deals, emphasizing that Breeland had already been sentenced before he testified and hence had nothing to gain by his testimony.
*284 Subsequent to oral argument we asked for and were furnished transcripts of the sentencing proceedings of September 3, 1971 before Judge McGowan and of the prior proceedings of April 27, 1971 before Judge Yaccarino, at which Breeland, pursuant to a plea bargain, retracted his prior pleas of not guilty and pleaded guilty to the first counts of Indictments 398-70, 490-70 and 564-70. These counts respectively charged him with carrying a weapon without a permit, robbery and possession of cocaine.
The proceedings before Judge Yaccarino opened with a statement by an assistant prosecutor outlining the counts to which Breeland proposed to plead guilty and advising the court that the State would move at the time of sentence to dismiss the other counts of the indictments.
The prosecutor's statement then continued:
As to sentencing, the State will recommend that any sentence the defendant receives in all three matters not be greater than six years nor less than four years, such sentences to be served consecutive with the sentence he is now serving but concurrent with the sentences which he will receive today in these three matters.
* * * * *
The State is stating this because it anticipates the cooperation from Mr. Breeland on other matters in our office, on other matters before the Court.
The State's anticipation of "cooperation from Mr. Breeland" was speedily realized, for it was the very next day, April 28, 1971, that Breeland gave a written statement to the prosecutor's detective, and for the first time named defendant Blue as the person who had given him the revolver.
At the time of sentence Breeland's attorney noted that Breeland had "cooperated in other areas with the Monmouth County Prosecutor's office" and that "through his efforts certain other people were brought to justice." The court followed the prosecutor's recommendations and imposed concurrent sentences whose effective total was four to six years, consecutive to the sentence Breeland was then serving. Further, in accordance with its agreement, the State moved for *285 dismissal of the remaining counts of the indictments against Breeland.
There is no substance in the State's suggestion that there was no duty to disclose the plea bargain, and in any event no prejudicial error because Breeland, having already been sentenced, had "nothing more to gain" by testifying for the State.
Nor is the State's failure to comply with its duty to be excused or ignored because defense counsel who unsuccessfully argued on his motion for a new trial that there should be a hearing to determine whether Breeland had made a deal with the prosecuting authorities had failed to produce, at the trial, what the State, in its supplemental memorandum, labels the "best evidence," viz., the transcript of Breeland's plea and sentence hearings. Cf. State v. Vigliano, 50 N.J. 51, 60 (1967).
The judgment of conviction is reversed and the cause remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328592/ | 478 S.E.2d 418 (1996)
223 Ga. App. 578
O'DELL et al.
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY et al.
No. A96A1243.
Court of Appeals of Georgia.
November 18, 1996.
*419 James E. Goodman, Atlanta, for appellants.
Tittsworth, Grabbe & Spillers, Jennie E. Rogers, Atlanta, Stokes, Lazarus & Carmichael, William K. Carmichael, Michael J. Ernst, Atlanta, for appellees.
SMITH, Judge.
This declaratory judgment action was filed by Daniel Lee O'Dell and two companies owned by him, DRACS Consulting Group, Inc. (DRACS) and Direct Recruiting Associates (DRA), against St. Paul Fire & Marine Insurance Company and Tracey Gilleland. O'Dell and his companies appeal from the trial court's grant of St. Paul's motion for summary judgment and its denial of their motion for summary judgment.
It is necessary to relate the pertinent facts regarding the underlying tort action from which this action arose. On September 16, 1994, Gilleland filed a complaint against O'Dell, DRACS, and DRA. She alleged that O'Dell sexually taunted and harassed her, with the knowledge of DRACS and DRA, during her employment as office manager by DRACS and DRA from October 1991 to March 26, 1993. The complaint described numerous crude sexual comments and lascivious gestures made by O'Dell specifically to and about Gilleland. For example, Gilleland alleged that O'Dell called her a "whore" and a "slut" and that when she "would walk into a room in front of O'Dell, he would say to the others present, `I could have that if I wanted it.'" Another allegation was that O'Dell used a stick to lift up Gilleland's skirt and would hit the tops of her feet with the stick "in order to humiliate [her], in front of several employees." He also allegedly entered Gilleland's office on several occasions and made gestures as if he wished her to perform oral sodomy. When she protested and cried, he allegedly laughed. In fact, Gilleland alleged that "[o]ne of ... O'Dell's favorite pastimes was to do whatever mean or harassing thing to [Gilleland] that he could think of in order to cause [her] to cry in her office and in front of people." Based on these as well as several other factual allegations of outrageously crude and lascivious conduct, Gilleland sought damages for claims of assault, battery, intentional infliction of emotional distress, sexual harassment, and negligent retention of employment.
O'Dell sought coverage from St. Paul, the insurer who had issued commercial general liability coverage to O'Dell's companies, under three successive policies. St. Paul refused to defend the lawsuit on the grounds that the damages sought by Gilleland were not covered and that certain exclusions precluded coverage. O'Dell filed this declaratory judgment action to determine the obligations of the parties with respect to the policies. O'Dell appeals the trial court's ruling that St. Paul was not obligated to defend the lawsuit.
"An insurer's duty to defend is determined by the insurance contract; and since the contract obligates the insurer to defend claims asserting liability under the policy, even if groundless, the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted." (Citations and punctuation omitted.) Brayman v. Allstate Ins. Co., 212 Ga.App. 96(1), 441 S.E.2d 285 (1994). See also Al Who Enterprises v. Capitol Indem. Corp., 217 Ga.App. 423, 426(1), 457 S.E.2d 696 (1995). The critical issue is "whether the suit alleges a claim that is covered by the policy. [Cit.]" Cantrell v. Allstate Ins. Co., 202 Ga.App. 859, 860, 415 S.E.2d 711 (1992). We therefore must compare the terms of the insurance contract to the allegations in the complaint to determine whether the Gilleland lawsuit seeks damages for covered claims.
St. Paul's duty to defend is described in the policies as follows: "Right and duty to defend. We'll have the right and duty to defend any claim or suit for covered injury or damage made or brought against any protected person." The policies recite that they cover four types of injuries: (1) bodily injury; (2) property damage; (3) personal injury; and (4) advertising injury. It appears to be undisputed that the claims for which O'Dell seeks coverage are Gilleland's claims for bodily and personal injury.
*420 1. Bodily injury. In the policies effective from March 15, 1991 through March 15, 1993, bodily injury is defined as "physical harm, including sickness or disease, to the health of others. It also includes death resulting at any time from such harm." The successor policy, in effect eight days before Gilleland's termination, defined bodily injury as "any physical harm, including sickness or disease, to the physical health of other persons. It includes any of the following that result at any time from such physical harm, sickness or disease: mental anguish injury or illness; emotional distress; care, loss of services, or death."
In Georgia, "used in an insurance policy, the term `bodily injury' means just that`bodily injury.' It pertains to physical injury to the body. It does not include non-physical, emotional or mental harm. And it cannot be equated with a broader term `personal injury.'" (Citations and punctuation omitted.) Brayman, supra, 212 Ga.App. at 96-97(1), 441 S.E.2d 285. Although Gilleland alleged emotional distress in her lawsuit, she did not allege that such distress resulted from physical harm or injury. Consequently, those allegations do not constitute bodily injury as defined by the policies. See Brayman, supra; Wilmington Island Constr. Co. v. Cincinnati Ins. Co., 179 Ga.App. 477, 479(2), 347 S.E.2d 308 (1986).
Moreover, even assuming that Gilleland's complaint alleged bodily injury as contemplated by the policies, all policies recite that coverage applies if bodily injury arises out of an "event." They define event as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." (Emphasis supplied.) Although the policies do not define accident, "in Georgia an accident is defined as an event which takes place without one's foresight or expectation or design. An accident refers to an unexpected happening rather than one occurring through intention or design. Acts could not be unexpected unless they were accidental." (Citations and punctuation omitted.) Southern Guaranty Ins. Co. v. Phillips, 220 Ga.App. 461, 462(1), 469 S.E.2d 227 (1996). See also Brayman, supra at 97(1), 441 S.E.2d 285. Given the allegations that O'Dell committed sexual harassment and assault and battery, which are by their nature intentional, we cannot conclude that bodily injury, if any, was caused by an accident. See id.; Presidential Hotel v. Canal Ins. Co., 188 Ga.App. 609, 611, 373 S.E.2d 671 (1988). Consequently, the allegations of bodily injury do not fall within the policies' definitions of "events" and are not covered.
O'Dell also claims that St. Paul must defend the lawsuit on behalf of DRACS and DRA because Gilleland alleged facts on which a cause of action for negligent retention of O'Dell could be based. We note initially that the policy does not recite that it covers losses due to negligent retention. But even if this were true, the complaint does not allege that Gilleland suffered bodily injuries, and even assuming she did suffer bodily injuries, she did not allege that those injuries were caused by an accident and thus were brought about by an "event."
2. Personal injury. The policies all recite that St. Paul will provide coverage for the following specific personal injuries that result from business activities: "false arrest, detention, or imprisonment; malicious prosecution; wrongful entry or wrongful eviction; libel or slander; written or spoken material made public which belittles the products or work of others; written or spoken material made public which violates an individual's right of privacy."[1] Although Gilleland did not specifically make a claim that O'Dell committed any of these offenses, O'Dell argues that the lawsuit nevertheless alleged facts on which a cause of action for slander (which is a covered personal injury) could be based. According to O'Dell, "recovery [for slander] could have been possible under an unstated cause of action based on the facts that were alleged."
*421 We do not reach here the issue of whether an insurer is obligated to defend an as yet "unstated cause of action." Even assuming that the complaint somehow provided notice to St. Paul that Gilleland raised a slander claim, Gilleland's lawsuit was filed more than one year after her employment was terminated on March 23, 1993. An action for slander was therefore barred by the one year statute of limitation pursuant to OCGA § 9-3-33.
O'Dell argues that a statute of limitation defense is an affirmative defense and is waived if not raised in an answer. The defense is indeed affirmative in nature, OCGA § 9-11-8(c), but St. Paul has not waived it. "The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived, but if it is raised by motion, or by special plea in connection with the answer or by motion for summary judgment there is no waiver." (Citations and punctuation omitted; emphasis supplied.) Brown v. Moseley, 175 Ga.App. 282, 283(1), 333 S.E.2d 162 (1985). See also Fortier v. Ramsey, 136 Ga.App. 203, 206(2), 220 S.E.2d 753 (1975) (statute of limitation can be raised in opposition to motion for summary judgment). St. Paul raised the statute of limitation defense at the first practical opportunity_____in its response to O'Dell's motion for summary judgment, in which O'Dell raised the issue that facts appeared in the Gilleland lawsuit supporting an action for slander.[2] The slander issue was first actually raised by O'Dell in connection with the parties' respective motions for summary judgment. Since St. Paul immediately responded to that issue after it was raised by O'Dell, O'Dell cannot claim that he was surprised, and the purpose behind the rule that affirmative defenses be pled was met. The lawsuit was filed after the statute of limitation ran on any slander claim, and St. Paul has no duty to defend against Gilleland's lawsuit. Accordingly, the trial court did not err in granting St. Paul's motion for summary judgment and denying O'Dell's motion for summary judgment.
Judgment affirmed.
POPE, P.J., and ANDREWS, J., concur.
NOTES
[1] In the third policy, personal injury offenses are almost identically defined, except for the language describing the last two enumerated offenses. The third policy recites that personal injuries include "making known to any person or organization written or spoken material that belittles the products, work or completed work of others [and] making known to any person or organization written or spoken material that violates an individual's right of privacy."
[2] We note that in connection with this action for declaratory judgment, O'Dell requested that Gilleland's lawsuit be enjoined. The trial court honored that request by enjoining Gilleland from further action in her lawsuit by order dated February 17, 1995. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328598/ | 478 S.E.2d 905 (1996)
223 Ga. App. 726
LEIGH
v.
The STATE.
No. A96A1450.
Court of Appeals of Georgia.
December 3, 1996.
Certiorari Denied March 7, 1997.
*906 William M. Brownell, Jr., Gainesville, for appellant.
Lydia J. Sartain, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.
BLACKBURN, Judge.
Joshua Timothy Leigh appeals his convictions for party to the offenses of armed robbery, possession of a firearm during the commission of a felony, and theft by taking. He contests the sufficiency of the evidence, contends that his custodial statement should not have been admitted into evidence, and asserts the trial court erred in charging the jury.
On December 15, 1994, Leigh and his co-indictees, Anthony Charles Gilleland and Scott Christopher Payne, rode past the Quillian's Corner branch of the First National Bank of Gainesville and made plans to rob it. The next day, the following items were obtained: a getaway motorcycle; two handguns, taken without permission from Gilleland's parents' home; pillowcases to hold the money; and pantyhose for use as a disguise. While Leigh waited in a nearby field with Gilleland's car, Gilleland and Payne rode the motorcycle to the bank to rob it. This robbery was never completed, as Gilleland crashed the motorcycle on the way to the bank, injuring Payne's ankle. After stopping outside the bank, the two returned to the field where Leigh was waiting.
After the failed first attempt, the three men proceeded to a spot near another bank. Leigh and Payne waited with the car in a designated area while Gilleland took the motorcycle and a gun and robbed the bank. Following the robbery, Leigh and Payne picked Gilleland up in Gilleland's car, and the three split the proceeds of the robbery. All three men were subsequently arrested, and Gilleland pled guilty and was sentenced in *907 federal court. As part of his plea-bargain agreement on his state charges, Gilleland testified against Leigh at trial. Payne also testified against Leigh at trial.
1. Leigh argues that his custodial statement was erroneously admitted because it was not knowing and voluntary. First, Leigh argues that his statement was improperly induced by the interrogating officer, who inferred that Leigh might receive more favorable treatment from the prosecutor and the trial court if he cooperated by making a statement. Second, Leigh argues that, at the time of the confession, he was mentally incapable of making a knowing and voluntary statement.
With respect to Leigh's first argument, as he was interviewed by Investigator John Sisk, Leigh was told, "if you want to tell us what happened, tell us your side and cooperate, it can't do anything but help you." When Leigh asked how his cooperation would help, Sisk told him, "on down the road, the court proceedings and all that. The judge and D. A. ... always ask, you know, did you cooperate with us, did you not cooperate with us." Leigh contends his subsequent confession was invalid because Investigator Sisk's statements created the hope of benefit in violation of OCGA § 24-3-50.
When a trial judge holds a suppression hearing and determines the voluntariness of a confession, that determination will be upheld on appeal unless clearly erroneous. Burton v. State, 212 Ga.App. 100, 102, 441 S.E.2d 470 (1994). In support of his argument, Leigh cites Askea v. State, 153 Ga.App. 849, 267 S.E.2d 279 (1980). In Askea, the defendant's custodial statement was rendered inadmissible after the interrogating police officer informed the defendant that if he told the truth, it would probably help him in court. Askea, supra at 851, 267 S.E.2d 279.
This case is factually distinguishable. Unlike the officer in Askea, Investigator Sisk did not limit his comments to merely telling Leigh that talking "would probably" help Leigh in court. See Askea, supra at 851, 267 S.E.2d 279. Instead, Investigator Sisk immediately and specifically explained his comment, telling Leigh that should they ask, Investigator Sisk would inform the judge and the district attorney of Leigh's cooperation in the investigation. "We have construed the `slightest hope of benefit' as meaning the hope of a lighter sentence. Merely telling a defendant that his or her cooperation will be made known to the prosecution does not constitute the `hope of benefit' sufficient to render a statement inadmissible under OCGA § 24-3-50." (Citations and punctuation omitted.) Arline v. State, 264 Ga. 843, 844(2), 452 S.E.2d 115 (1995). See also Autry v. State, 210 Ga.App. 150, 435 S.E.2d 512 (1993).
Lyles v. State, 221 Ga.App. 560, 561, 472 S.E.2d 132 (1996) is similar to this case, and in Lyles, the confession was upheld although the interrogating officer told the defendant that if he cooperated, the officer would mention the defendant's cooperation to the district attorney, and that it might help the defendant. Furthermore, like the defendant in Lyles, Leigh signed a form which acknowledged that he had not been promised anything. Investigator Sisk testified that neither he nor any other officer made Leigh any promise, benefit, or hope of reward if Leigh agreed to talk. In light of the above, the trial court's denial of Leigh's motion to suppress the statement was not clearly erroneous.
Aside from the hope of benefit, Leigh also contends that his waiver of rights was not knowing and voluntary. He argues that when he made his statement, he was 17 years old, had a ninth-grade education, and had smoked excessive amounts of crack cocaine hours before making the statement.
"The question of whether a waiver of rights and a subsequent statement have been voluntary and knowing depends on the totality of the circumstances." Reinhardt v. State, 263 Ga. 113, 115, 428 S.E.2d 333 (1993). Our review of Leigh's videotaped statement confirms the trial court's ruling that Leigh freely and voluntarily waived his rights. Officer Sisk testified that he advised Leigh of his rights, and that Leigh acknowledged that he understood those rights, both verbally and in writing. Sisk further testified that *908 Leigh's responses were appropriate to the questions asked, and that Leigh did not appear to be under the influence of drugs, alcohol, or intoxicants. The trial court's finding that Leigh freely and voluntarily waived his rights was therefore not clearly erroneous.
2. Leigh argues that the evidence is insufficient as a matter of law to prove beyond a reasonable doubt that he was a party to the offenses of armed robbery, possession of a firearm during the commission of a felony, and theft by taking. He also contests the sufficiency of the evidence corroborating the testimony of the accomplice, Anthony Gilleland. "On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 [(1979) ].... As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld." (Punctuation omitted.) Ferguson v. State, 221 Ga.App. 415, 419, 471 S.E.2d 528 (1996).
Leigh argues that he did not aid, abet, or encourage the commission of any of the crimes for which he was convicted, and that his involvement in the crimes did not rise to a level sufficient to sustain his conviction as a party to those crimes. OCGA § 16-2-20 provides in pertinent part: "Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.... A person is concerned in the commission of a crime only if he ... [i]ntentionally aids or abets in the commission of the crime; or ... [i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime."
With respect to the offenses of armed robbery and possession of a firearm during the commission of a felony, the evidence allowed the jury to find that Leigh initiated the robbery idea and agreed with the suggestion to rob a bank. He obtained pillowcases and hosiery disguises for use in the robbery, and helped locate a bank to rob and a hiding place near that bank. He waited in a hiding place for Gilleland to rob the bank at gunpoint, and then picked Gilleland up after the robbery took place. Upon completion of the crime, Leigh accepted approximately $700 worth of stolen money from Gilleland.
"[C]riminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.... [P]resence, companionship and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." (Punctuation omitted.) Norris v. State, 220 Ga.App. 87, 89, 469 S.E.2d 214 (1996). Additionally, "[c]onspiracy may be proven by direct or circumstantial evidence." (Punctuation omitted.) Okongwu v. State, 220 Ga.App. 59, 61, 467 S.E.2d 368 (1996). Applying these standards to the facts of this case, the evidence is sufficient to sustain the convictions for armed robbery and possession of a firearm during the commission of a felony under Jackson v. Virginia, supra.
Leigh also argues that the evidence presented was insufficient to corroborate the testimony of the accomplice, Gilleland. Although OCGA § 24-4-8 prevents the conviction of a defendant in felony cases where the only witness testimony is the uncorroborated testimony of an accomplice, "slight evidence of a defendant's identity and participation from an extraneous source is all that is required to corroborate the accomplice's testimony, and thus, support the verdict.... The necessary corroboration may be by circumstantial evidence." (Punctuation omitted.) Stephenson v. State, 220 Ga.App. 95, 96-97, 469 S.E.2d 266 (1996). Moreover, "an accomplice's testimony may be corroborated by the testimony of another accomplice." Id. at 97, 469 S.E.2d 266. As the testimony regarding armed robbery and possession of a firearm was corroborated by Gilleland, Payne, and even Leigh's own statement, this contention is without merit. The evidence was sufficient to authorize the jury's finding *909 of Leigh's guilt beyond a reasonable doubt. Jackson v. Virginia, supra.
Leigh contests the sufficiency of the evidence as to his conviction for party to theft by taking. This conviction is based on Gilleland's theft of two guns from his parents' home. Leigh seeks reversal of this conviction because the state failed to prove that Leigh knew Gilleland had stolen the guns.
The law in Georgia governing the liability of conspirators for the acts of co-conspirators is well-settled. "The elements of proof that one is a party to a crime ... [require] proof of a common criminal intent.... When individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one of the conspirators is in legal contemplation the act of all, subject to the qualification that each is responsible for the acts of the others only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy." (Punctuation omitted.) Crawford v. State, 210 Ga.App. 36, 37, 435 S.E.2d 64 (1993).
The case of Walker v. State, 213 Ga.App. 407, 444 S.E.2d 824 (1994) addresses the issue of a conspirator's liability for a crime committed by a co-conspirator outside of the original conspiracy plan. Walker hired Mercer to kill Walker's wife, but instead of murdering the victim as planned, Mercer sodomized her and her daughter. Walker's convictions on two counts of sodomy were affirmed, and this court held that "[c]onspirators are responsible for the acts of each other in carrying out the common purpose or design, although such acts may constitute another criminal offense." (Punctuation omitted.) Walker, supra at 411, 444 S.E.2d 824. Although "the acts of sodomy were not an automatic outgrowth of the crime plotted,... [they] nevertheless grew out of the acts committed while one conspirator was engaged in furthering the criminal enterprise." Id.
In this case, the parties entered into an agreement to commit an armed robbery, and as part of that agreement, determined that a gun would be needed. It was decided between the three, without addressing the issue of permission, that the gun would come from Gilleland's parents' house. Gilleland then stole the guns and used them in the robbery.
Applying the analysis of Walker, the jury was entitled to find that Gilleland's theft of the guns was naturally, necessarily done pursuant to the parties' conspiracy. "[E]verything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them.... [T]his joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose." (Emphasis supplied; punctuation omitted.) Crawford, supra at 38, 435 S.E.2d 64. Leigh's conviction for party to theft by taking is accordingly affirmed.
Having already addressed the sufficiency of the evidence in this division, it is unnecessary to address Leigh's arguments regarding the trial court's failure to grant his motions for directed verdict of acquittal and new trial.
3. Leigh enumerates as error the trial court's charge on knowledge, which stated: "[S]hould you find beyond a reasonable doubt ... that the defendant had knowledge that the crimes of armed robbery or burglary or theft by taking or possession of a firearm in the commission of a felony were being committed ... and that the defendant knowingly and intentionally participated or helped in the commission of any one of these crimes, then you would be authorized to convict the defendant of any of the crimes of which you would find the defendant had knowledge as I have just defined knowledge to you." Leigh reserved his right to object to the charge, and now argues that the disjunctive use of the word "or" allowed the jury to find him guilty of any crime named so long as it found he had knowledge of any other crime named.
Leigh requested the pattern charge on knowledge, which is substantially the charge the court gave. See Council of Superior Court Judges Suggested Pattern Jury Instructions, p. 21. Although Leigh now argues he was prejudiced because the charge *910 was misleading and confusing, "[t]he charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same." (Punctuation omitted.) Garren v. State, 220 Ga.App. 66, 68, 467 S.E.2d 365 (1996). "[W]e do not believe that the charge as a whole would mislead a jury of average intelligence." Dooley v. State, 221 Ga.App. 245, 246, 470 S.E.2d 803 (1996). This enumeration is therefore without merit.
Judgment affirmed.
BEASLEY, C.J., and BIRDSONG, P.J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328523/ | 228 S.C. 577 (1956)
91 S.E.2d 276
ROBERT B. WYNN, Respondent,
v.
H. RAY ROOD and BERNARD HUNSINGER, Appellants.
17112
Supreme Court of South Carolina.
January 31, 1956.
*578 Messrs. Leatherwood, Walker, Todd & Mann, of Greenville, for Appellants.
Messrs. Price & Poag, of Greenville, for Respondent.
January 31, 1956.
OXNER, Justice.
This is an action to recover damages to person and property resulting from a collision between respondent's automobile and a truck and trailer owned by appellant H. Ray *579 Rood and operated by his employee, appellant Bernard Hunsinger, which occurred in Greenville County at approximately 1:00 A.M., on August 29, 1954, at or near the intersection of Highway No. 250, known as the White Horse Road, and Highway No. 123 By-Pass. The trial resulted in a verdict for respondent in the sum of $3,000.00.
The first question presented is whether the trial Judge erred in refusing appellants' motions for a nonsuit and a directed verdict upon the ground that respondent was guilty of contributory negligence as a matter of law.
Highway No. 250 is a through highway and at the place of the collision runs approximately north and south. The surface treated or traveled portion of the road is twenty feet wide. It is intersected at right angles by No. 123 By-Pass, which is principally used by motorists for the purpose of entering Highway No. 250. The truck, loaded with 30,000 1bs of potatoes, was driven in a westerly direction along the by-pass. Before entering the intersection, the driver stopped and then proceeded to make a left turn so as to go south along Highway No. 250. Before entirely completing the turn, he stopped for the purpose of asking directions. When he stopped, the truck, headed south, was within the southbound lane of Highway No. 250 but the rear of the trailer extended five feet into the northbound lane of said highway. In other words, the rear of the trailer occupied about half of the traveled portion of the northbound lane. After the truck and trailer had been standing in this position for less than a minute, the automobile of respondent, which was being driven along Highway No. 250 in a northerly direction, collided with the left rear of the trailer.
The night was dark. Respondent lived on Highway No. 250 and was returning home. Although he knew the speed limit in this area was 35 miles an hour, he admitted that he was traveling at approximately 40 miles an hour. He testified that in approaching this intersection, he came around a curve and first observed the lights of the tractor *580 when he was 300 feet away. He then dimmed his lights and when within about 50 feet of the tractor noticed that the rear of the trailer was protruding into his side of the road. He immediately applied his brakes but before he could stop, the left front of his car collided with the left rear of the trailer. The marks on the pavement showed that he skidded a distance of 39 feet. His car was damaged beyond repair and he sustained painful personal injuries.
The accident was witnessed by two patrolmen who were sitting in highway cars near the intersection. One of them testified in part as follows:
"Q. Was his (respondent's) speed excessive? A. His speed wasn't excessive for the amount of traffic and road conditions, wasn't anything to attract your attention.
"Q. At the speed he was traveling, and with the trailer like it was could he have seen it before he was on the trailer? A. In my opinion, he couldn't."
Appellants raise no question as to negligence on the part of the driver of the truck. They seek to escape liability upon the ground that respondent was guilty of contributory negligence as a matter of law. This contention is largely based upon respondent's admission that he was traveling 40 miles per hour in a 35 mile speed zone. But we think the question of whether any negligence in this respect contributed as a proximate cause of respondent's injury and damage was properly submitted to the jury. Coney v. Cox, 165 S.C. 26, 162 S.E. 596, and cases therein cited. "It is firmly established in this jurisdiction that if the inferences properly deducible from the evidence are doubtful, or if they tend to show both parties guilty of negligence or wilfulness, and there may be a fair difference of opinion as to whose act produced the injury complained of as a direct and proximate cause, then the question must be submitted to the jury." Harrison v. Atlantic Coast Line R. Co., 196 S.C. 259, 13 S.E. (2d) 137, 141.
*581 There is also some suggestion in the argument of counsel for appellants that respondent could have avoided the collision by driving to the right off the surface treated portion of the highway. Respondent testified that this could not be safely done on account of some posts standing to the right of the highway. Be that as it may, it was for the jury to determine whether in the sudden emergency which confronted him, respondent exercised ordinary care and judgment.
It is next contended that appellants were seriously prejudiced by the conduct of respondent's counsel in propounding improper questions to the highway patrolman and appellant Bernard Hunsinger, the driver of the truck, and that the Court should have ordered a mistrial.
After the highway patrolman, an eyewitness, had related on direct examination by respondent's counsel the details of the accident, the following occurred:
"Q. Did you make any charge against either of the parties?
"By Mr. Mann: My friend knows that is objectionable, that has been held time and again; and I move for a mistrial on that basis.
"The Court: It is harmless against either party.
"By Mr. Price: I don't know of any cases where you can't ask if there was a charge; you can't go into the details.
"By the Court: Q. You say you made a charge? A. You want me to answer the question?
"The Court: If you did make a charge against either, I don't think it would be proper."
And on cross-examination by respondent's counsel of the driver of the truck, the record discloses the following:
"Q. If your trailer hadn't been out in the road he could have gone safely by? A. Yes, sir.
"Q. You talk about talking to people afterwards and going to this boy's home, had the highway patrolman told *582 you as a stranger he wouldn't arrest you but gave you a summons?
"By Mr. Mann: We object to that.
"By Mr. Price: I am not going into the details, I want to ask him if he didn't leave the community and has never responded to his summons.
"By Mr. Mann: I object to that and move the Court for a mistrial.
"The Court: No; disregard that, gentlemen."
We agree with appellants' counsel that the questions propounded in each instance were incompetent and the trial Judge properly so ruled. The fact that the patrolman may have preferred charges against the driver was irrelevant. Under the terms of Section 46-686 of the 1952 Code, even a conviction for violation of the statute regulating traffic on the highways is inadmissible. Nor do we see any relevancy in the inquiry as to whether the driver was given a summons instead of being arrested. It should also be stated that the comment of respondent's counsel with reference to the driver's failure to respond to the summons was improper. But it does not necessarily follow from the fact that incompetent questions are propounded to a witness that the Court must order a mistrial. It depends upon the circumstances.
"The general rule is that where the jury is cautioned and instructed to disregard the incompetent testimony, the judgment will ordinarily not be reversed. Usually, it is only where counsel persists in attempting to mislead and prejudice the jury by asking questions known to be out of order; or where a court of review can see that, notwithstanding the efforts of the presiding judge to remove the prejudicial effects of such conduct, an injury may have resulted to the other party, that a judgment should be reversed on that ground alone. Of course, where the damage done is ineradicable, the presence of good faith or inadvertence is of little moment. Necessarily, each case must be judged on its own *583 facts and circumstances." McCrae v. McCoy, 214 S.C. 343, 52 S.E. (2d) 403, 404.
It is well settled that the granting of a motion for a mistrial by reason of anything occurring during the trial of a case is in the sound discretion of the trial Judge, and his ruling thereabout will not be disturbed unless there has been an abuse of discretion. McCrae v. McCoy, supra; Gordon v. Rothberg, 213 S.C. 492, 50 S.E. (2d) 202; Haselden v. Atlantic Coast Line R. Co., 214 S.C. 410, 53 S.E. (2d) 60; Mock v. Atlantic Coast Line R. Co., 227 S.C. 245, 87 S.E. (2d) 830.
We do not think the trial Judge abused his discretion in refusing to order a mistrial. If the patrolman preferred charges against the driver of the truck, it could only mean that he concluded that there had been a violation of the traffic regulations. The statement of such conclusion could have had no influence on the jury because the patrolman had previously testified, in effect, that the driver violated the law in stopping his vehicle on the highway with the rear of the trailer protruding five feet into respondent's traffic lane. Nor do we think the question propounded to the driver with reference to the summons was so highly prejudicial as to necessitate a mistrial. Not to be overlooked in considering the question of probable prejudice from the incidents complained of is the fact that the overwhelming weight of the evidence shows a case of liability.
Error is assigned in refusing an instruction orally requested by appellants' counsel at the conclusion of the charge. The record does not disclose that the request embodied in this exception was made. It does show that appellants' counsel made an oral request to charge but of a different character. Of course, the record before us may not correctly show the phraseology of the oral request, but we are bound by it.
Finally, it is claimed that the verdict is excessive. There is no merit in this contention. The amount found by the jury is fully sustained by the evidence.
*584 Affirmed.
STUKES, TAYLOR and LEGGE, JJ., and JOSEPH R. MOSS, Acting Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328537/ | 91 S.E.2d 594 (1956)
243 N.C. 632
F. W. LAWRENCE, Jr. and Lumbermens Mutual Casualty Company
v.
Solomon C. BETHEA.
No. 20.
Supreme Court of North Carolina.
March 7, 1956.
McMullan & Aydlett and Gerald F. White, Elizabeth City, for plaintiffs, appellants.
LeRoy & Goodwin, Elizabeth City, for defendant, appellee.
JOHNSON, Justice.
Civil action in tort by plaintiffs to recover for collision-damage to automobiles, allegedly caused by the negligence of the defendant.
At the close of the plaintiffs' evidence the trial court allowed the defendant's motion for judgment as of nonsuit. The single question presented for decision is whether this ruling was correct.
Highway No. 158 runs north and south along the beach from Nags Head through the town of Kill Devil Hills, in Dare County. The paved portion of the highway is 20 feet wide, with soft sand shoulders on each side. Cottages are located between the highway and the beach. The collision occurred a few minutes after midnight, 24 July, 1955, near the juncture of the driveway leading from the highway to a private cottage on the beach where the plaintiff Lawrence and family were staying.
Earlier that night, the plaintiff Lawrence had parked his 1953 Dodge and his 1951 Plymouth automobiles side by side on the concrete driveway between the cottage and the highway. Both cars were headed toward the highway, and the nearest one was about 21 feet from the highway. The plaintiff Lawrence was "awakened by an unusually loud crash." He looked out the window and "saw a cloud of dust," and upon investigation found that his automobiles had been struck by a Chevrolet car driven by the defendant. The Chevrolet was jammed in between "the two parked cars."
Other evidence on which the plaintiffs rely tends to show that heavy tire marks were traced behind the defendant's Chevrolet from the point of impact in the driveway back through the sand alongside the highway, "over various other driveways," a *595 distance of more than 180 feet southwardly, to the point where the Chevrolet left the highway.
Other evidence discloses that immediately before the collision, the defendant was driving his Chevrolet northwardly along the highway; that a pick-up truck belonging to Twiford's Funeral Home approached from the rear, overtook, and passed the defendant, and in doing so struck "a slight portion of the left rear bumper" of the Chevrolet and sideswiped its left rear fender and left side. Whereupon the defendant's Chevrolet left the surfaced portion of the highway and veered off into the sand on its right immediately beyond the point of impact, where debris was found on the highway, and from there "made a diagonal course * * * through the sand * * * passing over intervening driveways until it came to a halt against the two cars of Mr. Lawrence," an over-all distance of 189 feet.
"The weather * * * was dry, clear, and not raining. * * * in fact had been dry for some time. The sand was soft. * * Sand in the condition in which it was in * * * the early morning of July 24th is not easily traversed by automobile."
It was stipulated that the collision occurred in a 35-mile per hour speed zone.
The "Lawrence cars received considerable damage as a result of the impact." The Dodge was pushed through some posts and through a 6-foot section of sand. The Plymouth was demolished to the extent it was reduced to salvage value. The plaintiff Lawrence was paid $1,225 for its loss by the plaintiff insurance company. The damage to the Dodge, according to the testimony of one witness, reduced its value $950. The insurance company paid Lawrence $651.58 under its collision policy on the Dodge. Plaintiff Lawrence had a $50 deductible policy on each car. In the trunk of the Dodge were an Exide battery, a propeller for an electric trolling motor, and a new can full of gasoline. All these items were smashed and rendered worthless.
Other phases of the evidence (parts of which are more favorable to the defendant than to the plaintiffs) tend to show that before the defendant's Chevrolet ran off the highway it was struck from the rear and side "a terrific blow" by the Funeral Home pick-up truck as the latter overtook and passed the Chevrolet; that the pick-up struck the Chevrolet "on the rear left bumper and the left rear fender on down the side"; that the pick-up, after striking the defendant's car, traveled a distance of 423 feetpart of which was through soft sand on the left shoulderstruck and tore down a telephone pole, turned over and killed its driver. Over the defendant's objection, Patrolman Meiggs gave as his opinion, based on his experience in working on Highway 158 along the Dare beach and his knowledge of the condition of the sand at and near the place of collision, that the defendant's car was traveling about 45 miles per hour when it left the highway and as much as 35 miles per hour at "the point of impact of the two cars that were parked." Cross-examination: "I asked Bethea how fast he was going and he said 35 miles and I put it in my report. The way my report reads is: `Estimated speed at moment of accident 35 miles.' * * * It is possible from the evidence I saw and the experience that I have had that the impact from the truck would have increased the speed of the Bethea car as much as 10 miles an hour."
Our analysis and appraisal of the evidence leaves the impression it is sufficient to carry the case to the jury on the issue of actionable negligence. The evidence, when viewed in its light most favorable to the plaintiffs, as is the rule on motion for nonsuit, is susceptible of the inference that the defendant's negligence, based on excessive speed in a 35-mile per hour speed zone, was one of the proximate causes of the collision. It may be conceded that certain phases of the evidence are susceptible of counter inferences (1) that the defendant was free of negligence, or (2) that any negligence attributable to him was insulated or superseded by the intervening negligence of the driver of the Funeral Home truck. But on this record, whether either of these permissive inferences shall be drawn is a matter to be determined by the jury in resolving the *596 crucial questions of negligence and of proximate cause. Discrepancies and contradictions in the plaintiff's evidence are for the jury and not for the court. Childress v. Lawrence, 220 N.C. 195, 16 S.E.2d 842; Brafford v. Cook, 232 N.C. 699, 62 S.E.2d 327. Decision here is controlled by the principles explained and applied in Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197, and Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331.
For the reasons stated, the judgment below is
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328541/ | 93 Ga. App. 451 (1956)
91 S.E.2d 796
YOUNGBLOOD
v.
HENRY C. BECK COMPANY.
36060.
Court of Appeals of Georgia.
Decided March 1, 1956.
*453 Barrett & Hayes, Wesley R. Asinof, for plaintiff in error.
Lokey & Bowden, contra.
GARDNER, P. J.
Counsel for the plaintiff argues that the trial judge, in sustaining the general demurrer to the petition, apparently assumed that the plaintiff's cause of action was predicated upon the fellow-servant rule. The judge's order sustaining the demurrer reads: "This case coming on for hearing before me on demurrer, after hearing argument the general demurrer of the defendant is sustained and the plaintiff's petition is hereby dismissed for failure to state a cause of action in favor of the plaintiff and against the defendant. The special demurrers are not passed on." We find no place where it is contended that the plaintiff's son was a fellow servant of the operator of the hoist, an employee of the defendant. Therefore, Standard Cotton Mills v. Collum, 6 Ga. App. 426 (65 S.E. 195) is not authority for a reversal of the instant case. Nor is Loveless v. Standard Gold Mining Co., 116 Ga. 427 (42 S.E. 741, 59 L. R. A. 596), a fellow-servant case. The same ruling applies to Southern Bauxite Mining &c. Co. v. Fuller, 116 Ga. 695 (43 S.E. 64); Southern Railway Co. v. Diseker, 13 Ga. App. 799 (81 S.E. 269) and Doby v. W. L. Florence Construction Co., 71 Ga. App. 888 (32 S.E.2d 527). We say this because, as stated hereinabove, it is not contended that the plaintiff's son was a fellow servant of the defendant. The proposition of law before the trial court on general demurrer and here on sustaining of the general demurrer concerns one issue only, i.e., whether or not the petition shows upon its face that the petitioner's son failed to exercise ordinary care for his own safety *454 under the facts alleged. It is elementary that the plaintiff could not recover unless the deceased could have recovered had he been injured only and lived to seek damages for such injuries. See Berry v. Northwestern Railroad, 72 Ga. 137, and Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 666 (88 S.E.2d 6). It has been many times held that a mentally responsible person 14 years of age is as responsible as is an adult for his own safety. See Jordan v. Wiggins, 66 Ga. App. 534, 539 (18 S.E.2d 512) and Beck v. Standard Cotton Mills, 1 Ga. App. 278, 280 (57 S.E. 998). In Evans v. Josephine Mills, 119 Ga. 448, 454 (46 S.E. 674), the Supreme Court said: "The line must be drawn somewhere, and, with variation below that age depending on capacity, the time of responsibility has been absolutely fixed at fourteen." The plaintiff's son was not in the exercise of ordinary care for his own safety in voluntarily riding up the outside of the building on a materials hoist which obviously had no handrails, gates, barriers, sides or safeguards to protect a person from falling therefrom and which the petition alleges was dangerous, unsafe and unfit for anyone to ride on as a passenger. In Southland Butane Gas Co. v. Blackwell, supra, the Supreme Court said: "Under these sections of the Code it is clear that there can be no recovery of damages where the injured party has failed to use ordinary care to prevent an injury to himself, unless the injury be wilfully and wantonly inflicted upon him. Thus, one is bound at all times to exercise ordinary care for his own safety, even before the negligence of another is or should be apparent, and this duty should not be confused with that other duty imposed by law upon all persons to avoid the negligence of another where the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence." The headnote of that case reads: "One who knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, cannot hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter's negligence." To the same effect see City of Columbus v. Griggs, 113 Ga. 597 (38 S.E. 953, 84 Am. St. Rep. 257). In Culbreath v. *455 Kutz Company, 37 Ga. App. 425 (2, 3) (140 S.E. 419) it is held: "2. One who knowingly and voluntarily takes a risk of injury to his person, the danger of which is so obvious that no person of ordinary prudence would subject himself thereto, cannot hold another liable for damages from injuries thus occasioned.
"3. In a suit against the owners and the tenant of a building to recover damages for injuries sustained by the plaintiff, a window washer, in falling to the ground while washing from the outside a window of the fourth story, where it appears from the allegations of the petition that the plaintiff fell because, without testing or examining the strength of the window for that purpose, he voluntarily chose to support himself by holding to parts thereof which were insecure and inadequate for such use, held, the petition affirmatively shows such negligence or want of care on the part of the plaintiff as to be a bar to recovery." In James v. Smith, 92 Ga. App. 131 (88 S.E.2d 179), this court held that if a person was the author of his own misfortune he could not recover. See also Wilkinson v. Rich's, Inc., 77 Ga. App. 239 (48 S.E.2d 552); Johns v. Georgia Ry. &c. Co., 133 Ga. 525 (66 S.E. 269); Beasley v. Elder, 88 Ga. App. 419 (76 S.E.2d 849); Briscoe v. Southern Ry. Co., 103 Ga. 224 (28 S.E. 638); Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72 (190 S.E. 354); Mattox v. Atlanta Enterprises, 91 Ga. App. 847 (87 S.E.2d 432); Sheats v. City of Rome, 92 Ga. 535 (17 S.E. 922), and Harris v. Edge, 92 Ga. App. 827 (2) (90 S.E.2d 47).
It seems to us that the danger incident to the use of the materials hoist as a means of getting to the upper floors of the building under construction was open and obvious. The petition describes in detail the lack of various safety devices which would have prevented a person from falling off the hoist. The petition described it as "dangerous," "unsafe for the transportation of passengers" and unfit for anyone to ride on as a passenger because of the total absence of handrails, barriers, gates or other safeguards. No emergency existed requiring the plaintiff's son to ride on the materials hoist. No one ordered him to ride on it. It is not alleged that the hoist was the only means of getting to the upper floors of the building. In the final analysis it is perfectly clear from the allegations of the petition that the plaintiff's son, with full knowledge of the conditions and in broad day-light, *456 voluntarily assumed the risk incident to riding on the materials hoist, and took the chance of being able to make the ride successfully.
The trial court did not err in sustaining the general demurrer to the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4216626/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
FRED POTOK, INDIVIDUALLY AND AS : No. 207 EAL 2017
TRUSTEE OF THE FLOORGRAPHICS, :
INC. MINORITY SHAREHOLDER TRUST :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
RICHARD G. REBH, RICHARD REBH, :
ELIZABETH REBH, EXECUTOR OF THE :
ESTATE OF GEORGE L. REBH, :
DECEASED, MICHAEL DEVLIN AND :
YVES ANIDJAR, NEWS AMERICA :
MARKETING IN-STORE SERVICES, LLC, :
NEWS AMERICA MARKETING IN- :
STORE LLC, NEWS AMERICA :
MARKETING IN-STORE SERVICES, INC. :
:
:
PETITION OF: FRED POTOK, :
INDIVIDUALLY AND AS TRUSTEE OF :
THE FLOORGRAPHICS, INC. MINORITY :
SHAREHOLDER TRUST :
FRED POTOK, INDIVIDUALLY AND AS : No. 208 EAL 2017
TRUSTEE OF THE FLOORGRAPHICS, :
INC. MINORITY SHAREHOLDER TRUST :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
RICHARD REBH, ELIZABETH REBH, :
EXECUTOR OF THE ESTATE OF :
GEORGE L. REBH, DECEASED, :
MICHAEL DEVLIN, YVES ANIDJAR, :
NEWS AMERICA MARKETING IN- :
STORE SERVICES, L.L.C., NEWS :
AMERICA IN-STORE L.L.C. AND NEWS :
AMERICA MARKETING IN-STORE :
SERVICES, INC. :
:
:
PETITION OF: FRED POTOK, :
INDIVIDUALLY AND AS TRUSTEE OF :
THE FLOORGRAPHICS, INC. MINORITY :
SHAREHOLDER TRUST :
ORDER
PER CURIAM
AND NOW, this 31st day of October, 2017, the Application to File Under Seal is
GRANTED and the Petition for Allowance of Appeal is DENIED.
[207 EAL 2017 and 208 EAL 2017] - 2 | 01-03-2023 | 10-31-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/2394340/ | 937 A.2d 487 (2007)
Linda K. KOTZBAUER, Appellee
v.
Robert J. KOTZBAUER, Appellant.
Superior Court of Pennsylvania.
Argued September 19, 2007.
Filed November 28, 2007.
*488 Joseph M. Spratt, Bridgewater, for appellant.
Terri J. Mitko, Beaver, for appellee.
BEFORE: ORIE MELVIN, BOWES and McCAFFERY, JJ.
OPINION BY BOWES, J.:
¶ 1 Robert Kotzbauer ("Father") appeals from the March 13, 2007 order directing him to make monthly support payments for his nineteen-year-old daughter, Kaitlin Kotzbauer, who resides with Appellee Linda Kotzbauer ("Mother"). After careful review, we affirm.
¶ 2 The trial court summarized the relevant facts as follows:
Mother requested support for the parties' daughter Kaitlin Kotzbauer, beyond the normal age for emancipation. Kaitlin is 18 years old and a high school graduate. When Kaitlin was in high school, she was diagnosed with epilepsy. In February 2004, she underwent brain surgery for the seizures she was suffering. Prior to her surgery, she was a normal, active teenager with no learning disabilities or memory problems. Following this surgery, she began to have problems with her memory and ability to focus. She needed learning support for all, but one, of her classes. Her grades dropped. Additionally, she needed more sleep, and was tired all the time. She continued to have seizures, though they are currently under control. She now suffers from severe headaches, including migraine headaches, and she remains at risk for seizures.
In addition to epilepsy, Kaitlin also suffers from cavernous malformations on her brain. At least one of those malformations had been leaking blood. She has undergone several MRI's to check on these malformations. The malformations do not presently require surgery.
Kaitlin is being monitored by Dr. [Dade] Lunsford for her brain malformations. He consults with other doctors on Kaitlin's condition. Kaitlin also sees a headache specialist, Dr. [Barbara] Vogler. If Kaitlin's brain malformations have residual bleeding in the future, she may need Gamma Knife Radiosurgery. She takes several prescriptions and over the counter medications for her conditions. Mother pays approximately $200-$250 per month on co-pays for doctor visits and medications for Kaitlin. Mother watches Kaitlin closely on a daily basis, to supervise her medication regimen and her behavior. Kaitlin is subject to mood swings, rapid heartbeat, and possibly becoming suicidal or extremely depressed.
Kaitlin is currently attending the Butler County Community College in Cranberry Township as a full-time student, in part, so that she may remain on Father's health insurance. She is taking the minimum number of credits, 12, because school work is difficult for her. At the time of the [support] hearing, she had a D in two of her four classes. She is afraid to go away to school on her own, without someone to watch over her and her medical treatment. Neither she, nor her mother, believes that Kaitlin is capable of living on her own. Her college is paid by a[n] UGMA account set up for her when she was little.
Kaitlin took part in a theater production in July 2006, but was unable to participate in the production in January 2007. Kaitlin works at Linens and Things for an average of 16 hours per week, where she earns $7.38 per hour. She does not have full-time hours available to her. She uses her money to pay for car insurance, cell-phone bills, and *489 gas. She relies on her mother for food, clothing, shelter, and her medication.
Kaitlin has headaches three to four times per week, and once a week she suffers from a migraine headache. Several times she has left work because of her headaches; in fact, someone had to pick her up from work because she was unable to drive. Occasionally Mother sleeps in bed with Kaitlin, when Kaitlin is sick, in case Kaitlin has to go to the hospital.
Kaitlin is able to drive, but if she gets a severe headache, her mother or her older brother, Jason, must be available to pick her up from work or school. Her headaches have gotten significantly worse from April 2006 through September 2006.
Kaitlin is in the process of applying for social security disability benefits. No decision has been made regarding her eligibility for those benefits.
Mother is employed as a pilot crew scheduler for U.S. Airways. She works 40 hours per week and earns $22.77 per hour. She is not paid for the time she takes off to take Kaitlin to her medical appointments. Her net income is $3,014 per month.
Father is employed as a teacher for the Moon Area School District. He is paid a salary. His net income is $4,428 per month. He provides medical insurance to Kaitlin through his employer at no cost to him.
Trial Court Opinion, 5/18/07, at 2-4.
¶ 3 Following a December 5, 2006 evidentiary hearing, the trial court entered a support order directing Father to pay $398 per month for his daughter's care. Father's motion for reconsideration was denied, and this timely appeal followed, wherein he contends that the trial court erred in: (1) finding that Kaitlin has a health condition that prevents her from obtaining profitable employment at a supporting wage; (2) finding that the evidence was sufficient to continue Father's child support obligation; (3) failing to require Mother to offer uncontradictory medical opinions regarding Kaitlin's physical infirmities; and (4) applying the Pennsylvania child support guidelines in a case where the subject of the support order is over eighteen years old, has graduated from high school, and has a part-time job.
In reviewing an order entered in a support proceeding, an appellate court has a limited scope of review. The trial court possesses wide discretion as to the proper amount of child support and a reviewing court will not interfere with the determination of the court below unless there has been a clear abuse of discretion. Commonwealth ex rel. Berry v. Berry, 253 Pa.Super. 268, 384 A.2d 1337 (1978). The function of the appellate court is to determine whether there is sufficient evidence to sustain the order of the hearing judge. Commonwealth ex rel. O'Hey v. McCurdy, 199 Pa.Super. 115, 184 A.2d 291 (1962).
Commonwealth ex rel. Cann v. Cann, 274 Pa.Super. 274, 418 A.2d 403, 404-405 (1980); accord Crawford v. Crawford, 429 Pa.Super. 540, 633 A.2d 155 (1993) (in challenging the validity of a support order, the appellant must demonstrate by clear and convincing evidence that an abuse of discretion has occurred). An abuse of discretion is not merely an error of judgment; rather, it occurs when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, bias, or ill will. In the Interest of M.S.K., 2007 Pa. Super. 323, 936 A.2d 103.
¶ 4 At the outset, we recognize that as a general rule, the duty to support a child ends when the child turns eighteen or graduates from high school. Hanson v. *490 Hanson, 425 Pa.Super. 508, 625 A.2d 1212 (1993). However, pursuant to 23 Pa.C.S. § 4321(3), a parent may be required to support a child who, upon reaching the age of majority, has a mental or physical condition that prevents the child from being self-supporting. Id. "To determine if an order of support is appropriate, the test is whether the child is physically and mentally able to engage in profitable employment and whether employment is available to that child at a supporting wage." Id. at 1214.
¶ 5 Father's first three arguments are interrelated and will be addressed seriatim. The crux of Father's position is that there was insufficient evidence to sustain a finding that Kaitlin has a medical condition that prevents her from obtaining profitable employment at a supporting wage. In leveling this claim, Father argues that: (1) Mother failed to prove that Kaitlin is not emancipated because there was no expert testimony indicating that Kaitlin cannot live independently of Mother; (2) Dr. Lunsford had very little contact with Kaitlin prior to the evidentiary hearing and was unqualified to render an opinion as to how Kaitlin's brain malformations and seizure disorder affect her daily activities; and (3) the trial court ignored testimony that Kaitlin has an "active lifestyle and good health." Father's brief at 15.
¶ 6 The following facts are relevant to our disposition of this issue. At the evidentiary hearing, Mother, Kaitlin, and Cynthia Dewyer, the assistant manager at the Linens `N Things store in Cranberry, all testified regarding Kaitlin's medical problems. Ms. Dewyer stated that Kaitlin has worked at the store for approximately eighteen months, that Kaitlin has "had several migraines while . . . at work," and that on various occasions, Kaitlin has had to miss work, leave early, or take a thirty-minute break due to a migraine headache. N.T. Hearing, 12/5/06, at 5. When asked to describe how these headaches affect Kaitlin's job performance, Ms. Dewyer responded:
She can't concentrate. She basically almost curls into a ball when [the headaches] are very severe, which has happened twice. The one time she was writing, and you couldn't read anything that she wrote. She was missing letters off of words. It made no sense. The words were going down the page at an angle, just nothing made sense.
Id. at 6. Ms. Dewyer also indicated that Kaitlin currently works between sixteen to twenty hours per week, that no additional hours are being offered to her at this time, and that the company actually suggested that Kaitlin take a leave of absence, which Kaitlin has declined.
¶ 7 Mother confirmed that Kaitlin had left work early on multiple occasions after suffering debilitating migraine headaches and testified that Kaitlin takes numerous medications that make her "extremely tired." Id. at 33. Mother spends approximately $240 per month in co-payments for medications; Kaitlin depends on her mother to monitor her medicinal intake and schedule doctor appointments. Id. at 36, 41. In spite of her health problems, Kaitlin "tries very, very hard to be independent" and earns enough money through her part-time job to pay for her car insurance, cellular telephone bills, and occasional lunches at Butler County Community College. Id. at 42.
¶ 8 Finally, Kaitlin testified that as a result of her condition, she has earned poor grades at college and is essentially dependent on her mother, who provides food, clothing, and medicine for Kaitlin and who ensures that Kaitlin takes her medicine at the appropriate times. When asked to describe her migraine headaches, Kaitlin answered:
*491 [W]hen I do get a headache, I get what's called tunnel vision where I can't-I don't have any peripheral vision whatsoever. I get very nauseous. I get numbness in my hands and my feet and in my mouth. I can't talk. I can't really understand a lot of things that are going on around me. I can't write. I have a very hard time creating any sentence to be able to communicate with people. I stagger when I walk, and I become very scared. I get very, very emotional. I sometimes cry, and I can't stop.
Id. at 65. Kaitlin further testified that she suffers approximately three to four headaches per week and that she telephones Mother frequently to report on her physical status whenever she is away from home. On cross-examination, Kaitlin conceded that she has a valid driver's license, that she is capable of driving herself to work and school, that she went deer hunting shortly before the evidentiary hearing, and that she previously appeared as a featured dancer in various on-stage productions at a local theater.
¶ 9 Father also took the stand, stating that he and Kaitlin have a very strained relationship. He proffered that Kaitlin rarely telephones or visits him and that during a recent visit, she asked whether he planned to retire, because his retirement may affect her health insurance. Although Father acknowledged that Kaitlin has brain malformations, that she underwent brain surgery in 2004 after suffering a seizure, and that she now takes medications and has annual magnetic resonance imaging ("MRI") scans to monitor her condition, Father's counsel suggested throughout Mother's case-in-chief that Kaitlin has exaggerated the frequency and magnitude of her headaches. On appeal, Father continues in this vein, arguing that Mother is attempting to "manipulate the Court system" by needlessly prolonging his child support obligation. Father's brief at 6.
¶ 10 As noted above, Father presently contends that the evidence was insufficient to sustain the trial court's determination for three reasons. Initially, Father argues that Mother could not satisfy her burden of proof in this action absent expert testimony that Kaitlin's health disorders prevent her from earning a supporting wage. Father does not cite any pertinent legal authority for this proposition; rather, he identifies similar cases where physicians testified at the support hearing and suggests that expert medical testimony is required in every case where support is sought under 23 Pa.C.S. § 4321(3).[1] We disagree.
¶ 11 Like the trial court, we uncovered no case law that supports Father's position. Moreover, we decline to fault Mother for failing to call an expert witness when it was undisputed that the parties' child underwent brain surgery after developing seizures, and three lay witnesses, Kaitlin, Mother, and Ms. Dewyer, testified that Kaitlin cannot maintain full-time employment because she suffers from acute migraine headaches that frequently interfere with her existing work schedule. The trial court had the benefit of viewing these witnesses and was free to accept their testimony. See McClain v. McClain, 872 A.2d 856 (Pa.Super.2005) (fact-finder is free to weigh the evidence presented and assess its credibility).
¶ 12 In a related argument, Father asserts that Dr. Lunsford, a neurosurgeon *492 who was deposed in this matter and drafted two letters on Kaitlin's behalf at Mother's request,[2] was unqualified to render a competent opinion on any relevant issues at the support hearing because Dr. Lunsford conceded during his deposition that he did not perform the 2004 surgery and that he examined Kaitlin only one time. Consistent with this view, Father continues that his support obligation should be terminated because the trial court "relied exclusively on Dr. Lunsford's medical opinion as to [Kaitlin's] inability to care for herself. . . ." Father's brief at 8.
¶ 13 As a preliminary matter, we agree with Father that Dr. Lunsford's deposition testimony and correspondence had little probative value because Dr. Lunsford had limited knowledge of Kaitlin's condition prior to the support hearing, and his letters simply conveyed hearsay information provided by Mother for use at the support hearing. Nevertheless, we decline to grant relief on this issue because the record demonstrates that the trial court considered Dr. Lunsford's observations only for the purpose of verifying that Kaitlin has brain malformations, that she remains at risk of having seizures, and that she is not a candidate for gamma knife radiosurgery at this time. See Trial Court Opinion, 5/18/07, at 6. Contrary to Father's position, Dr. Lunsford did not offer an expert opinion regarding Kaitlin's ability to support herself, and the trial court did not rely exclusively upon Dr. Lunsford's letters and deposition testimony in determining that Kaitlin is currently unable to earn a supporting wage. The court explained its decision regarding that issue as follows:
We found the testimony of Kaitlin, her mother (the Plaintiff), and her employer, Cynthia Dewyer from Linens and Things, to be credible. We do not believe that Kaitlin can work 40 hours per week, due to her health condition, even if 40 hours per week were available to her. We also find that Kaitlin does not have 40 hours of work available to her at this time. Testimony revealed that Kaitlin still relies on her parents for her medical insurance and most of her daily needs. She is not capable of providing for herself at this time. She does not have medical insurance available to her, which she direly needs and which her Father can provide at no cost. She has extraordinary medical bills each month for her co-pays and prescriptions, for which she cannot pay. Thus, we held that Kaitlin is not emancipated at this time.
. . . .
[Father] is incorrect in stating that no expert testimony was presented regarding Kaitlin's medical condition. Dr. Lunsford testified that Kaitlin has a condition called multiple cavernous malformation of the brain. He also noted that she has other issues associated in some patients with cavernous malformations, a history of seizures and headaches. While she is not a candidate for gamma knife radiosurgery at this time, she is being treated by medical neurology for *493 management of her headache syndrome and is being observed under Dr. Lunsford's care. Dr. Lunsford further testified that whether Kaitlin could continue to work depends on the frequency and severity of the headache and whether working exacerbates the headache. Dr. Lunsford also testified about the side effects of her medications, and observed that Kaitlin remains at risk for seizures.
Although the doctor did not give an expert opinion on whether Kaitlin could continue to work, Kaitlin, her employer, and her mother all testified that Kaitlin's headaches, and the side effects of her medications, affect her ability to work. This is consistent with patients who suffer from her condition.
Trial Court Opinion, 5/18/07, at 5-6 (citations to record omitted). As the record fully supports the trial court's conclusions and establishes that Dr. Lunsford did not offer an expert opinion as to whether Kaitlin was capable of self-support, Father's second claim is meritless.
¶ 14 Father's third argument is that the trial court abused its discretion in continuing his support obligation because Kaitlin admitted on cross-examination that she recently went deer hunting, danced in theater productions, attended a pool party, and drives an automobile on a regular basis. See Father's brief at 14-15. Father contends that these activities, coupled with Ms. Dewyer's testimony that Kaitlin has only had to leave work three times in the last eighteen months due to headaches, demonstrate that Kaitlin is in good health and maintains an "active lifestyle." Id. at 15.
¶ 15 "`Emancipation' is a question of fact to be determined by the circumstances presented in each case." Geiger v. Rouse, 715 A.2d 454, 458 (Pa.Super.1998) (quoting Maurer v. Maurer, 382 Pa.Super. 468, 555 A.2d 1294, 1297-98 (1989)). In the instant case, the trial court heard unrebutted testimony that Kaitlin's migraines have a profound impact on her daily activities, as she must take prescription medicines that drain her energy. The fact that Kaitlin occasionally engages in activities that require physical exertion does not prove that she is emancipated. Furthermore, Kaitlin testified that in recent months, her headaches have become increasingly severe and "much more frequent," and as a result, she is no longer capable of dancing in the local theater productions. N.T. Hearing, 12/15/06, at 100. Thus, in light of the record, we will not find an abuse of discretion where, as here, there was ample evidence to sustain the trial court's ruling.
¶ 16 Father's final contention on appeal is that the trial court erred in applying the Pennsylvania child support guidelines in this case because Kaitlin is in college, her tuition is paid out of a Uniform Gifts to Minors Act ("UGMA") account,[3] and she has a part-time job. Father argues that given these facts, the trial court should have employed a "needs-based" analysis to determine his support obligation. Father's brief at 21.
¶ 17 Upon review, we find that no relief is due. In his three-paragraph argument on this issue, Father does not explain why the existing award is excessive, and in any event, the trial court correctly observed that the guidelines are applicable when a party requests support for an adult child who has a mental or physical condition that prevents the child from earning a *494 supporting wage. See Crawford v. Crawford, supra at 163-64. Accordingly, we see no reason to disturb the order in question.
¶ 18 Order affirmed.
NOTES
[1] Section 4321(3) states, "Parents may be liable for the support of their children who are 18 years of age or older."
[2] Dr. Lunsford's letters were entered into evidence without objection at the conclusion of the December 5, 2006 hearing. The first letter stated that Kaitlin is dependent on Mother for daily care, and the second letter indicated that Kaitlin is not capable of supporting herself. At the hearing, Mother admitted that she asked Dr. Lunsford to write those letters to establish Kaitlin's medical condition for the purpose of obtaining child support. See N.T. Hearing, 12/5/06, at 55. The deposition testimony, which was admitted into evidence at a subsequent proceeding, offered little insight into Kaitlin's ability to support herself, as Dr. Lunsford admitted that he had never treated Kaitlin and examined her on only one occasion.
[3] An UGMA account is a vehicle for giving property to a minor; the custodian has a fiduciary duty to manage, invest, and use the funds for the minor's benefit and act in the minor's interest. See Sutliff v. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987); see also 55 Pa. Code § 178.78. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724628/ | 289 So. 2d 737 (1974)
GAINES CONSTRUCTION COMPANY, a Florida Corporation, Petitioner,
v.
James SOTTILE, Jr., Respondent.
No. 44401.
Supreme Court of Florida.
January 23, 1974.
Certiorari denied. 281 So. 2d 558.
CARLTON, C.J., and ROBERTS, ADKINS and McCAIN, JJ., concur.
ERVIN, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262570/ | 84 Cal.Rptr.2d 586 (1999)
71 Cal.App.4th 1416
Lawrence S. KRAIN, Plaintiff and Appellant,
v.
MEDICAL BOARD of California, Defendant and Respondent.
Lawrence S. Krain, Petitioner,
v.
The Superior Court of the City and County of San Francisco, Respondent;
Medical Board of California, Real Party in Interest.
Nos. A083166, A083631, A084008.
Court of Appeal, First District, Division Five.
May 10, 1999.
As Modified on Denial of Rehearing June 8, 1999.
*587 Christie Gaumer, Attorney at Law, Los Angeles, Counsel for plaintiff and appellant and for petitioner.
Daniel E. Lungren, Attorney General, Bill Lockyer, Attorney General, Heidi R. Weisbaum, Deputy Attorney General, Counsel for defendant and respondent and for real party in interest.
No appearance for respondent San Francisco Superior Court.
Certified for Partial Publication.[*]
JONES, P.J.
This case concerns the revocation of the California medical license of Lawrence S. Krain, M.D. (Krain), by the Medical Board of California (the Board). Krain filed a petition for writ of mandamus in the superior court, seeking an order setting aside the Board's revocation of Krain's license. (See Code Civ. Proc, § 1094.5, subd. (a).) The superior court denied the petition. Krain then sought review in this court by petition for extraordinary writ of mandamus, in accordance with Business and Professions Code section 2337.[1] Krain also filed two notices of appeal. In the published portion of this opinion, we consider one area of Krain's petition: whether the Board properly based Krain's discipline at least in part on Krain's plea of guilty to soliciting the subornation of perjury. In the unpublished portion of this opinion, we dismiss Krain's appeals and address the remaining issues raised by Krain's petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Under the Medical Practice Act (MPA), section 2000 et seq., the Board is authorized to take action against any physician licensed in California "who is charged with unprofessional conduct." (§§ 2234, 2224.) On August 31, 1983, pursuant to its authority under the MPA, the Board filed an accusation seeking discipline against Krain's California medical license. The Board filed a supplemental accusation in May 1984, a second supplemental accusation in April 1992, a third supplemental accusation in July 1995, and a first amended accusation in March 1996.
The administrative hearing took place over a period of eight days in July 1996. On October 23, 1996, the Board issued its decision revoking Krain's medical license. The Board based this decision on two events. *588 The first basis was Krain's plea of guilty to soliciting the subornation of perjury in violation of Penal Code section 653f, subdivision (a). The second basis for the Board's decision was Krain's discipline in Illinois. Illinois disciplined Krain after a hearing officer found that Krain "suffered from a mental illness or disability which results in the inability to practice with reasonable skill and safety."
On December 31, 1996, Krain filed a petition for writ of mandate in the superior court challenging the Board's decision. On May 22, 1998, the superior court denied the petition and entered judgment on June 16, 1998. On June 29, 1998, Krain filed a motion for a new trial. The trial court denied the motion on August 26, 1998.
II. DISCUSSION
A. Dismissal of the Appeals[**]
B. The Writ Petition
1. Krain's Plea of Guilty to the Charge of Solicitation of Subornation of Perjury
The Board based Krain's discipline on two events. One basis for Krain's discipline was his plea of guilty to soliciting the subornation of perjury in violation of Penal Code section 653f, subdivision (a). Penal Code section 653f, subdivision (a), defines a "wobbler" offense. (See Pen.Code, § 653f, subd. (a) ["shall be punished by imprisonment in a county jail for not more than one year or in the state prison, or by a fine of not more than ten thousand dollars ($10,000), or the amount which could have been assessed for commission of the offense itself, whichever is greater, or by both the fine and imprisonment"].) Krain entered a plea of guilty to the solicitation offense as a felony. However, the superior court in that criminal proceeding, pursuant to its authority under Penal Code section 17, subdivision (b)(3), later reduced the conviction to a misdemeanor. Thereafter, the superior court permitted Krain to change his plea to not guilty, and the court dismissed the case against Krain. (See Pen. Code, § 1203.4, subd. (a).) Relying on sections 2236 and 2236.1, Krain argues that his expunged guilty plea cannot be used as a basis for discipline.
Section 2236 provides that "[t]he conviction of any offense substantially related to the qualifications, functions, or duties of a physician and surgeon constitutes unprofessional conduct within the meaning of this chapter.... A plea or verdict of guilty or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this section and Section 2236.1. The record of conviction shall be conclusive evidence of the fact that the conviction occurred." (§ 2236, subds.(a) & (d).) Section 2236.1 provides in part as follows: "(d)(1) Discipline may be ordered in accordance with Section 2227 ... when the time for appeal has elapsed, the judgment of conviction has been affirmed on appeal, or an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under Section 12034 of the Penal Code allowing the person to withdraw his or her plea of guilty and to enter a plea of not guilty, setting aside the verdict of guilty, or dismissing the accusation, complaint, information, or indictment. (2) The issue of penalty shall be heard by an administrative law judge from the Medical Quality Hearing Panel sitting alone Or with a panel of the division, in the discretion of the division. The hearing shall not be had Until the judgment of conviction has become final or, irrespective of a subsequent order under Section 12034 of the Penal Code, an order granting probation has been made suspending the imposition of sentence;..." (§ 2236.1, subd. (d)(1) & (2), italics added.)
Krain contends that even though subdivision (d) of section 2236.1 does not specifically refer to felony convictions, subdivision (d) is implicitly limited to felony convictions because subdivisions (a) and (b) of that statute are limited in that fashion. (§ 2236.1, subds.(a) & (b).) Subdivision (a) requires the automatic suspension of a physician's certificate when the physician is "incarcerated after conviction of a felony. ..." and subdivision (b) provides for the suspension of the physician's license when a felony conviction is "substantially related to the qualifications, functions, or duties of a physician and surgeon...." (§ 2236.1, subds.(a) & (b).)
*589 Certainly, the express language of section 2236.1, subdivision (d), does not support Krain's argument. Subdivision (d) unlike subdivisions (a) and (b) does not refer to felony convictions. (Compare § 2236.1, subds. (a) & (b) with § 2236.1, subd. (d).) Moreover, section 2236.1, subdivision (d) refers to dismissal of "the accusation" under the authority of Penal Code section 1203.4. An accusation cannot be used to charge a felony. (Pen.Code, § 737 ["All felonies shall be prosecuted by indictment or information, except as provided in Section 859a. A proceeding pursuant to Section 3060 of the Government Code shall be prosecuted by accusation."].) Thus, the reference to "accusation" in subdivision (d) of section 2236.1 provides additional indication that subdivision (d) is not limited to felony convictions.
Moreover, Krain incorrectly suggests that in order for the Board to rely on an expunged misdemeanor conviction, section 2236 must expressly authorize discipline on that basis. Decisions of the California courts have "consistently upheld denial of a license or the right to pursue a particular profession on the basis of an expunged conviction" and have done so without relying on statutory language expressly permitting consideration of expunged convictions. (See Adams v. County of Sacramento (1991) 235 Cal. App.3d 872, 880-881, 1 Cal.Rptr.2d 138 (Adams).) In Adams, the Third District summarized these decisions:
"In re Phillips [1941] 17 Cal.2d 55 [109 P.2d 344] involved the disbarment of an attorney based on a felony conviction which was later expunged pursuant to Penal Code section 1203.4. The Supreme Court rejected the attorney's claim [that] expungement eliminated the conviction as a ground for disbarment. According to the court, `final judgment of conviction is a fact; and its effect cannot be nullified ... either by the order of probation or by the later order dismissing the action after judgment.' (Id. at p. 61 [109 P.2d 344].)"
"In Meyer v. Board of Medical Examiners [1949] 34 Cal.2d 62 [206 P.2d 1085], the Board of Medical Examiners had suspended the license of a physician for unprofessional conduct because of a felony conviction later expunged. At the time, Business and Professions Code section 2383 defined unprofessional conduct as including `"conviction... of any offense involving moral turpitude....'" (Id. at p. 64 [206 P.2d 1085].) Following the reasoning of Phillips, the Supreme Court upheld the suspension, concluding discipline by the board is not the type of `penalty' or `disability' released by Penal Code section 1203.4. (Id. at p. 67 [206 P.2d 1085].)"
"In Copeland v. Dept. of Alcoholic Bev. Control [1966] 241 Cal.App.2d 186 [50 Cal. Rptr. 452], the petitioners challenged revocation of their license to sell alcoholic beverages based on a felony conviction later set aside. The revocation had been pursuant to Business and Professions Code section 24200, subdivision (d) which provided as a ground any `"plea, verdict, or judgment of guilty to any public offense involving moral turpitude."' (Id. at p. 187 [50 Cal.Rptr. 452].) The court of appeal upheld the revocation, reasoning: `As used in section 1203.4 of the Penal Code the words `penalties and disabilities' have reference to criminal penalties and disabilities or to matters of a kindred nature. But the disciplining of licensees such as the petitioners herein is for the protection of the public in the exercise of the police power and not for the purpose of punishing any licensee. It is settled that proceedings to suspend or revoke business or professional licenses are not included among the penalties and disabilities that are released by a dismissal pursuant to section 1203.4' (Id. at p. 188 [50 Cal.Rptr. 452], citations omitted.)"
"Finally, in Ready v. Grady (1966) 243 Cal.App.2d 113, 52 Cal.Rptr. 303, an insurance agent's license was revoked because of an expunged felony conviction. Relying on the foregoing decisions, the Court of Appeal upheld the revocation indicating `[i]t is now well settled that the suspension or revocation of a license to practice a profession is not a penalty or disability within the purview of section 1203.4 of the Penal Code.' (Supra, at p. 116 [52 Cal. Rptr. 303].) The purpose of such revocation `is not the punishment of the licensee, but rather the protection of the public' (Ibid.)" (Adams, supra, 235 Cal.App.3d at pp. 880-881, 1 Cal.Rptr.2d 138.)
The Adams decision added to this line of authority. The plaintiff in Adams had pleaded *590 guilty to a felony offense in Kansas that was later expunged. (Adams, supra, 235 Cal.App.3d at p. 877, 1 Cal.Rptr.2d 138.) The Adams decision concluded that Government Code section 1029, subdivision (a) prevented the plaintiff from serving as a peace officer because that statute disqualifies persons who have "been convicted of a felony in this state or any other state." (Adams, supra, 235 Cal.App.3d at p. 877, 1 Cal.Rptr.2d 138.)
These cases evidence a uniform trend to construe statutes as permitting discipline based on an expunged conviction absent some statutory language precluding the use of such convictions. (See Copeland, supra, 241 Cal.App.2d at pp. 188-189, 50 Cal.Rptr. 452.) Sections 2236 and 2236.1 do not expressly limit the use of expunged misdemeanor convictions. The MPA as a whole contains no such limitation either. To the contrary, the MPA's overall focus on physician conduct is wholly consistent with our interpretation of section 2236 and section 2236.1. For example, section 2234, subdivision (e), defines unprofessional conduct as including "[t]he commission of any act involving dishonesty or corruption which is substantially related to the qualifications, functions, or duties of a physician and surgeon." Thus, conduct which may be criminal can form the basis for discipline under section 2234 even if the physician was not charged with or convicted of a crime. Permitting discipline on the basis of a plea of guiltyan admission of certain conduct (see Adams, supra, 235 Cal.App.3d at p. 882, 1 Cal. Rptr.2d 138)regardless of whether the plea is later set aside under Penal Code section 1203.4 similarly represents a focus on the physician's conduct, not the criminal consequences of that conduct.
Krain argues, however, that prior to its amendment in 1994, section 2236 expressly permitted discipline on the basis of an expunged conviction without regard for whether the conviction was a felony or a misdemeanor. Krain therefore contends that his plea of guilty cannot form the basis for discipline because the 1994 amendments removed that express permission from section 2236.
We disagree. Section 2236 was amended in 1994 by Senate Bill No. 1775 (1993-1994 Reg. Sess.) Prior to this amendment, section 2236 provided, as it does today, that "[t]he conviction of any offense substantially related to the qualifications, functions, or duties of a physician and surgeon constitutes unprofessional conduct within the meaning of this chapter." (Stats.1980, ch. 1313, § 2, p. 4474 [§ 2236, subd. (a)].) However, unlike section 2236 in its current form, then-section 2236 provided, much like section 2236.1 now provides, that "[d]iscipline may be ordered in accordance with Section 2227, or the Division of Licensing may order the denial of the license when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under the provisions of Section 12034 of the Penal Code allowing such person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, complaint, information, or indictment." (Stat.1980, ch. 1313, § 2, p. 4474 [§ 2236, former subd. (c)], italics added.)
The evolution of Senate Bill No. 1775 clarifies that the revisions which that bill ultimately made to section 2236 were not intended to change the consequences of a misdemeanor conviction even if the trial court had set aside the conviction under the authority of Penal Code section 1203.4. In its initial incarnation, Senate Bill No. 1775 did not propose a change to section 2236. (See Sen. Bill No. 1775 (1993-1994 Reg. Sess.) as introduced on Feb. 24, 1994.) The first version of Senate Bill No. 1775 that suggested an amendment to section 2236 also proposed the creation of section 2236.1. (See Sen. Bill No. 1775 (1993-1994 Reg. Sess.) as amended Apr. 12, 1994.) This version of Senate Bill No. 1775 proposed removing the language in section 2236 that referred to Penal Code section 1203.4 and proposed including similar language in section 2236.1.[4] (See Sen. Bill No. 1775 (1993-1994 Reg. Sess.) as amended Apr. 12, 1994.) However, that proposed version of section 2236.1 would have addressed all convictions (not *591 just felonies) that were substantially related to the qualifications, functions, or duties of a physician and surgeon. (See Sen. Bill No. 1775 (1993-1994 Reg. Sess.) as amended Apr. 12, 1994.) Later versions of Senate Bill No. 1775 limited the first two subdivisions of proposed section 2236.1 to felonies (Sen. Bill No. 1775 (1993-1994 Reg. Sess.) as amended June 29, 1994), then removed this limitation (Sen. Bill No. 1775 (1993-1994 Reg. Sess.) as amended Aug. 19, 1994) and then again imposed a felony limitation on subdivisions (a) and (b) of section 2236.1 (Sen. Bill No. 1775 (1993-1994 Reg. Sess.) as amended Aug. 25, 1994). Despite the many variations on section 2236.1, the legislative history contains no indication that Senate Bill No. 1775 was intended to change the affect of dismissal under Penal Code section 1203.4. To the contrary, much of the legislative history indicates that Senate Bill No. 1775 made primarily technical changes to section 2236, (see, e.g., Bill Analysis of Sen. Bill No. 1775 as amended June 2, 1994 ["clean-up"]; Bill Analysis of Sen. Bill No. 1775 as amended June 29, 1994 [same]; Assem. Com. on Health, Analysis of Sen. Bill No. 1775 as amended Aug. 19, 1994 [same]) and that the nontechnical changes strengthened, rather than weakened, the Board's disciplinary powers (see, e.g., Analysis of Sen. Bill No. 1775 (1993-1994 Reg. Sess.) as amended June 2, 1994 ["increase penalties for physicians and nonphysicians who commit specified offenses;" "creat[e] an automatic suspension of a physician's license for certain felony convictions"]; Analysis of Sen. Bill No. 1775 (1993-1994 Reg. Sess.) as amended June 29, 1994 [same]; Assem. Com. on Health, Analysis of Sen. Bill No. 1775 (1993-1994 Reg. Sess.) as amended Aug. 19, 1994 [same]). Thus, the legislative history suggests that Senate Bill No. 1775 was not intended to lessen the potential for discipline when a misdemeanor conviction is set aside under Penal Code section 1203.4. The fact that a misdemeanor conviction is expunged under the authority of Penal Code section 1203.4 does not preclude the Board's reliance on that conviction for purposes of discipline under section 2236.
However, this conclusion does not completely resolve the question of whether, in imposing discipline, the Board properly relied on Krain's plea of guilty to the charge of soliciting the subornation of perjury. Krain's conviction may properly form the basis of discipline only if it is "substantially related to the qualifications, functions, or duties of a physician and surgeon ...." (§ 2236, subd. (a).) Whether such a relationship exists is a question of law "for this court's independent determination. [Citations.]" (Gromis v. Medical Board (1992) 8 Cal.App.4th 589, 598, 10 Cal.Rptr.2d 452.)
Krain contends that his conviction for solicitation of subornation of perjury does not bear a substantial relationship to his qualifications as a physician. Based on Windham v. Board of Medical Quality Assurance (1980) 104 Cal.App.3d 461, 163 Cal.Rptr. 566 (Windham), we reject Krain's contention. In Windham, a physician was disciplined as a result of his conviction for tax fraud. In that case, the physician argued "that while tax fraud may adversely reflect on his moral character, it is not the type of transgression which reflects on his professional qualifications, functions or duties." (Id. at p. 470, 163 Cal.Rptr. 566.) The Court of Appeal rejected this argument: "First of all, we find it difficult to compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients. In this connection, however, we should point out that today's doctor deals financially with the government state, local and federalin many ways that have nothing to do with his own personal tax obligation.... [¶] ... Above all, however, there is the relation between doctor and patient. It is unnecessary to describe the extent to which that particular relationship is based on utmost trust and confidence in the *592 doctor's honesty and integrity." (Windham, supra, 104 Cal.App.3d at p. 470, 163 Cal. Rptr. 566.)
Krain's conviction for soliciting the subornation of perjury, like the tax fraud conviction at issue in Windham, involves dishonesty. We agree with the reasoning of Windham: the intentional solicitation to commit a crime which has as its hallmark an act of dishonesty cannot be divorced from the obligation of utmost honesty and integrity to the patients whom the physician counsels, as well as numerous third-party entities and payors who act on behalf of patients. (Windham, supra, 104 Cal.App.3d at p. 470, 163 Cal.Rptr. 566; see also Matanky v. Board of Medical Examiners (1978) 79 Cal.App.3d 293, 305-306, 144 Cal. Rptr. 826.) Krain's plea of guilty to solicitation of subornation of perjury is substantially related to his qualifications as a physician.
Krain also complains that no evidence, other than the guilty plea itself, was offered on the subject of "substantial relationship." Krain contends that without additional evidence, the Board's decision effectively constitutes a presumption that a violation of Penal Code section 653f, subdivision (a) meets the substantial relationship test. Krain argues that the Board is not permitted to make such a presumption because section 2236.1 lists certain offenses that are conclusively presumed to meet the substantial relationship test and that list does not include violations of Penal Code section 653f. (§ 2236.1, subd. (c).)
Krain misperceives the purpose of the presumption created in subdivision (c) of section 2236.1. That presumption renders it unnecessary for the Board to hold a hearing on the issue of substantial relationship. (See § 2236.1, subd. (c).) In all other instances, a hearing is required. We find no indication that the hearing requirement imposes additional evidentiary requirements on the Board in deciding the substantial relationship issue.
Krain also contends that the Board was barred by collateral, promissory and equitable estoppel from finding that his conviction was substantially related to his qualifications as a physician. Krain's estoppel arguments rely on the trial court's express finding in Krain's criminal proceeding that "the crime to which [Krain] is going to plead guilty is not a crime that is associated with the practice of medicine." We initially respond that the trial court's finding does not appear to consider the precise question presented by section 2236whether the crime is "substantially related to the qualifications, functions, or duties of a physician and surgeon...." (See § 2236, subd. (a).)
We also reject Krain's reliance on these three forms of estoppel because his brief makes only "passing reference" to these issues without adequate argument or citation to authority. (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1, 33 Cal.Rptr.2d 838) "We will not develop [Krain's] arguments for [him], and therefore decline to reach [these] issues...." (Ibid.)
For the reasons we have just given, we conclude that Krain's conviction may properly be considered as a basis for discipline.
2.-5.[***]
III. DISPOSITION
We dismiss Krain's appeals and deny the petition for extraordinary writ of mandamus.
HANING, J., and STEVENS, J., concur.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II.A., B.2, 3, 4, and 5.
[1] Unless otherwise indicated, all further statutory references are to the Business and Professions Code.
[**] See footnote*, ante.
[4] In this variation of proposed section 2236.1, subdivision (b) of section 2236.1 would have provided: "If, after notice and opportunity to be heard (which hearing shall not be had until the judgment of conviction has become final, or, irrespective of any subsequent order under Section 1203.4 of the Penal Code, an order granting probation has been made suspending the imposition of sentence), the Division of Medical Quality finds that the crime of which the licensee was convicted, or the circumstances of its commission, is substantially related to the qualifications, functions, or duties of a physician and surgeon, the division shall enter an order revoking the physician and surgeon's certificate or suspending the licensee from practice for a specified time, according to the gravity of the crime and the circumstances of the case; otherwise the division shall dismiss the proceedings. In determining the extent of the discipline to be imposed in a proceeding pursuant to this article any prior discipline imposed upon the licensee may be considered."
[***] See footnote*, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262578/ | 83 Cal.Rptr.2d 882 (1999)
71 Cal.App.4th 519
The PEOPLE, Plaintiff and Respondent,
v.
Federico Lopez RAMIREZ, Defendant and Appellant.
No. F031267.
Court of Appeal, Fifth District.
April 16, 1999.
*883 Rudy Banuelos, Fresno, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, J. Robert Jibson and Jean M. Marinovich, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THAXTER, Acting P.J.
FACTS AND PROCEDURAL HISTORY
After a search of his residence revealed 16 ounces of methamphetamine, some cocaine, $2,035 cash and a .357 revolver, appellant Federico Lopez Ramirez was charged by complaint filed in Fresno County Municipal Court on November 8, 1994, with possession of cocaine for sale (Health & Saf.Code, § 11351, count one) and possession of methamphetamine for sale (Health & Saf.Code, § 11378, count two). The complaint also alleged as to both counts that appellant was personally armed with a firearm within the meaning of Penal Code[1] section 12022 and that appellant possessed 57 grams or more of methamphetamine within the meaning of section 1203.073, subdivision (b)(2). On December 8, 1994, after signing a change of plea form which included an immigration advisement, and after receiving additional advisements in open court, appellant pled guilty to count two and admitted the arming allegation. The remaining allegations were dismissed and there was a stipulated lid of five years in state prison. After being excluded from California Rehabilitation Center, appellant was sentenced to five years in state prison.
On June 2, 1998, while out on parole, appellant moved to vacate the judgment based upon the trial court's failure to advise him verbally of the immigration consequences of his plea. Appellant is not a citizen and was facing deportation. On June 22, 1998, the motion to vacate was denied. Appellant filed his timely notice of appeal on July 6, 1998.
DISCUSSION
Although appellant concedes the immigration advisement in the change of plea form contains all components of an adequate warning of the consequences for a noncitizen of pleading guilty to a felony offense, he argues section 1016.5 nonetheless requires a verbal advisement by the trial court of the immigration consequences of a plea.
Our reading of section 1016.5 does not bring us to the same conclusion. And we believe appellant has misconstrued the line of authority upon which he relies, including People v. Gontiz (1997) 58 Cal.App.4th 1309, 68 Cal.Rptr.2d 786, a decision out of the Third Appellate District. We begin with the statutory language.
Section 1016.5 provides in relevant part as follows:
"(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, ... the court shall administer the following advisement on the record to the defendant:
"If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."
*884 In the absence of advisements on the record, subdivision (b) of section 1016.5 presumes no advisement was given. Subdivision (b) also provides that the remedy for failing to give the advisement is to vacate the judgment which rests on the guilty plea. We note there is no language which states the advisements must be verbal, only that they must appear on the record and must be given by the court.
Our state Supreme Court has held a validly executed waiver form is a proper substitute for verbal admonishment by the trial court. (In re Ibarra (1983) 34 Cal.3d 277, 285-286, 193 Cal.Rptr. 538, 666 P.2d 980.) Particularly, in Ibarra, the court addressed constitutionally mandated advisements required under Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969) 1 Cal.3d 122, 81 Cal. Rptr. 577, 460 P.2d 449. It also stated in Ibarra:
"A sufficient waiver form can be a great aid to a defendant in outlining [a defendant's] rights. The defense attorney, who is already subject to a duty to explain the constitutional rights outlined in a proper waiver form to his client prior to the client's entering a plea, may even find it desirable to refer to such a form. Thus, a defendant who has signed a waiver form upon competent advice of his attorney has little need to hear a ritual recitation of his rights by a trial judge. The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney." (In re Ibarra, supra, at pp. 285-286, 193 Cal.Rptr. 538, 666 P.2d 980.)
Appellant argues this may be true for constitutionally mandated advisements, but not for legislatively mandated advisements where there is an express requirement that the trial court give the advisements "on the record." We disagree. Certainly constitutionally required mandates are equally as important as those mandated by statute. And, as we have noted, there is no language in the statute requiring verbal advisements by the court. As the Third Appellate District noted in People v. Quesada (1991) 230 Cal.App.3d 525, 281 Cal.Rptr. 426, the legislative purpose of section 1016.5 is to ensure a defendant is advised of the immigration consequences of his plea and given an opportunity to consider them. So long as the advisements are given, the language of the advisements appears in the record for appellate consideration of their adequacy, and the trial court satisfies itself that the defendant understood the advisements and had an opportunity to discuss the consequences with counsel, the legislative purpose of section 1016.5 is met. (230 Cal. App.3d at pp. 535-536, 281 Cal.Rptr. 426.) We agree with the analysis in Quesada.
Notwithstanding the holding in Quesada, appellant argues Quesada has been disapproved in People v. Gontiz, supra, 58 Cal. App.4th 1309, 68 Cal.Rptr.2d 786 and therefore should not be followed by this court. However, a careful reading of Gontiz reveals the reason Quesada is disapproved is not because a change of plea form was used, but because Quesada was not particularly concerned with the precise language of the advisement given. (People v. Gontiz, supra, at p. 1316, 68 Cal.Rptr.2d 786.) In Gontiz, the court had failed to warn the defendant he could be excluded from the United States. It only warned he could be deported and denied naturalization. Gontiz refused to adopt language in Quesada which suggested precise language was not necessary and reiterated the importance of using the precise statutory language when giving the advisements to ensure nothing is overlooked. It required that the defendant receive warning of all three possible adverse consequences addressed by section 1016.5. Gontiz does not, as appellant contends, disapprove of using a change of plea form to give the advisements where the precise statutory language is used.
Here the record contains a copy of the change of plea form which appellant signed. Thus we are able to review the adequacy of the language used. Appellant was warned of all three possible consequences in precise statutory language. In addition, the record establishes the trial court inquired into whether appellant had reviewed the form with his attorney, whether it had been translated into Spanish and whether appellant understood the advisements discussed and the rights ultimately waived. The statute requires *885 no more. We therefore reject appellant's contention to the contrary and affirm.
DISPOSITION
Judgment affirmed.
BUCKLEY, J., and LEVY, J., concur.
NOTES
[1] All further references are to the Penal Code unless otherwise noted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262580/ | 900 F.Supp. 1077 (1995)
Douglas MANN and Michael Dubis, Co-Receivers, and Paliafito America, Inc., an Illinois corporation, Plaintiffs,
v.
HANIL BANK, Korea Exchange Bank, Cho Hung Bank Commercial Bank of Korea, Ltd., Industrial Bank of Korea, Min Suk Han, J.R. Kang, M.Y. Park, Seung Suk Han, Sin Won Kang, Yoon Soo Han, Tae-Young Suh, Jang-Seok Han and Se-Myeong Yoo, Defendants.
NO. 94-C-1165.
United States District Court, E.D. Wisconsin.
August 31, 1995.
*1078 *1079 Peter C. Blain, Reinhart, Boerner, Van Deuren, Norris & Rieselbach, Milwaukee, WI, David E. Springer, John K. Lyons, Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, Harold A. Laufer, Davis & Kuelthau, Milwaukee, WI, for plaintiffs.
Charles R. McKirdy, Rudnick & Wolfe, Chicago, IL, Clay R. Williams, Thomas R. Streifender, Ken A. Hoogstra, Gibbs, Roper, Loots & Williams, Milwaukee, WI, for defendants.
DECISION AND ORDER
WARREN, Senior District Judge.
Before the Court are (1) defendants Korea Exchange Bank ("KEB") and Industrial Bank of Korea's ("Industrial Bank") Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), and (2) defendants Hanil Bank, KEB, Cho Hung Bank, Commercial Bank of Korea, Ltd., and Industrial Bank's (collectively referred to hereinafter as "the Korean banks") Motion to Dismiss Counts II and III of the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), (3), and (6) in the above-captioned matter. For the following reasons, the first motion is granted as to Counts II and III of the Complaint but denied as to Count I, and the second motion is granted.
*1080 I. FACTUAL AND PROCEDURAL BACKGROUND
This action originated from a multi-million dollar dispute over an agreement to distribute the widely-popular Grip Ball game in the United States. Select Creations, Inc. procured orders and acted as the "mass-marketing consultant" for the game; Paliafito America, Inc. ("Paliafito") acted as its exclusive United States distributor; and Miryoung ("Joy") Lee and Jong Sik ("Jerrold" or "Jerry") Lee owned several foreign and domestic corporations ("collectively referred hereinafter to as "the Mantae defendants") which manufactured and sold the game. The facts underlying the parties' dispute are complex, and were previously recited by this Court in exhausting detail. See Select Creations, Inc. v. Paliafito America, Inc. ("Paliafito I"), 828 F.Supp. 1301, 1305-54 (E.D.Wis.1992). On December 1, 1992, the Court, inter alia, issued a writ of attachment against the Mantae defendants, ordered them "to make available for attachment a sufficient amount of funds to effectuate the writ of attachment" (the amount to be set after further briefing), appointed a receiver "to protect the attached assets of" the Mantae defendants, issued a writ of attachment against Paliafito in the amount of $1,678,829.67, and ordered Paliafito not to use said funds to pay legal fees; we did not, however, "issue an order preventing [the Mantae defendants] from removing assets from the United States once a sufficient amount of their assets [had] been attached." Id. at 1366-68. Paliafito made two subsequent motions for a writ of attachment, preliminary injunction, and appointment of a receiver. Select Creations, Inc. v. Paliafito America, Inc. ("Paliafito II"), 830 F.Supp. 1213, 1215 (E.D.Wis.1993). The first was granted on February 19, 1993, and required the Mantae defendants to deposit $8 million with the Receiver; the second, titled "the First Supplemental Writ of Attachment," was granted on April 7, 1993, and further enjoined the Mantae defendants from transferring assets or taking other steps to hide or dissipate assets. Select Creations v. Paliafito America, Inc. ("Paliafito IV"), 852 F.Supp. 740, 747 (E.D.Wis.1994).
The Court, however, has not of yet been afforded the opportunity to address the merits of the parties' dispute. As previously recited:
"On April 7, 1993, this Court entered the First Supplemental Writ, which required, inter alia, that the Mantae defendants deposit $8 million in cash and marketable securities with Firstar Trust Co. (`the Receiver') by April 15, 1993. (First Supplemental Writ at ¶ 6.) The Mantae defendants were also required to post a bond of $50,000 plus an affidavit of surety. (Id. at ¶ 7.) In turn, Paliafito was required to deposit $1.43 million in cash or marketable securities with the Receiver. (Id. at ¶ 4; Stannard Dec. at ¶ 2.) The First Supplemental Writ stated, however, that if either party failed timely to deposit the required funds, the Court would, upon motion by the nonviolating party, `enter judgment against the violating party in the amount of the attachment assessed against the violating party and dismiss with prejudice the claims of the violating party.' (First Supplemental Writ at ¶ 17.)
The Mantae defendants failed to make the required deposit. (Stannard Dec. at ¶¶ 4-5.)"
Select Creations, Inc. v. Paliafito America, Inc. ("Paliafito III"), 830 F.Supp. 1223, 1229 (E.D.Wis.1993). On August 19, 1993, after finding that the Lees "willfully failed to comply with a direct court order" and that all of the Mantae defendants other than Mantae Company Limited ("MCL") had failed to contest Paliafito's motion for a default judgment, the Court issued an $8 million default judgment against them as provided under the First Supplemental Writ. Id. at 1231-41.
On December 29, 1992, the Lees established a new Korean company, MJ Korea, Ltd., to which they transferred their Korean Grip Toys business in an attempt to avoid the attachment of assets pursuant to the Court's December 1, 1992 Order. Paliafito IV, 852 F.Supp. at 746-47, 766 (E.D.Wis.1994). On April 21, 1993, after the Court had issued the First Supplemental Writ of Attachment, Min Suk Han, a defendant in the above-captioned matter and a citizen and resident of Seoul, Korea, purchased, along with several of his relatives, eighty-five percent of the shares of *1081 MJ Korea, paying approximately $50,000 and pledging approximately $8 million in real estate titled to Han family members to a consortium of five Korean banks to obtain short-term financing.[1]Id. at 747-49. On June 17, 1993, Min Suk Han and the Lees entered into a partnership agreement, with Jerry Lee "responsible for production guidance and supervision of [MJ Korea]" and Joy Lee "responsible for selling [Grip Toys] produced by [MJ Korea]; the Lees also "assigned MAI, Ltd.'s and Mi Jong's $12 million claim on MAI's inventory [all Mantae defendants] to Min Suk Han and promised to turn over to MJ Korea more than six billion Won in raw materials owned by MAI, Ltd." Id. at 751-52. In October of 1993, after discovering that the Lees had made fraudulent representations and that Jerry Lee had embezzled money from MJ Korea, Min Suk Han terminated their partnership and initiated criminal proceedings in Korea against Jerry Lee. Id. at 755-56.
MAI, one of the Mantae defendants, had filed a Chapter 11 bankruptcy petition on February 22, 1993. Id. at 747. The bankruptcy court authorized MAI's interim Chapter 7 trustee, Duke Salisbury, to auction off its assets on February 4, 1994; Salisbury knew that Paliafito felt that any transfer of assets to MJ Korea through the sale of property at auction would violate the terms of the First Supplemental Writ. Id. at 757. In January of 1994, however, Yang Ok Han, Min Suk Han's daughter, and Andy Oh, the general manager of the United States branch of MJ Korea ("MJ USA"), incorporated Longreen Toys, Inc. ("Longreen") "as a measure to be taken in the chance that Paliafito would not consent to MJ Korea bidding at the auction." Id. Yong Su Paek, a Korean businessman connected with Min Suk Han and MJ Korea, executed the certificate of incorporation and became Longreen's sole shareholder, president and chief financial officer. Id. at 745, 758. In addition, "[t]he money used to capitalize Longreen came from MJ Korea" by way of a $2.5 million loan from MJ Korea to Paek secured by his Longreen stock as well as its assets. Id. at 758. Paek reported to Oh, and "all of the income earned by Longreen [went] to MJ Korea." Id. at 759. At the auction, Longreen submitted the highest bid for MAI's assets; nobody from MJ Korea told Salisbury that they "were related to or affiliated with the Longreen group." Id. at 760.
On February 10, 1994, Paliafito filed an Emergency Motion for Entry of a Second Supplemental Writ of Attachment ("Second Supplemental Writ"), requesting that the Court appoint a receiver to take custody of assets purchased at the MAI auction and enjoin the Han respondents from selling Grip Toys products. Id. at 762. On February 25, 1994, the Court entered a preliminary order which, inter alia, restricted the purposes for which MJ Korea, Longreen, and MHW Inc. (collectively referred to hereinafter as "the Mantae transferees") could transfer funds out of the United States. On April 27, 1994, after conducting a week-long evidentiary hearing, the Court granted Paliafito's motion, and entered judgment against, inter alia, MJ Korea and Longreen Toys, jointly and severally, in the amount of $8 million; Min Suk Han was not included for jurisdictional reasons. Id. at 763-82.
On May 31, 1994, the Court entered a Writ of Execution to enforce judgment in said case which, in pertinent part, imposed a general freeze on all assets legally or beneficially owned by the Mantae defendants and the Mantae transferees, and appointed Douglas Mann and Michael Dubis as co-receivers. Paragraph 20 of the Writ provides as follows:
"The Mantae defendants, the Mantae transferees, Yang Ok Han, and any of their officers, directors, attorneys, employees, agents, parent corporations, subsidiary *1082 corporations, shareholders, or affiliates, and any person or entity in active concert or participation with them who receives actual notice of this Writ by personal service or otherwise, are hereby permanently enjoined:
(a) from selling or otherwise transferring any asset owned, legally or beneficially, by the Mantae defendants or the Mantae transferees, including, without limitation, Gripball Games, Grip Football games, Scatch, Hit N Grip Games, any other Grip toy product or accessory, inventories, accounts receivable, bank accounts, marketable securities, currency, certificates of deposit, checks and other negotiable instruments and for any purpose, including the payment of attorneys' fees;
* * * * * *
(g) from failing to turn over to the Co-Receivers all assets owned, legally or beneficially, by the Mantae defendants or the Mantae transferees wherever located ..."
(emphasis added). In its Complaint, Paliafito and the Co-Receivers claim that (1) "Longreen transferred $1,210,913.92 to the defendant Korean Banks, the bulk of which transfers were in direct violation of this Court's order dated February 25, 1994" and the Uniform Fraudulent Transfer Act; (2) because the $8 million in Korean real estate and other property pledged by Min Suk Han and defendants J.R. Kang, M.Y. Park, Seung Suk Han, Sin Won Kang, Yoon Soo Han, Tae-Young Suh, Jang-Seok Han, and Se-Myeong Yoo (collectively referred to as "the Han defendants") to the Korean banks to secure financing for MJ Korea "was part of the equity investment of the owners of MJ Korea [] and constitutes an asset of MJ Korea properly subject to execution," the Court should order the Korean banks to "liquidate the collateral and [] deposit the proceeds in the Eastern District of Wisconsin for garnishment"; and (3) if the Court does not find the $8 million in Korean real estate to be subject to execution, the Court should require "equitable marshaling of the assets" by ordering the Korean banks "to satisfy the total amount of the judgment debtors' obligations to them out of the collateral, and to turn over all remaining assets [] to the plaintiffs."
On February 10, 1995, the plaintiffs moved for a preliminary injunction to prevent the Korean banks from "releasing or otherwise transferring the remaining [] collateral." In a telephone conference held late that afternoon, the Court issued a temporary restraining order prohibiting the Korean banks from releasing or otherwise transferring rights that they have under mortgages securing the real estate that was pledged by the Han defendants to secure the indebtedness of, inter alia, MJ Korea, to be effectuated upon the plaintiffs posting a $1,000,000 bond. On February 16, 1995, after conducting a oneday hearing, the Court denied the plaintiffs' preliminary injunction request.
II. STANDARD OF REVIEW
"Rule 12(b)(1) requires that an action be dismissed if the court lacks jurisdiction over the subject matter of the lawsuit." Unity Sav. Ass'n v. Federal Sav. & Loan Ins. Corp., 573 F.Supp. 137, 140 n. 4 (N.D.Ill. 1983). When ruling on such a motion, the Court "is not bound to accept as true the allegations of the complaint which tend to establish jurisdiction where a party properly raises a factual question concerning the jurisdiction of the ... court to proceed with the action." Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979); Chicago Dist. Council of Carpenters Pension Fund v. Kustom Line Garage Door Co., 1989 WL 152531 (N.D.Ill. Dec. 11, 1989). Instead, the Court should "look beyond the jurisdictional allegations in the complaint and view whatever evidence has been submitted on the issue in determining whether in fact subject matter jurisdiction exists." Grafon, 602 F.2d at 783; Chicago Dist., 1989 WL 152531, at *1. Where subject matter jurisdiction is at issue, "the party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof." Grafon, 602 F.2d at 783; Geiger v. United States, 1989 WL 31100 (N.D.Ill. March 28, 1989). See also Western Transp. Co. v. Couzens Warehouse & Dist., Inc., 695 F.2d 1033, 1038 (7th Cir.1982); Nuclear Eng'g Co. v. Scott, 660 F.2d 241, 252 (7th Cir.1981). Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion cannot "evolve into a dismissal [for summary *1083 judgment] pursuant to Rule 56." Capitol Leasing Co. v. Federal Deposit Ins. Corp., 999 F.2d 188, 191 (7th Cir.1993); Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986).
Rule 12(b)(6) authorizes the Court to dismiss a case "for failure to state a claim upon which relief can be granted." In deciding such a motion, the Court must accept as true all well-pleaded factual allegations contained in the plaintiff's complaint, viewing all reasonable inferences in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Gillman v. Burlington N. R.R. Co., 878 F.2d 1020, 1022 (7th Cir.1989); Republic Steel Corp. v. Pennsylvania Eng'g Corp., 785 F.2d 174, 177 n. 2 (7th Cir.1986). The plaintiff, however, must set forth factual allegations in the complaint adequate to establish the essential elements of his or her claim, see Benson v. Cady, 761 F.2d 335, 338 (7th Cir.1985); Sutliff, Inc. v. Donovan Co., Inc., 727 F.2d 648, 654 (7th Cir.1984), and legal conclusions lacking adequate support should not be considered. Benson, 761 F.2d at 338. The Court must deny such a motion unless it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Benson, 761 F.2d at 338. The court's inquiry is generally limited to the factual allegations contained within the four corners of the complaint, see, e.g., Hill v. Trustees of Indiana Univ., 537 F.2d 248, 251 (7th Cir.1976); however, "[i]f ... matters outside the pleading are presented to and not excluded by the court," a Rule 12(b)(6) motion must be treated as a Rule 56 Motion for Summary Judgment. See Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir.1993); R.J.R. Services, Inc. v. Aetna Casualty and Sur. Co., 895 F.2d 279, 281 (7th Cir.1989); Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir.1987).
III. DISCUSSION
A. PARTIES' ARGUMENTS:
1. Motion by KEB and Industrial Bank to Dismiss the Complaint:
Industrial Bank and KEB argue that, because they are both majority-owned by administrative agencies of the Republic of Korea, they both qualify as "agencies or instrumentalities of a foreign state" under the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. § 1604, and are therefore immune from federal and state court jurisdiction. The plaintiffs respond that the Industrial Bank and KEB do not qualify for immunity under the FSIA because (1) the plaintiffs' claims do not "relate to a `public' or `governmental' act of the foreign state," and (2) the "commercial activities" exception to the FSIA rule of immunity, which excludes immunity if "the action is based ... upon a commercial activity carried on in the United States by the foreign state; or ... upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or ... upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States," is applicable in this case.
2. Motion by the Korean banks to Dismiss Counts II and III:
The Korean banks argue that the "local action doctrine" mandates dismissal of Counts II and III of the Complaint. They indicate that, pursuant to that doctrine, "federal and state courts lack jurisdiction over the subject matter of claims to land located outside the state in which the court sits." Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th Cir.1987). According to the Korean banks, because "[t]he plaintiffs want this court to determine the title to real property in the Republic of Korea, affect that country's title records, and then require officials there to conduct a foreclosure sale to liquidate the collateral," this Court lacks subject matter jurisdiction and/or venue to hear this claim. They further argue that Count II should be dismissed because the plaintiffs have failed to sufficiently allege irreparable injury, which they claim is a prerequisite for mandatory injunctive relief. Specifically, they claim that "[t]he plaintiffs have not alleged that the judgment debtors have no other assets which can be exploited to satisfy *1084 the judgment[,] have not alleged that they have exhausted all other means of collecting on their judgment[, and] have not even alleged that they have utilized all other means to reach the collateral in question." Finally, they claim that equitable marshaling is not an option in this case because the Korean banks do not have the right to foreclose on the collateralized property absent a default by the Han defendants and because the doctrine "is not enforced when the effect of applying the doctrine would be to compel the paramount creditor to proceed by an independent action, such as for the foreclosure of a mortgage."
The plaintiffs respond that, because the property pledged by the Han defendants to the Korean banks "constitutes a contribution of capital [to MJ Korea] as a matter of law," MJ Korea has a "beneficial interest in the collateral [] subject to execution." They claim that execution is not barred by the local action doctrine because it "only operates in personam against the [Korean] banks," and only indirectly affects real property. The plaintiffs further argue that they have established irreparable harm, although they need not do so to qualify for post-judgment injunctive relief, and that "under the regimen postulated by defendants, no court could order a nonparty to turn over debtor's property subject to execution unless the creditor alleged that it had exhausted all other avenues of recovery." Finally, the plaintiffs claim that equitable marshaling is appropriate in this case because (1) the collateral pledged by the Han defendants "constituted a contribution to the capital of MJ Korea," (2) "the effect of the requested order will nullify any payments [made by the Han defendants] to the [Korean] banks," thereby ripening their right to foreclose; and (3) "the requested relief will preserve the rights of those entitled to protection."
B. ANALYSIS:
1. Motion by KEB and Industrial Bank to Dismiss the Complaint:
a. Burden-shifting under the FSIA and the defendant's prima facie case:
The FSIA "provides foreign governments and certain of their instrumentalities with limited immunity from suit in the United States." Santos v. Compagnie Nationale Air France, 934 F.2d 890, 891 (7th Cir.1991).[2] The language used in the FSIA to effectuate this is straightforward: "Subject to existing international agreements to which the United States is a party at the time of enactment of this Act [enacted Oct. 21, 1976] a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter." 28 U.S.C. § 1604 (emphasis added). Under the FSIA, "a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state." Saudi Arabia v. Nelson, 507 U.S. 349, ___, 113 S.Ct. 1471, 1476, 123 L.Ed.2d 47 (1993) (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 692, 102 L.Ed.2d 818 (1989) and citing Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89, 103 S.Ct. 1962, 1968-69, 76 L.Ed.2d 81 (1983)).
Citing Alberti v. Empresa Nicaraguense De La Carne, 705 F.2d 250, 256 (7th Cir. 1983), the plaintiffs claim that the Korean banks must "produce admissible evidence to establish a prima facie case [of FSIA immunity] on two elements: that it is a foreign *1085 state under the definition employed in the FSIA, and that the claim the plaintiff asserts relates to a `public' or `governmental' act of the foreign state"; according to the plaintiffs, the Korean banks have failed to prove the second element. The Court, however, agrees with the defendants that this no longer stands as an accurate recitation of the burden-shifting standards applied under the FSIA. As an initial matter, it is contrary to the plain language of the statute. Section 1604 of the FSIA, which "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country," Nelson, 507 U.S. at ___, 113 S.Ct. at 1476, imposes no requirement that a foreign state first show that the plaintiff's claim relates to a "public or governmental act" in order to qualify for immunity from suit; instead, it simply grants immunity to "a foreign state ... except as provided in sections 1605 to 1607 of this chapter." None of these sections, in turn, expressly exempt from immunity foreign states generally engaging in "non-public or non-governmental" acts. Congress could certainly have created such an exception had it seen fit; as impliedly acknowledged in Nelson, its failure to do so exhibits its clear intention that immunity be presumed, even if the plaintiff's claim is based on what might be deemed a "public or governmental act," so long as none of the enumerated FSIA exceptions apply. As a result, KEB and Industrial Bank need not meet this heightened standard in order to qualify for immunity in this case.
This conclusion is supported by a fair reading of the chronology and legislative history underlying the FSIA. The Seventh Circuit based its Alberti holding regarding the elements comprising a prima facie case of immunity on what it deemed "the legislative history of FSIA." Specifically:
"Prior to the enactment of the FSIA the courts of this country employed the `restrictive' theory of sovereign immunity. Under this approach immunity was `restricted' to suits involving public, governmental acts, while no immunity was provided for claims involving the commercial or private acts of a foreign state. One of the primary goals of Congress in enacting FSIA was to codify the restrictive theory of immunity. As noted in the House Report, the act:
would codify the so-called `restrictive' principle of sovereign immunity, as previously recognized in international law. Under this principle, the immunity of a foreign state is `restricted' to suits involving a foreign state's public acts (jure imperii) and does not extend to suits based on its commercial or private acts (jure gestionis)."
Alberti, 705 F.2d at 256 (citation omitted). To determine precisely how Congress intended the FSIA to incorporate this principle, however, the Supreme Court had delved further into the historical development of the doctrine of sovereign immunity:
"For more than a century and a half, the United States generally granted foreign sovereigns complete immunity from suit in the courts of this country. In The Schooner Exchange v. M'Faddon, [11 U.S. (] 7 Cranch[) ] 116[, 3 L.Ed. 287] (1812), Chief Justice Marshall concluded that, while the jurisdiction of a nation within its own territory `is susceptible of no limitation not imposed by itself,' id. at 136, the United States had impliedly waived jurisdiction over certain activities of foreign sovereigns
...
As The Schooner Exchange made clear, however, foreign sovereign immunity is a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution. Accordingly, this Court consistently has deferred to the decisions of the political branches in particular, those of the Executive Branch on whether to take jurisdiction over actions against foreign sovereigns and their instrumentalities ...
Until 1952, the State Department ordinarily requested immunity in all actions against friendly foreign sovereigns. But in the so-called Tate Letter, the State Department announced its adoption of the `restrictive' theory of foreign sovereign immunity. Under this theory, immunity is confined to suits involving the foreign sovereign's public acts, and does not extend to *1086 cases arising out of a foreign state's strictly commercial acts.
The restrictive theory was not initially enacted into law, however, and its application proved troublesome. As in the past, initial responsibility for deciding questions of sovereign immunity fell primarily upon the Executive acting through the State Department, and the courts abided by `suggestions of immunity' from the State Department. As a consequence, foreign nations often placed diplomatic pressure on the State Department in seeking immunity. On occasion, political considerations led to suggestions of immunity in cases where immunity would not have been available under the restrictive theory.
An additional complication was posed by the fact that foreign nations did not always make requests to the State Department. In such cases, the responsibility fell to the courts to determine whether sovereign immunity existed, generally by reference to prior State Department decisions. Thus, sovereign immunity determinations were made in two different branches, subject to a variety of factors, sometimes including diplomatic considerations. Not surprisingly, the governing standards were neither clear nor uniformly applied.
In 1976, Congress passed the Foreign Sovereign Immunities Act in order to free the Government from the case-by-case diplomatic pressures, to clarify the governing standards, and to `assur[e] litigants that ... decisions are made on purely legal grounds and under procedures that insure due process,' H.R.Rep. No. 94-1487, p. 7 (1976). To accomplish these objectives, the Act contains a comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies, or instrumentalities.
For the most part, the Act codifies, as a matter of federal law, the restrictive theory of sovereign immunity. A foreign state is normally immune from the jurisdiction of federal and state courts, 28 U.S.C. § 1604, subject to a set of exceptions specified in §§ 1605 and 1607. Those exceptions include actions in which the foreign state has explicitly or impliedly waived its immunity, § 1605(a)(1), and action based upon commercial activities of the foreign sovereign carried on in the United States or causing a direct effect in the United States, § 1605(a)(2) ...
...If one of the specified exceptions to sovereign immunity applies, a federal district court may exercise subject-matter jurisdiction under [28 U.S.C.] § 1330(a); but if the claim does not fall within one of the exceptions, federal courts lack subject-matter jurisdiction."
Verlinden, 461 U.S. at 486-89, 103 S.Ct. at 1967-69 (citations and footnotes omitted) (emphasis added). Expanding on its Verlinden holding, the high court later observed:
"We think that the text and structure of the FSIA demonstrate Congress' intention that the FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts ... As we said in Verlinden, the FSIA `must be applied by the district courts in every action against a foreign sovereign, since subject-matter jurisdiction in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity.'"
Argentine Republic, 488 U.S. at 434-35, 109 S.Ct. at 688 (emphasis added).
The FSIA, then, codified the "restrictive theory" of sovereign immunity by expressly delineating the circumstances in which a foreign state would so qualify; it did not, however, a fortiori incorporate the procedural mechanisms used by courts in applying this theory prior to its date of enactment. By providing a "comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state," Verlinden at 488, 103 S.Ct. at 1968, Congress clearly intended for the FSIA to supplant common-law approaches to determining whether or not federal (and state) courts could exercise subject-matter jurisdiction over a foreign state. In essence, while endorsing the common-law notion that foreign states should only qualify for immunity based on acts which can be fairly characterized as "public" in nature, Congress took it upon itself in the FSIA to define, by way of exceptions to the presumption of immunity to foreign states, *1087 those acts which would be considered to be "private" and, therefore, unprotected; all other acts would be presumed to be "public" and beyond the reach of the courts.
The legislative history cited by the Alberti court supports this view:
"[The burden will remain on the foreign state to produce evidence in support of its claim of immunity. Thus, evidence must be produced] to establish that a foreign state or one of its subdivisions, agencies or instrumentalities is the defendant in the suit and that the plaintiff's claim relates to a public act of the foreign state that is, an act not within the exceptions in sections 1605-1607. Once the foreign state has produced such prima facie evidence of immunity, the burden of going forward would shift to the plaintiff to produce evidence establishing that the foreign state is not entitled to immunity. The ultimate burden of proving immunity would rest with the foreign state."
Alberti, 705 F.2d at 255 (quoting H.R.Rep. No. 1487, 94th Cong., 2d Sess. 1, 17, reprinted in 1976 U.S.Code Cong. & Admin.News 6604, 6616). A "public act," then, is presumed by Congress to be any act by a foreign state not encompassed by a specific FSIA exception. And despite the language used in this legislative history, Congress could not have intended for foreign states to disprove every FSIA exception, thereby establishing that the plaintiff's claim relates to a "public act," as part of their prima facie case. As noted in Alberti:
"The only definition of public act appears in the suggestion in the legislative history that a public act is `an act not within the exceptions in sections 1605-1607.' House Report at 6616. This definition, which is circular, would require a defendant to establish the inapplicability of every statutory exception [in order to prove its prima facie case]. Common sense refutes this position as it would be a near impossible task for a defendant to refute the exceptions before the plaintiff has indicated which one is applicable ... Furthermore, it would be a waste of time to require the defendant to produce this evidence when the plaintiff could easily indicate which exception is applicable and produce minimal support as to its applicability."
Alberti, 705 F.2d at 256 (emphasis added). Inexplicably, the Alberti court nevertheless concluded that "the purposes of the act will best be served by requiring that the defendant demonstrate that the suit relates to a governmental act of the foreign state being sued" in order to establish its prima facie case. Id. This conclusion, of course, not only adopted the circular logic which the court purportedly sought to avoid, but also violated the clear language of § 1604, the policy reasons for which it was adopted, and the notion of presumptive immunity as articulated by the Supreme Court in Verlinden and Nelson.
These are no doubt the reasons why the conclusion reached by the Alberti court regarding the elements comprising the foreign state's prima facie case has not, to our knowledge, been endorsed by any other court, including those in the Seventh Circuit; since Alberti was decided, it has become well-established that, once a defendant earns a "presumption" of immunity under § 1604 by showing that it is a foreign state, it is the plaintiff's burden to rebut the foreign state's prima facie case of immunity by offering evidence that one of the statutory exceptions applies. See, e.g., Drexel Burnham Lambert Group Inc. v. Committee of Receivers for A.W. Galadari, 12 F.3d 317, 325 (2nd Cir. 1993) (quoting Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2nd Cir. 1993)); Rodriguez v. Transnave Inc., 8 F.3d 284, 287 n. 6 (5th Cir.1993); Gerding v. Republic of France, 943 F.2d 521, 526 (4th Cir.1991). It is only after the plaintiff meets its burden of production that the foreign state must ultimately meet its burden of persuasion by proving by a preponderance of the evidence that it is entitled to immunity. Drexel Burnham, 12 F.3d at 325; Alberti, 705 F.2d at 256.[3] Thus, because the plaintiffs *1088 in this case do not challenge KEB and Industrial Bank's status as "agencies or instrumentalities of a foreign state" under § 1603(b), the defendants have established a prima facie case of immunity under the FSIA.
b. Plaintiffs' burden of production:
The plaintiffs attempt to meet their burden of production as to each of their claims by arguing that KEB and Industrial Bank fall victim to the "commercial activity" exception to the FSIA, which provides that
"[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign states elsewhere and that act causes a direct effect in the United States."
28 U.S.C. § 1605(a)(2). The defendants argue that no such exceptions are applicable to this case. Each of their three claims will be discussed in turn.
1) Count I:
As to Count I, which involves Longreen's alleged fraudulent transfers of proceeds through the Korean banks, the plaintiffs argue that KEB and the Industrial Bank, through their banking activities, engaged in commercial activity both within and outside of the United States in violation of each of the three clauses of § 1605(a)(2). For example, they "drafted, and issued, the bills of exchange[4] which they turned over to the Los Angeles Banks for collection obligating the US importers to pay sums to the Korean banks, [and] required payment to be made through their branch (KEB's New York branch) and correspondent (the Industrial Bank's correspondent bank, Bankers Trust) banks in New York, ... which would (presumably) remit the proceeds to Korea." Moreover, the plaintiffs argue, "the fraudulent acts themselves [by Longreen] occurred in the United States ... and the KEB's and the Industrial Bank's frequent use of the United States court system when their own rights are at stake belies any claim of immunity." According to the plaintiffs, these acts disqualify KEB and the Industrial Bank from immunity under each clause of the "commercial activities" exception of the FSIA.
The plaintiffs first claim that KEB and the Industrial Bank fall "within the first clause of the `commercial activity' exception" of the FSIA, which precludes immunity "in which the action is based upon a commercial activity carried on in the United States by the foreign state." 28 U.S.C. § 1605(a)(2). The phrase "commercial activity carried on in the United States by the foreign state," in turn, is defined as "commercial activity carried on by such state and having substantial contact with the United States." Id. at § 1603(e). For the Court to have jurisdiction in this case based on clause one, therefore, the plaintiffs' action must meet three requirements: it must "be `based upon' some `commercial activity' by [the defendants] that had `substantial contact' with the United States within the meaning of the Act." Nelson, 507 U.S. at ___, 113 S.Ct. at 1477. Accord Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1018 (2nd Cir.1991) (noting that courts should "focus not on whether the foreign state generally engages in commercial activity in the United States, but on whether the particular conduct giving rise to the claim is a part of commercial activity having substantial contact with the United States"); Gerding, 943 F.2d at 526 (noting that "[i]n addition *1089 to the express requirement that the commercial activity have `substantial contact' with the United States, the FSIA has been interpreted to also require a nexus between the commercial activity in the United States and the plaintiff's cause of action"); Rush-Presbyterian-St. Luke's Medical Ctr. v. Hellenic Republic, 877 F.2d 574, 577 (7th Cir. 1989) (finding that, in order to determine immunity, "we must answer two related questions: (1) did the defendants engage in a `commercial activity' in the United States or abroad?; and (2) if so, does this activity bear a significant relation to the United States, and is plaintiffs' action `based upon' the defendants' commercial activity?").
Only a portion of the conduct alleged by the plaintiffs against KEB and the Industrial Bank under Count I of the Complaint meets the first prong of this test. The Seventh Circuit has interpreted the term "based upon" to require "an `identifiable nexus' between the claim and the commercial activity at issue." Santos, 934 F.2d at 892. See also Tubular Inspectors, Inc. v. Petroleos Mexicanos, 977 F.2d 180, 183-84 (5th Cir.1992) (noting that "the jurisdictional nexus requirement of § 1605(a)(2) mandates not only that [the defendant's] commercial acts be tied to the United States, but that they form the basis of [the plaintiff's] causes of action"); America West Airlines, Inc. v. GPA Group, Ltd., 877 F.2d 793, 796 (9th Cir.1989) ("[t]here must be a nexus between the defendant's commercial activity in the United States and the plaintiff's grievance"). As deduced in Santos:
"... [W]hat level of `nexus,' `bond,' `link,' or `connection' is necessary[?] We conclude that a claim is `based upon' events in the United States if those events establish a legal element of the claim ...
This approach follows the plain language of the Immunities Act. Again, the Act states that United States courts have jurisdiction in any case in which `the action is based upon' certain events. 28 U.S.C. § 1605(a)(2) (emphasis added). An action is based upon the elements that prove the claim, no more and no less. If one of those elements consists of commercial activity within the United States or other conduct specified in the Act, this country's courts have jurisdiction."
Santos, 934 F.2d at 893 (citations omitted).
In Count I of the Complaint, the plaintiffs claim that Longreen fraudulently transferred funds from the United States through KEB and the Industrial Bank to Korea in order to frustrate the plaintiffs' collection of judgment. The only action taken by these banks which could be deemed relevant to the Complaint, then, are those which may have helped to effectuate this transfer. As suggested by the banks, the mere fact that each has on occasion brought suit in this country or engaged in general commercial activity here does not provide an element underlying the plaintiffs' fraudulent transfer claim, see, e.g., Shapiro, 930 F.2d at 1018 (indicating that a foreign state's filing of two prior actions in federal court for the return of notes it had issued were "distinct from the instant litigation," which involved a bona fide purchaser's attempt to collect on one such note) and Gerding, 943 F.2d at 527 (noting that "the connection between the cause of action and the sovereign's commercial acts in the United States must be material," and that "[i]solated or unrelated commercial actions of a foreign sovereign in the United States are insufficient to support a commercial activities exception to sovereign immunity"); and any fraudulent acts committed by Longreen itself, irrespective of whether or not they occurred in the United States, cannot be attributed to KEB or the Industrial Bank to provide this nexus. The only commercial activity by the banks cited by the plaintiffs as a basis for their fraudulent transfer claim is (1) their issuance through the Los Angeles Banks of the bills of exchange creating the debt obligations of MAI, Conpro, Inc., and other US importers through which Longreen allegedly funnelled its payments to Korea, and (2) their receipt of such payments through branch and correspondent banks in New York. Their attempt to apply clause one of the commercial activities exception, then, must rely upon these acts.
Moving to the second element in establishing a clause one exception, we have little difficulty concluding that these acts constitute "commercial activity." The FSIA defines *1090 "commercial activity" as behavior exhibiting "either a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C. § 1603(d). While this definition "is not especially helpful, and is in fact somewhat circular," courts have developed, "through an evolving body of case law, a workable definition of a `commercial activity.'" Rush-Presbyterian, 877 F.2d at 577. As indicated by the plaintiffs, the Supreme Court has concluded that, "when a foreign government acts, not as a regulator of a market, but in the manner of a private player within it, the foreign sovereign's actions are `commercial' within the meaning of the FSIA." Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 613, 112 S.Ct. 2160, 2166, 119 L.Ed.2d 394 (1992) (finding foreign state's unilateral refinancing of bonds it had issued under a plan to stabilize its currency to be "commercial activity" under the FSIA). Put differently, a foreign state engages in commercial activity "where it exercises `only those powers that can also be exercised by private citizens'" as opposed to "`powers peculiar to sovereigns.'" Nelson, 507 U.S. at ___, 113 S.Ct. at 1479 (quoting Weltover, 504 U.S. at 613, 112 S.Ct. at 2166). Accord Rush-Presbyterian, 877 F.2d at 578-80. In this case, there is little doubt that KEB and the Industrial Bank's role as conduits for money transfers between the United States and the Republic of Korea could have been, and in fact were, performed by privately-held financial institutions, and neither required nor implicated any powers of self-government. Therefore, Count I of the Complaint alleges "commercial activity" as defined by the FSIA.
The remaining question, then, is whether KEB and Industrial Bank, through their role in facilitating Longreen's transfer of funds to Korea, had "`substantial contact' with the United States within the meaning of the Act." Nelson, 507 U.S. at ___, 113 S.Ct. at 1477. Based on the record as it currently stands, we must answer this question in the affirmative. Case law giving content to the term "substantial contact" is admittedly scarce, as "Congress left it to the courts to define the contours of `substantial contact' between a foreign state's commercial activity and the United States." Shapiro, 930 F.2d at 1019. With little case law to guide them, several Circuits have nevertheless concluded that "Congress intended a tighter nexus than the `minimum contacts' standard for due process." Id.; accord Gerding, 943 F.2d at 527; Zedan v. Kingdom of Saudi Arabia, 849 F.2d 1511, 1513 (D.C.Cir.1988). Each of these courts also turned to the legislative history, which gives several examples of what is meant by "substantial contact":
"cases based on commercial transactions performed in whole or in part in the United States, import-export transactions involving sales to, or purchases from, concerns in the United States, business torts occurring in the United States [], and an indebtedness incurred by a foreign state which negotiates or executes a loan agreement in the United States, or which receives financing from a private or public lending institution located in the United States for example, loans, guarantees or insurance provided by the Export-Import Bank of the United States ... This definition, however, is intended to reflect a degree of contact beyond that occasioned simply by U.S. citizenship or U.S. residence of the plaintiff ..."
Gerding, 943 F.2d at 527; Zedan, 849 F.2d at 1513. "Nothing in the legislative history suggests, however, that Congress intended jurisdiction under the first clause to be based upon acts that are not themselves commercial transactions, but that are merely precursors to commercial transactions." Zedan, 849 F.2d at 1513.
Ascertaining the type and number of contacts with the United States necessary to meet the "substantial" threshold in any particular case is a fact-specific inquiry; it is nevertheless helpful to review the decisions of other courts addressing this issue. In neither Gerding nor Zedan did the reviewing court find "substantial contact" between the commercial acts of the foreign sovereign and the United States. In Gerding, AT & T entered into an agreement with the Compania Telefonica Nacional de Espana ("Telfonica"), a Spanish corporation, to replace an undersea fiber optic deep water cable system it had previously sold which had failed because it could not withstand shark bites. *1091 Gerding, 943 F.2d at 523. Telfonica procured a French ship, the N/C Leon Thevenin, which was owned by France Cables et Radio, for the mission; AT & T assigned Leslie Gerding from its research and development branch to work on the project. Id. Gerding, a diabetic, died aboard the ship; her estate brought suit against the French entities. Id. at 524. The Fourth Circuit found, inter alia, that the mere fact that Jean Genoux, the person heading the mission, had attended a planning meeting at AT & T's New Jersey office and that the ship had been on standby status in Wilmington, Delaware were not sufficient to show "substantial commercial activity of the French defendants within the United States" because the "actual commercial activity being planned" took place between Spain and the Canary Islands. Id. at 527. See also Maritime Int'l Nominees Establishment v. Republic of Guinea, 693 F.2d 1094, 1109 (D.C.Cir.1982), cert. denied, 464 U.S. 815, 104 S.Ct. 71, 78 L.Ed.2d 84 (1983) (concluding that "substantial contact" requirement was not met where a representative of the foreign sovereign engaged in two business meetings with the plaintiff in the United States). In Zedan, in turn, an American citizen sued Saudi Arabia after it refused to pay him money due him under a road construction contract it had guaranteed. Zedan, 849 F.2d at 1512. The parties agreed that Saudi Arabia was immune from suit unless a single telephone call placed to him prior to the project by a Saudi Arabian official constituted a "substantial contact" with the United States. Id. at 1512-13. Characterizing this communication as a "recruiting phone call," rather than a contractual agreement, the D.C. Circuit found clause one of the commercial activities exception to the FSIA inapplicable. Id. at 1513.
In Shapiro, on the other hand, the Second Circuit found "substantial contact" between the defendant's commercial activity and the United States. The plaintiff in Shapiro, a United States citizen living in Hong Kong, claimed to be a bona-fide third party purchaser of a negotiable promissory note issued by the Republic of Bolivia to International Promotions and Ventures, Ltd. ("IPVL"), a United States corporation. Shapiro, 930 F.2d at 1014-16. Bolivia refused to honor the note because IPVL had failed to return it and other notes after failing to perform on the parties' aircraft contract as previously agreed, which caused Bolivia to sue IPVL in two separate federal court actions. Id. The Second Circuit rejected the plaintiff's theory the Bolivia waived its right to immunity by utilizing United States courts to sue IPVL. Id. at 1017-18. Nevertheless, the court relied on the following facts in establishing "substantial contact":
"Appellees [Bolivia] issued the Notes to IPVL, a Delaware corporation doing business principally in New York City. [The Notes] physically traveled to the United States and were placed in escrow for IPVL with a Washington, D.C. law firm. At this time, IPVL and Tractman were registered agents of the Government of Bolivia, in part for the purpose of arranging financing to purchase the Starfighters for that client. Although IPVL was obligated to return the Notes if the Starfighters were not delivered, the Notes were fully negotiable instruments on which Bolivia would be liable to any holder in due course.
The activity in question thus introduced negotiable promissory notes into the United States for the purpose of raising capital. There was no attempt to prevent IPVL from seeking to distribute the Notes in the United States apart from the Contract which did not purport to limit where the Notes might be discounted and the terms of which were, in any event, not on the Notes ... The issue [] is the nature of the activity engaged in by Bolivia, namely, raising capital by introducing negotiable promissory notes into the United States. We know of no theory that would cause us to read the FSIA to allow a foreign state to issue bearer notes to an intermediary in the United States and then to deny that it was engaged in commercial activity as defined in the FSIA. The very presence of such highly transferrable instruments, whether or not the initial holder successfully discounts them in the country, suffices to satisfy the `substantial contact' requirement of the statute."
Id. at 1019 (citation omitted).
The acts taken by KEB and the Industrial Bank in the instant case better *1092 resemble those of the defendant in Shapiro than those of the defendants in Zedan and Gerding.[5] While the bills of exchange issued by the banks were presumably not negotiable, they physically traveled to the United States, where they were received by the Los Angeles Banks, which are apparently incorporated under U.S. law and exist as domestic corporations. The bills of exchange obligated U.S. importers to make payment for goods received from MJ Korea from their domestic bank accounts to Korean banks; those targeted to KEB were to be sent to its New York branch office, and those earmarked for the Industrial Bank were to be made to Bankers Trust in New York. The mere fact that payment occurred through intermediaries does not absolve the banks of responsibility; a foreign state can, in appropriate circumstances, surrender immunity through commercial activities committed by its agent on its behalf. See Maritime, 693 F.2d at 1105 (noting that the legislative history of clause one "suggests that a foreign state, in Congress's view, can surrender immunity by virtue of activities committed by an agent, and that, consequently, the `carried on by' requirement can be interpreted in light of broad agency principles").
KEB and the Industrial Bank financed these transactions fully aware that the goods would be traveling to the United States to domestic purchasers, that the purchasers would draw upon their domestic accounts to render payment, and that payment would be channeled through domestic banks to Korea. According to the plaintiffs, they then accepted payment from Longreen to settle these accounts. In our view, the banks' role in arranging and accepting the money transfer from this country to Korea in order to facilitate the import of goods provided "sufficient contact" with the United States to satisfy the requirements of the FSIA. Based on the facts presented thus far, we believe that this conclusion is founded on the fairest reading of the statute and best serves the previously-discussed "restrictive theory" of immunity underlying its enactment. For this reason, and because the claim contained in Count I are "based upon" the banks' "commercial activity," we conclude that the plaintiffs have met their burden of production as to such count, and that the defendants have not established that clause one of the "commercial activities" exception does not apply. As a result, KEB and the Industrial Bank are not immune from suit, and this Court has subject matter jurisdiction over Count I of the Complaint.[6]
*1093 2) Count II:
As previously indicated, the plaintiffs claim in Count II of the Complaint that, because the over $8 million in Korean real estate and other property pledged by the Han defendants to the Korean bank defendants to secure financing for MJ Korea "was part of the equity investment of the owners of MJ Korea [] and constitutes an asset of MJ Korea properly subject to execution," the Court should order the Korean bank defendants to "liquidate the collateral and [] deposit the proceeds in the Eastern District of Wisconsin for garnishment." They argue that the Korean banks' "refusal to liquidate the Korean collateral and return funds previously transferred to them in violation of the Court's extant freeze orders" is an "act that causes a direct effect in the United States," and therefore precludes them from asserting immunity pursuant to clause three of the "commercial activities" exception of the FSIA.
The plaintiffs have satisfied their burden of producing evidence to support their nonimmunity claim; however, KEB and the Industrial Bank have met their burden of persuasion by establishing the inapplicability of clause three of the "commercial activities" exception to the claims alleged in Count II. As previously indicated, that provision waives immunity when the plaintiffs' action is "based upon ... an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States." 28 U.S.C. § 1605(a)(2) (emphasis added). In Count II, the plaintiffs seek to enforce a judgment by requiring the Korean banks to foreclose on property allegedly owned by MJ Korea and/or the Han defendants. In order for this claim to be "based upon" the creation of these mortgage agreements in Korea, the latter must "establish a legal element of the claim." Santos, 934 F.2d at 893. Accord Nelson, 507 U.S. at ___, 113 S.Ct. at 1477 (noting that "the phrase ["based upon"] is read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case").
Setting aside for the moment the issue of subject matter jurisdiction over the Korean banks, the plaintiffs, in order to establish a right to initiate foreclosure, must prove that the property mortgaged by the Han relatives actually constituted an asset of judgment debtor MJ Korea, that they are unable to satisfy judgment from other assets, and that they have a priority or residual interest in such assets. It would be a far stretch to say that the plaintiffs' foreclosure claim is premised on the mere creation of the mortgage agreements themselves; rather, it seems clear that it is based upon the entry of default judgment against MJ Korea and the plaintiffs' inability to collect from other sources. As a result, KEB and the Industrial Bank's presumed immunity cannot be set aside under clause three of the "commercial activities" exception.
For similar reasons, the defendants have shown that, even assuming that the creation of these mortgage agreements was "connected with" commercial activity, see Nelson, 507 U.S. at ___, 113 S.Ct. at 1478 (recognizing that "Congress manifestly understood there to be a difference between a suit `based upon' commercial activity [clause one] and one `based upon' acts performed `in connection with' such activity [clauses two and three]," with the former requiring a higher standard), it did not have a "direct effect" in the United States. The Supreme Court has "considered the meaning of the phrase `direct effect' and defined it succinctly but clearly: `[A]n effect is `direct' if it follows `as an immediate consequence of the defendant's ... activity.''" Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1146 (D.C.Cir.1994) (quoting Weltover, 504 U.S. at 617, 112 S.Ct. at 2168). This rejected the definition previously adopted in this and other Circuits which was based on the legislative history of the FSIA: that a "direct effect" was one which was *1094 "substantial" and "foreseeable." See, e.g., America West Airlines, Inc. v. GPA Group, Ltd., 877 F.2d 793, 798-800 (9th Cir.1989); Rush-Presbyterian, 877 F.2d at 581; Maritime, 693 F.2d at 1110-1111.
In this case, the creation of the mortgages did not have an immediate effect in the United States relevant to the collection of judgment; at the time these transactions occurred in Korea, default judgment had not yet been entered against MJ Korea and the plaintiffs had no right to seek recovery of assets. It was the default judgment entered against MJ Korea in April of 1994, and not the mortgage agreements entered into the previous year, which had the immediate consequence of initiating the plaintiffs' right to collect on assets located in the United States (and, perhaps, elsewhere). A contrary understanding would effectively emasculate the clause three exception by allowing plaintiffs to bootstrap its application; foreign states could be sued in the United States years after they have taken actions elsewhere which simply affect the balance sheet of an exporter so long as the exporter is later bound by a domestic judgment. Ratification of this type of lifelong marriage, as sought by the plaintiffs, would violate Weltover as well as the policies underlying the "restrictive theory" of immunity, which contemplates the lifting of immunity for foreign states only when they should be aware that their action will impact domestic concerns. KEG and the Industrial Bank, then, are immune from suit as to the claims brought by the plaintiffs in Count II of the Complaint.
3) Count III:
We previously saw that, in Count III of the Complaint, the plaintiffs claim that, if the Court does not find the $8 million in Korean real estate to be subject to execution, it should nevertheless require "equitable marshaling of the assets" by ordering the Korean bank defendants "to satisfy the total amount of the judgment debtors' obligations to them out of the collateral, and to turn over all remaining assets [] to the plaintiffs." Again, they argue that the Korean banks' "refusal to liquidate the Korean collateral and return funds previously transferred to them in violation of the Court's extant freeze orders" is an "act that causes a direct effect in the United States," and therefore precludes them from asserting immunity pursuant to clause three of the "commercial activities" exception of the FSIA.
The plaintiffs have once again satisfied their burden of producing evidence to support their non-immunity claim; however, KEB and the Industrial Bank have met their burden of persuasion by establishing the inapplicability of clause three of the "commercial activities" exception to the claims alleged in Count III. As with Count II, Counts III is not premised on any activity taken by the Korean banks; rather, it is an attempt to enforce a judgment by requiring the Korean banks to either foreclose on property or turn over accounts and other assets of MJ Korea and/or the Han defendants. Therefore, for the reasons stated in the preceding section, it is not "based on" the mortgage transactions entered into by the Korean banks; nor did such transactions have a "direct effect" in the United States. As a result, KEG and the Industrial Bank, are again immune from suit as to the claims brought by the plaintiffs in Count III of the Complaint.
2. Motion by the Korean banks to Dismiss Counts II and III:
All of the Korean bank defendants join in arguing that the plaintiffs cannot succeed on Count II of the Complaint, the foreclosure claim, or Count III of the Complaint, the equitable marshaling claim, and that dismissal is therefore warranted.[7] First of all, they claim that the "local action" doctrine precludes this Court from exercising subject matter jurisdiction. Under this rule of law, "imported from the common law and now firmly established in federal jurisprudence," Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3822, at 204 (2nd ed. 1986), "federal and state courts lack jurisdiction over the subject matter of claims to land located outside the state in which the court sits." Hayes, 821 F.2d at 287. This is because such actions are deemed to be "local," rather *1095 than "transitory," in nature. Wright, Miller & Cooper, Federal Practice and Procedure § 3822, at 202-04.
While "attempts to define the distinction between local and transitory actions have been notoriously unsuccessful," id. at 205, "the characterization of an action as local or transitory is a matter of federal rather than state law." Kavouras v. Fernandez, 737 F.Supp. 477, 478 (N.D.Ill.1989) (citing Wright, Miller & Cooper, Federal Practice and Procedure § 3822, at 207). In the "leading case" addressing this distinction, Chief Justice Marshall, while suggesting "that the line should be drawn between actions in rem and those in personam," nevertheless "accepted the rule that `actions are deemed transitory, where transactions on which they are founded, might have taken place anywhere; but are local where their cause is in its nature necessarily local.'" Wright, Miller & Cooper, Federal Practice and Procedure § 3822, at 203, 206 (quoting Livingston v. Jefferson, 15 Fed.Cas. 660, 664 (No. 8411) (C.C.D.Va.1811)). Based on the latter theory, the Livingston court found that, because a trespass to land in Louisiana can take place only in Louisiana, the plaintiff's in personam action for a money judgment against the defendant could only be brought in Louisiana. Livingston, 15 Fed. Cas. at 664. This result has been deemed "a triumph of sterile history over common sense," Wright, Miller & Cooper, Federal Practice and Procedure § 3822, at 206, and criticized by the Seventh Circuit, see Raphael J. Musicus, Inc. v. Safeway Stores, Inc., 743 F.2d 503, 509-10 (7th Cir.1984); thus, we look to other federal cases to ascertain whether the plaintiffs' foreclosure and/or equitable marshaling claims are the type of actions that have been held to be local in nature. See id. at 209.
As noted by the Korean banks in their brief, the admittedly obscure but nevertheless longstanding local action doctrine was embraced by Judge Shadur of the Northern District of Illinois in a foreclosure action. Kavouras, 737 F.Supp. at 478. In Kavouras, the plaintiff filed a "self-prepared `Complaint for Foreclosure and Fraudulent Conveyance'" against five defendants, seeking the return of mortgaged property located in Rusk County, Wisconsin. Id. at 477-78. Citing Hayes, Judge Shadur dismissed the action for lack of subject matter jurisdiction,[8] noting that "it has long been understood that mortgage foreclosure actions are classic examples of what have historically been characterized as `local' as contrasted with `transitory' actions [] and federal jurisdiction over local actions involving real property exists only within the territorial boundaries of the state where the land is located." Id. at 478. See generally Wright, Miller & Cooper, Federal Practice and Procedure § 3822, at 209 & n. 29 (listing other cases in which an action to foreclose or cancel a mortgage has been held to be local in nature).
In Count II, the plaintiffs ask this Court to direct the Korean banks to foreclosure on Korean property (and to then deposit the proceeds in the Eastern District of Wisconsin for garnishment); as noted in Kavouras, this is a clear violation of the local action doctrine. The plaintiffs argue that this doctrine does not apply because they seek in personam, rather than in rem, relief; that is, they ask the Court to "order the Korean banks, over whom the Court has personal jurisdiction, [] to liquidate the Korean collateral in a commercially reasonable fashion and in accordance with the laws of the Republic of Korea." Black's Law Dictionary defines an "action in rem" as
"a proceeding that takes no cognizance of owner but determines right in specific property against all of the world, equally binding on everyone. It is true that, in a strict sense, a proceeding in rem is one *1096 taken directly against property, and has for its object the disposition of property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein."
Black's Law Dictionary 713 (5th ed. 1979) (emphasis added). Despite their rhetoric, the plaintiffs ask the Court in Counts II and III to order the foreclosure of foreign property to satisfy judgment, which would require us to make title and priority determinations in order to determine rights of recovery. The in rem nature of such action is undeniable, and cannot be shielded under the cloak of personal jurisdiction; for if the Court were to grant the relief requested in Counts II and III, we would be required to directly order the conveyance and termination of the Korean banks' interest in property. The local action doctrine precludes us from taking such measures in order to provide relief.
In support of their position, the plaintiffs cite Musicus, a Seventh Circuit opinion written by Judge Cudahy. In Musicus, the plaintiff sued the defendant over the alleged breach of lease agreements involving property in Nebraska and Montana, seeking to void the leases. Id. at 505. Characterizing the suit as one involving "allegations of breach of contract, fraud and trespass," Judge Cudahy found the local action doctrine inapplicable, and held that the Northern District of Illinois could exercise proper venue.[9]Id. at 505-06. In doing so, he observed:
"Proper venue is determined by the characterization of the action as either local or transitory a determination which, in turn, depends on the type of relief sought ... The traditional and well-established distinction [] is the same as that between in personam and in rem jurisdiction. The reason for this parallel is simply that, in order to provide in rem relief, the court must have jurisdiction over the real property at issue, and a local action must therefore be brought in the jurisdiction in which that real property is located. On the other hand, to provide in personam relief, the court need only have personal jurisdiction over the defendant, and thus a transitory action may be brought in any jurisdiction in which the defendant can be found."
Id. at 506-07 (citations omitted). Judge Cudahy further noted, however, that when a "plaintiff seeks a personal judgment which will ultimately affect real property," such action may be considered in personam, and therefore transitory in nature, only if it "is based in fraud, trust, or contract." Id. at 507. According to Judge Cudahy, this principle applies "even to suits for specific performance of contracts where the subject of the contract is real property except when the court's decree would itself operate as a conveyance of the property." Id. (emphasis added).
In Counts II and III of the Complaint, the plaintiffs do not seek to impose personal liability on the defendants based upon their breach of any contractual or other type of duty; as previously indicated, the plaintiffs instead desire a Court order requiring the defendants to foreclosure on foreign property. It is our view that Kavouras, rather than Musicus, is the applicable authority, and more in line with the policy reasons underlying the local action doctrine. In order to allow the plaintiffs to advance under Counts II and III, the Court would be required to extend the bounds of the local action doctrine beyond the standards adopted by the Seventh Circuit in Musicus, the plaintiffs cite no authority which convinces us of the propriety of doing so. Moreover, in cases such as this which involve international jurisdiction, matters of comity make us take the most prudent approach. The plaintiffs' remedy as to the foreclosure of Korean property lies in Korean courts; as a result, Counts II and III must be dismissed.[10]
*1097 IV. SUMMARY
For the foregoing reasons, KEB and Industrial Bank's Motion to Dismiss the Complaint pursuant to Rule 12(b)(1) in the above-captioned matter is hereby GRANTED as to Counts II and III of the Complaint and DENIED as to Count I, and the Korean bank's Motion to Dismiss Counts II and III of the Complaint pursuant to Rules 12(b)(1), (3), and (6) in the above-captioned matter is hereby GRANTED.
SO ORDERED.
NOTES
[1] Specifically, the Court made the following factual findings in Paliafito IV:
"49. On April 21, 1993, the Hans purchased eighty-five percent of the shares of MJ Korea. A fifteen percent interest was retained by Jong Ok Choi, a member of the original shareholder group.
50. The Hans paid approximately 42,500,000 Won (approximately $50,000) for the stock. Min Suk Han also pledged real estate titled in the names of family members to the Korean Exchange Bank to obtain short-term financing for MJ Korea."
Paliafito IV, 852 F.Supp. at 748-49 (emphasis added).
[2] An "agency or instrumentality of a foreign state" entitled to immunity under the FSIA is defined as "any entity (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title nor created under the laws of any third country." 28 U.S.C. § 1603(b). The plaintiffs do not dispute that KEB, a Korean corporation and non-U.S. citizen with 65.289 percent of its issued and outstanding stock owned by the Bank of Korea, and Industrial Bank, a Korean corporation and non-U.S. citizen with 66.54 percent of its issued and outstanding stock held by the Ministry of Finance of the Republic of Korea, qualify as "agencies or instrumentalities" of the Republic of Korea.
[3] Because the burden of persuasion remains on the defendant, the responsibility "shifted" to the plaintiff is rather small, as he or she must simply produce some evidence to support his or her claim that a statutory exception applies. Cf. St. Mary's Honor Ctr. v. Hicks, ___ U.S. ___, ___ _ ___, 113 S.Ct. 2742, 2747-50, 125 L.Ed.2d 407 (1993) (discussing the burden-shifting approach used in Title VII cases); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207, (1981); Kirk v. Federal Property Management Corp., 22 F.3d 135, 138 (7th Cir.1994).
[4] Black's Law Dictionary 149 (5th ed. 1979) defines a "bill of exchange" as
"[a] three party instrument in which first party draws an order for the payment of a sum certain on a second party for payment to a third party at a definite future time. Same as `draft' under the U.C.C. A check is a demand bill of exchange."
[5] The defendants argue that "[t]he case whose facts came closest to those in this case is International Housing Ltd. v. Rafidain Bank Iraq, 893 F.2d 8 (2nd Cir.1989)"; the court in that case, however, addressed the third, rather than the first, clause of the "commercial activities" exception to the FSIA.
[6] For the same reasons, we think it clear that KEB and the Industrial Bank's issuance and delivery of the bills of exchange to the United States and receipt of funds in the United States qualify as "act[s] performed in the United States in connection with a commercial activity of the foreign state elsewhere," thereby allowing the plaintiffs to invoke the rarely-discussed clause two "commercial activities" exception to the FSIA.
Clause three of this exception, which precludes immunity in cases "in which the action is based upon ... an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States" seems likewise applicable. KEB and the Industrial Bank ultimately transferred the funds received from Longreen to Korea. As previously indicated, the plaintiffs' lawsuit is based on this and other acts relating to the import financing provided by the banks; and it seems obvious that, because we have already found that the banks engaged in "commercial activity" through such acts, they are "connected with" commercial activity. See Nelson, 507 U.S. at ___, 113 S.Ct. at 1478 (recognizing that "Congress manifestly understood there to be a difference between a suit `based upon' commercial activity [clause one] and one `based upon' acts performed `in connection with' such activity [clauses two and three]," and that "[t]he only reasonable reading of the former term calls for something more than a mere connection with, or relation to, commercial activity").
The primary issue under clause three, then, is whether such acts, to the extent they were committed outside this country, caused a "direct effect" in the United States. The Supreme Court has "considered the meaning of the phrase `direct effect' and defined it succinctly but clearly: `[A]n effect is `direct' if it follows `as an immediate consequence of the defendant's ... activity.''" Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1146 (D.C.Cir.1994) (quoting Welt-over, 504 U.S. at 617, 112 S.Ct. at 2168). This rejected the definition previously adopted in this and other Circuits which was based on the legislative history of the FSIA: that a "direct effect" was one which was "substantial" and "foreseeable." See, e.g., America West Airlines, Inc. v. GPA Group, Ltd., 877 F.2d 793, 798-800 (9th Cir.1989); Rush-Presbyterian, 877 F.2d at 581; Maritime, 693 F.2d at 1110-1111. In this case, the banks' transfer of the Longreen funds to Korea clearly had a direct effect in the United States; it hampered the plaintiffs' ability to collect on their $8 million judgment.
[7] KEB and the Industrial Bank, of course, present this as an alternative ground for dismissal.
[8] "It is not clear whether the distinction between local and transitory actions runs to the jurisdiction or the venue of the federal courts"; cases have gone both ways. Wright, Miller & Cooper, Federal Practice and Procedure § 3822, at 206-07. In Hayes, the Fifth Circuit found that the local action doctrine effects subject matter jurisdiction. See Hayes, 821 F.2d at 286-88. The latter approach, however, might well be favored, see Wright, Miller & Cooper, Federal Practice and Procedure § 3822, at 207, and has apparently been adopted by the Seventh Circuit, see Musicus, 743 F.2d at 506; nevertheless, because the defendants are clearly not willing to waive any defect in venue, this issue makes little practical difference in this case.
[9] See id.
[10] Pursuant to this decision, the Court need not determine whether the plaintiffs can meet the standard required for postjudgment injunctive relief for Count II or whether the plaintiffs have alleged facts sufficient to state a claim for equitable marshaling. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262589/ | 84 Cal.Rptr.2d 216 (1999)
71 Cal.App.4th 1057
David BLONDER, Cross-Complainant and Respondent,
v.
CUMBERLAND ENGINEERING, Cross-Defendant and Appellant.
No. E022038.
Court of Appeal, Fourth District, Division Two.
April 29, 1999.
*217 Rus, Miliband, Williams & Smith, Joel S. Miliband and D. Edward Hays, Irvine, for Cross-Defendant and Appellant.
Jeffer, Mangels, Butler & Marmaro, Joseph A. Eisenberg, Neil C. Erickson and Mike D. Neue, Los Angeles, for Cross-Complainant and Respondent.
Certified for Partial Publication.[*]
*218 OPINION
RICHLI, J.
Respondent David Blonder, as assignee for the benefit of creditors of Envirothene, Inc., obtained a judgment invalidating security interests held by appellant Cumberland Engineering in certain assets of Envirothene, as preferential transfers under Code of Civil Procedure section 1800. We affirm the judgment, concluding (1) the statute of limitations did not expire on Blonder's preference claim; and (2) Blonder had standing to bring the claim even though he had sold the assets subject to the security interests.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
In February 1995, Cumberland sold a plastics recycling system and auxiliary equipment to Envirothene and at some point received security interests covering the unpaid balances.[1] In June 1995, Cumberland sold Envirothene an additional item known as a granulator and, concurrently with that sale, filed a UCC-1 financing statement to perfect a security interest in that item to cover the unpaid balance. On October 18, 1995, Cumberland filed additional UCC-1 statements to perfect its security interests in the recycling system and auxiliary equipment, which had not been perfected earlier.
On December 7, 1995, Envirothene assigned its assets to Blonder for the benefit of its creditors. The same day, Blonder sold the assets to a third party, Ecosource Corporation.
B. Procedural Background
1. Nature of Action
In July 1996, Cumberland brought the present action against Ecosource, Blonder, Envirothene, and other parties. In its first and second causes of action, Cumberland sought return of the recycling system and auxiliary equipment, or their monetary equivalent, from Ecosource. In its fifth cause of action, Cumberland alleged Envirothene and Ecosource's president had conspired with Ecosource to cause Blonder to convert the proceeds from the sale of the granulator and to cause Ecosource to convert the recycling system and auxiliary equipment. In its eighth, ninth, and tenth causes of action, Cumberland sought to avoid the resale of the assets from Blonder to Ecosource on the grounds it was accomplished to hinder or delay creditors of Envirothene and was not supported by adequate consideration.
Blonder was not named as a defendant in the causes of action described. He was named in two additional causes of action, the third and seventh, which sought recovery of the proceeds of the sale of the granulator on theories of conversion and money had and received.[2]
On December 18, 1996, Blonder cross-complained against Cumberland, seeking to recover Cumberland's security interests in the recycling system and auxiliary equipment. The cross-complaint asserted that the security interests were preferential transfers which were subject to recovery under Code of Civil Procedure section 1800, because they were perfected within 90 days prior to the assignment for the benefit of creditors.[3]
*219 2. Lower Court timings
Cumberland demurred to Blonder's cross-complaint, asserting it was barred by the one-year statute of limitations set forth in Code of Civil Procedure section 1800, subdivision (g), for recovery of a preference.[4] The court overruled the demurrer, concluding that although the cross-complaint was filed more than one year after the assignment for the benefit of creditors, it was timely because it related back to the filing date of Cumberland's complaint.
Blonder then moved for summary judgment on his cross-complaint. Cumberland argued Blonder lacked standing to recover the security interests because he had sold the assets to Ecosource and recovery would benefit only Ecosource and not the creditors of Envirothene. The court ruled no showing of a benefit to the creditors was required under Code of Civil Procedure section 1800 and granted summary judgment for Blonder. Cumberland appealed.
II
DISCUSSION
A. Statute of Limitations[**]
B. Standing
The remaining question is whether Blonder had standing under Code of Civil Procedure section 1800 to seek recovery of Cumberland's security interests in the recycling system and auxiliary equipment. Cumberland contends an assignee only has standing under section 1800 if recovery of the preferential transfer would benefit the assignment estate i.e., the unsecured creditors of the assignor. Cumberland argues Blonder lacked standing because at the time he brought the cross-complaint he had sold the equipment, so that recovery of the security interests would benefit only Ecosource and not the estate.
There are few cases applying section 1800, and none on point. But case law holds, and the parties agree, that section 1800 should be interpreted in accordance with decisions applying the analogous provision of the Bankruptcy Code, 11 USC section 547, cited hereafter as section 547.[8] (Angeles Electric Co. v. Superior Court (1994) 27 Cal. App.4th 426, 430-431, 32 Cal.Rptr.2d 660.) Those decisions generally do not require a showing of benefit to the bankruptcy estate in order to avoid a preferential security interest.
Most closely on point is In re Shea (Bankr.W.D.N.Y.1981) 15 B.R. 822, in which the court held the trustee had standing under section 547 to avoid a lien on real property even though the debtor had sold the property to a third party.[9] The court stated: "[W]hile it is true in this case that the trustee has no interest in the outcome of the controversy, his right to bring the action is statutory. Section 547(b) provides that a `trustee may avoid any transfer of property of the debtor' if the five elements of a preference are present. The section does not limit the trustee's avoiding power to those cases where the estate will be benefited." (Id., at p. 824, italics and fn. omitted.)
The Bankruptcy Appellate Panel of the Ninth Circuit reached the same conclusion in In re Enserv Company, Inc. (9th Cir. *220 64 B.K. 519 (cited hereafter as Enserv). All of the debtor's assets were subject to a security interest in favor of a bank. Therefore, only the bank and not the estate would benefit from the avoidance of conflicting liens. The court nonetheless concluded the debtor could sue to recover funds obtained by another creditor through its levy on a judgment against the debtor within the preference period.[10]
The Enserv court reasoned that the purposes of section 547 discouraging creditors from racing to proceed against an insolvent debtor, and preventing one creditor from obtaining greater payment than others of its class would be served even though the recovered funds would go to the bank and not the estate. It also relied on the literal language of section 547, stating: "Section 547(b) plainly states that the only preferences which will be allowed are contained in Section 547(c).... [¶] Congress did not intend that actions pursued under Section 547 would be subject to question based on equitable considerations, such as who would reap the benefits.... [¶] ... There is no statutory requirement that unsecured creditors or even the estate benefit from the voiding of a preference." (Enserv, supra, 64 B.R. 519 at p. 521.)
More recently, the court in In re Muskin, Inc. (Bankr.N.D.Cal.1993) 151 B.R. 252, although disagreeing with the holding in Enserv, nonetheless followed it in holding that a Chapter 11 debtor in possession could pursue preference actions even though any recovery would benefit only its secured lender and not the estate. (In re Muskin, Inc., supra, at pp. 253-255.)
Cumberland cites In re Acequia, Inc. (9th Cir.1994) 34 F.3d 800 and Wellman v. Wellman (4th Cir.1991) 933 F.2d 215 for the proposition that a debtor or trustee lacks standing to recover a preferential transfer if recovery will not benefit the estate.[11] Both Acequia and Wellman, however, relied on the express language of 11 USC section 550(a). That section provides that, to the extent a transfer is avoided under section 547 or other avoidance provisions of the Bankruptcy Code, "the trustee may recover, for the benefit of the estate, the property transferred...." (Italics added; see Acequia, supra, at p. 811; Wellman, supra, at p. 218.)
Recovery of transferred property under section 550 is different from avoidance of the transfer under section 547. As the court explained in In re Pearson Industries, Inc. (Bankr.C.D.Ill.1995) 178 B.R. 753, a transfer may be avoided i.e. nullified without the additional remedy of recovery. Recovery "`goes beyond avoidance' " and makes the transferee personally accountable to the estate for the return of the property or its value. While "`avoidance, per se, legally annuls the transfer,'" recovery "`provides an additional remedy whenever avoidance alone provides incomplete relief. Recovery is necessary only when annulment of the transfer does not completely satisfy the estate.'" (Id., at p. 759.)
Based on this distinction between avoidance and recovery, the Pearson court reconciled Enserv, supra, 64 B.R. 519, and Wellman v. Wellman, supra, 933 F.2d 215, by noting that Enserv dealt only with avoidance while Wellman dealt with recovery as well.[12] Consequently, while the Enserv court was correct that "there is no statutory requirement under § 547 that unsecured creditors or even the estate benefit from the avoiding of a preference," Wellman was also correct in stating that such a benefit was required for recovery under 11 USC section 550. (In re Pearson Industries, Inc., supra, 178 B.R. at p. 760.)
Although, as Cumberland points out, section 1800 speaks of "recovery" rather than *221 avoidance of preferential transfers, section 1800, like section 547, contains no language limiting the remedy it provides to situations in which the estate will benefit. We are not persuaded that simply because the Legislature used the word "recovery" in section 1800 it intended to incorporate into section 1800 the requirement of 11 USC section 550(a) that any recovery benefit the estate. The Legislature in enacting section 1800 obviously would have been aware of section 550(a). Had it meant to incorporate the benefit requirement of section 550(a) into Code of Civil Procedure section 1800, it would have said so. Instead, it chose to pattern section 1800 after 11 USC section 547, a provision which, as we have seen, imposes no such requirement.
Moreover, the remedy sought by Blonder in this case invalidation of the security interests in the recycling system and auxiliary equipment is analogous to avoidance under section 547, not recovery under section 550. Because the transfers to be avoided consisted of the perfection of security interests, annulment of the interests was a complete remedy and no "recovery" was necessary or even feasible. We therefore conclude the decisions applying section 547, rather than those applying section 550, should govern the application of section 1800 in this case.
Our decision is supported not only by the literal language of section 1800 and the absence of any benefit requirement, but also by the underlying purposes of the statute, which we take to be the same as those underlying 11 USC section 547. As the court noted in Enserv, supra, 64 B.R. 519, those purposes discouraging creditors from racing to proceed against an insolvent debtor, and preventing one creditor from obtaining greater payment than others of its class are served by avoidance of preferential transfers regardless of whether the estate benefits. Additionally, depriving an assignee of standing to pursue preference claims once the assets were sold would effectively require him or her to postpone the sale until after all preference claims had been litigated, with the potential loss of attractive purchase offers received in the interim.
For these reasons, we conclude the lower court correctly ruled Blonder had standing to bring the cross-complaint.[13]
III
DISPOSITION
The judgment is affirmed. Costs to respondent.
HOLLENHORST, Acting P.J., and GAUT, J., concur.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.A.
[1] Cumberland alleged in its complaint that it received the security interests at the time of the sale. Sale documents dated August 9 and 10, 1994, did provide for security interests, but the security agreements subsequently filed with the Secretary of State were dated October 3, 1995.
[2] The remaining causes of action of Cumberland's complaint, the fourth and sixth, are not relevant to this appeal.
[3] Code of Civil Procedure section 1800, subdivision (b) provides in relevant part that "... the assignee of any general assignment for the benefit of creditors ... may recover any transfer of property of the assignor:
"(1) To or for the benefit of a creditor;
"(2) For or on account of an antecedent debt owed by the assignor before the transfer was made;
"(3) Made while the assignor was insolvent;
"(4) Made on or within 90 days before the date of the making of the assignment ...; and
"(5) That enables the creditor to receive more than another creditor of the same class."
There is no dispute that each of these requirements was met in this case.
[4] Code of Civil Procedure section 1800, subdivision (g) provides: "An action by an assignee under this section must be commenced within one year after the making of the assignment."
[**] See footnote *, ante.
[8] Section 547(b) provides: "Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property
"(1) to or for the benefit of a creditor;
"(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
"(3) made while the debtor was insolvent;
"(4) made
"(A) on or within 90 days before the date of the filing of the petition ...; [¶] ... and
"(5) that enables such creditor to receive more than such creditor would receive if
"(A) the case were a case under chapter 7 of this title;
"(B) the transfer had not been made; and
"(C) such creditor received payment of such debt to the extent provided by the provisions of this title." As is apparent, section 1800, subdivision (b) closely parallels section 547(b). (See fn. 3, ante.)
[9] The lower court relied on Shea, but, curiously, neither party cites or discusses the case in the briefing in this court.
[10] The Chapter 11 debtor in possession in Enserv had the avoidance rights afforded a trustee under 11 USC section 547. (See 11 USC § 1107(a).)
[11] Cumberland also cites Grass v. Osbom (9th Cir. 1930) 39 F.2d 461 for the same proposition, but the actual holding in that case was merely that the trustee could not sell his statutory right to avoid a preference. The court did not discuss whether an avoidance action must benefit the estate. (Id., at pp. 461-462.)
[12] In re Acequia, Inc., which reached the same conclusion as did Wellman, also dealt with recovery as well as avoidance. (In re Acequia, Inc., supra, 34 F.3d 800, 811.)
[13] Cumberland makes an additional argument that even if Blonder had standing under section 1800, the transfer to Ecosource of all of Blonder's interest in the recycling system and auxiliary equipment effectively divested Blonder of any right to assert a preference claim as to those items. However, Blonder never purported to assign to Ecosource his right to recover preferential transfers, and even if he had, the agreement probably would have been unenforceable without court approval. (See In re Vogel Van & Storage Inc. (N.D.N.Y.1997) 210 B.R. 27, 32-33 [bankruptcy trustee ordinarily cannot assign right to avoid preference under § 547(b)].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262650/ | 900 F.Supp. 386 (1995)
Wallace W. ANDERSON, Plaintiff,
v.
HOUSEHOLD FINANCE CORPORATION OF ALABAMA, Defendant.
Civ. A. No. 95-D-831-N.
United States District Court, M.D. Alabama, Northern Division.
August 14, 1995.
*387 George B. Azar, Zack M. Azar, Montgomery, AL, for plaintiff.
William D. Coleman, Montgomery, AL, Andrew J. Noble, III, Birmingham, AL, for defendant.
MEMORANDUM OPINION AND ORDER
DE MENT, District Judge.
Before the court is the plaintiff's motion filed July 13, 1995 to remand this action to the Circuit of Montgomery County, Alabama, whence it was removed. The defendant responded in opposition on July 31, 1995.
In the original two-count complaint, the plaintiff avers that in connection with the execution of a note and mortgage, defendant Household Finance Corporation of Alabama (hereafter "Household"), through its agents and employees, misrepresented and failed to disclose material facts which induced the plaintiff to enter into a note and mortgage. Subsequently, the plaintiff amended his complaint to add six additional counts consisting of claims for fraud, misrepresentation, and suppression of material facts. Thereafter, *388 the defendant removed this action, asserting federal-question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441.[1]
The defendant contends that the plaintiff's claim for relief involves the application of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq., and its implementing Regulation Z. In essence, the defendant contends that while the plaintiff has not pleaded a violation of the TILA, the TILA controls in this action. Specifically, the defendant states the cause of action has been composed in terms of the TILA. The plaintiff asserts, however, that he is seeking relief only under state law, thus, precluding removal based upon federal laws and regulation.
Whether the complaint states a federal question must be determined by examining the face of the complaint.[2] As stated by the Supreme Court of the United States:
[o]nly state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant. Absent diversity of citizenship, federal-question jurisdiction is required. The presence or absence of federal-question jurisdiction is governed by the "well-pleaded complaint rule," which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. See Gully v. First National Bank, 299 U.S. 109, 112-13 [57 S.Ct. 96, 97-98, 81 L.Ed. 70] ... (1936). The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987) (internal footnotes omitted).
The court recognizes that the preemptive force of some federal statutes can provide a legal basis for removal of a case from state to federal court even if a plaintiff has framed the complaint to allege violations of only state law. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 1547, 95 L.Ed.2d 55 (1986). For example, the Supreme Court of the United States has determined that issues involving the Labor Management Relations Act, 29 U.S.C. § 185, et seq., and the Employment Retirement Income Security Act, 29 U.S.C. § 1001, et seq., transform state-law claims into ones arising under federal law for purposes of the well-pleaded complaint rule. Caterpillar, Inc., 482 U.S. at 393-94, 107 S.Ct. at 2429-30.
This "complete preemption" doctrine, however, does not apply to the TILA. The TILA does not contain a civil enforcement provision that requires complete preemption of law, nor is there any other manifestation that Congress intended preemption. See General Elec. Capital Auto Lease, Inc. v. Mires, 788 F.Supp. 948, 950 (E.D.Mich.1992) (finding that "[a]bsent in the [TILA] statute are any provisions which purport to demonstrate the preemption of state causes of action").
The defendant also contends that the amended complaint asserts a claim which arises under the laws of the United States, because the plaintiff stated in the amended complaint that the defendant's actions violated "federal and state laws." Pl.'s Am.Compl. at ¶ 28. The court follows the "long-settled *389 understanding that the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813, 106 S.Ct. 3229, 3234, 92 L.Ed.2d 650 (1986); see also Gully v. First Nat'l Bank, 299 U.S. 109, 115, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936) ("Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit"). The standard in invoking federal-question jurisdiction depends on the necessity of resolving a federal issue. As stated by the Supreme Court of the United States:
[a] district court's federal-question jurisdiction ... extends over `only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law,' Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 [103 S.Ct. 2841, 2855-56, 77 L.Ed.2d 420] ... (1983), in that `federal law is a necessary element of one of the well-pleaded ... claims,' id., at 13 [103 S.Ct. at 2848]....
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808, 108 S.Ct. 2166, 2173, 100 L.Ed.2d 811 (1988).
The court does not believe that the plaintiff's right to relief necessarily depends on a resolution of a substantial question of federal law, in that federal law is a necessary element of one of the well-pleaded claims. The court finds that the mere mention of the words "federal laws" does not confer the court with federal-question jurisdiction, particularly when a commonsense reading of the complaint and amended complaint reflects the pleading of state law claims. The causes of action are supported by alternative theories of state law, and the TILA is not essential to any of those theories. The alternative theories of state law include fraud, misrepresentation, suppression of material facts, and fraud in continuing to receive payments. These are state law claims the determination of which must be left to the state court system. Moreover, retaining jurisdiction over this action would interfere with a state court's right to decide and interpret its own law as applied to the facts of this case. Accordingly, the court finds that the causes of action were improperly removed to federal court, because they did not arise under federal law.
Although not mentioned in the defendant's memorandum in opposition to the motion to remand, the court will address the defendant's assertion in its answer that the plaintiff's claims are preempted by federal law, including the TILA and Regulation Z. The court finds that absent "complete preemption" of state causes of action, the defendant cannot establish that a federal court has original jurisdiction by arguing preemption as a defense:
Ordinarily, federal pre-emption is raised as a defense to the allegations in a plaintiff's complaint. Before 1887, a federal defense such as preemption could provide a basis for removal, but, in that year, Congress amended the removal statute. We interpret that amendment to authorize removal only where original federal jurisdiction exists. Thus, it is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.
Caterpillar, Inc., 482 U.S. at 393-93, 107 S.Ct. at 2429 (internal citations omitted).
In sum, the court finds that the defendant has failed to establish that the complaint, as amended, pleads a federal question because: (1) the complete preemption doctrine does not convert the plaintiff's state claims into claims under the TILA; (2) the plaintiff's right to relief does not depend on the resolution of a substantial question of federal law; and (3) the defendant may not remove a case based upon a federal preemption defense. In other words, the court does not have original jurisdiction over this action.
Accordingly, it is CONSIDERED and ORDERED that the plaintiff's motion to remand be and the same is hereby GRANTED and this cause be and the same is hereby *390 REMANDED to the Circuit Court of Montgomery County, Alabama. The clerk is DIRECTED to take all steps necessary to effect said remand.
NOTES
[1] Section 1441 states in part that "... any civil action brought in a State court of which district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending ..." 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1331, a district court has original jurisdiction over all cases "arising under the Constitution, laws or treaties of the United States." However, the Supreme Court of the United States has interpreted the statutory grant of federal-question jurisdiction as conferring a limited power. Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 807, 106 S.Ct. 3229, 3231, 92 L.Ed.2d 650 (1986) (citations omitted).
[2] The court also stresses that the defendant, as the party removing an action to federal court, has the burden of establishing federal jurisdiction. Sullivan v. First Affiliated Secs., 813 F.2d 1368 (9th Cir.1987), cert. denied, 484 U.S. 850, 108 S.Ct. 150, 98 L.Ed.2d 106 (1987). Because the removal statutes are strictly construed against removal, generally speaking all doubts about removal must be resolved in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262670/ | 124 N.J. Super. 244 (1973)
306 A.2d 75
FRANK R. WALLE, RESPONDENT,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SOUTH BRUNSWICK, MIDDLESEX COUNTY, NEW JERSEY, MICHAEL J. MIHALCIK, BUILDING INSPECTOR OF THE TOWNSHIP OF SOUTH BRUNSWICK, MIDDLESEX COUNTY, NEW JERSEY, AND CITY COUNCIL OF THE TOWNSHIP OF SOUTH BRUNSWICK, MIDDLESEX COUNTY, NEW JERSEY, APPELLANTS.
Superior Court of New Jersey, Appellate Division.
Submitted May 21, 1973.
Decided June 12, 1973.
*245 Before Judges CARTON, MINTZ and SEIDMAN.
Mr. Andre Wm. Gruber, attorney for appellants.
Messrs. Garrenger & Rosta, attorneys for respondent (Mr. Joseph J. Rosta, Jr., on the brief).
*246 PER CURIAM.
Defendant municipality, its board of adjustment and building inspector appeal from a judgment in favor of plaintiff property owner ordering the issuance of a certificate of occupancy by defendant municipal building inspector.
In 1963 plaintiff sought a variance to restore an existing masonry building for use as an automobile repair shop. Such repair shops were not then and are not now a permitted use in the township's LI-2 (Light Industrial) zone. The variance was granted subject to three conditions, one of which included the requirement that the owner should not permit more than three motor vehicles incapable of operation to be located outside the building.
From 1963 to July 1971 the building was used as a repair shop for foreign cars. On December 14, 1970 plaintiff was found guilty in the municipal court of violating the condition of the variance and was fined $50.
The premises then remained vacant until March 1972. At that time plaintiff applied to the municipal building inspector for a certificate of occupancy for a new tenant who also intended to use the premises as a repair shop. The application was denied for the reason that it was for a nonpermitted use and that a "[p]revious Variance [had] been voided due to violation of the terms of the Variance."
Plaintiff then instituted this action in lieu of prerogative writs. On defendant's motion and plaintiff's cross-motion for summary judgment the trial court ordered the issuance of the certificate. Hence this appeal.
It is well settled that a variance may be granted subject to conditions. In the present case the resolution granting the variance specifically provided that if the conditions of the variance were violated, "the applicant shall be deemed to be operating without a variance and shall be subject to the penalties provided for violation of the Zoning Ordinance." However, the contention that the variance has become forfeited because of the violation must be construed *247 in the light of the rule that a variance partakes, to a large degree, of the characteristics of a vested right in the land. Industrial Lessors, Inc. v. Garfield, 119 N.J. Super. 181, 183 (App. Div. 1972), certif. den. 61 N.J. 160 (1972).
The situation is essentially similar to that in which a property owner is charged with violating a restrictive covenant. In the case of restrictive covenants courts normally construe a forfeiture provision against the person seeking its enforcement. Equity abhors a forfeiture. Although there may arise situations in which a forfeiture is warranted, such a result should not be permitted if a just result may be obtained by construing the provision as a condition. So here. The municipality in this case had other remedies available for the enforcement of the condition. N.J.S.A. 40:55-47 appears to give a municipality the right in such case to injunctive relief. In addition, it was authorized to take, and did in fact take, proceedings in the municipal court to impose penalties for the violation.
A forfeiture should not be suffered to exist, particularly under the circumstances of this case. It was not until March 1972 that the municipality advised plaintiff it considered the variance to be void. At the very least, it would seem to us that when the plaintiff was found in 1970 to be in violation and fined, it was incumbent upon the municipal authorities to seek to declare the variance void at that time if, in fact, it had any grounds for doing so.
Under the circumstances we construe the conditions of the variance as limiting the right of the municipality to that of imposing fines and seeking injunctive relief.
We see no merit to defendants' additional argument that plaintiff should be denied relief because he failed to obtain site plan review by the planning board, as required by the zoning ordinance as a condition to issuance of a certificate of occupancy for a nonpermitted use. The provision sensibly applied only to the initial certificate of occupancy *248 for a nonpermitted use, not subsequent occupancy for the same use.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262675/ | 306 A.2d 806 (1973)
Richard L. FARRELL et ux.
v.
MEADOWBROOK CORPORATION.
No. 1856-Appeal.
Supreme Court of Rhode Island.
July 9, 1973.
Edward W. Day, Jr., Providence, for plaintiffs.
Bourcier & Bordieri, John P. Bourcier, Joseph F. Penza, Jr., Providence, for defendant.
*807 OPINION
KELLEHER, Justice.
The defendant corporation (Meadowbrook) is before us on an appeal from a judgment entered in the Superior Court after a nonjury trial enjoining Meadowbrook from building a series of garden apartment buildings in a portion of the Garden City section of Cranston.
To most Rhode Islanders, the name Garden City describes an exclusive well-planned residential development located in Cranston and lying between Pontiac Avenue on its east and Reservoir Avenue on its west. The plaintiffs own a single-family home. Its address is "268 Lawnacre Drive, Garden City, Cranston." From a legal point of view, the Farrells' property is designated as lot 129 on a recorded plat entitled "Garden City, Section No. 4, Cranston, Rhode Island, belonging to Garden City Builders, Inc., Peter V. Cipolla, Engineer, August 1951." Lot 129 is a 79 × 100 foot parcel of real estate. It is typical of the lots found on this plat. The Farrells purchased their home in November, 1954.
Meadowbrook is the owner of lot 144. It is not a typical lot as it measures 11.7 acres in area. A portion of lot 144 is swampy, while another portion becomes inundated when the Pocasset River overflows its banks. Meadowbrook purchased this property on June 22, 1971. Both the Farrells and Meadowbrook purchased their respective lots from the original developer, Garden City Builders, Inc. (Garden City Builders). The Farrells' property abuts the Meadowbrook land. Entrance to lot 144 is had by way of a 50-foot strip of land which fronts on Lawnacre Drive.
The Farrells rest their suit upon a recorded-plat restriction which provides that "No structures shall be erected, altered, placed or permitted to remain on any residential building plot other than one detached single-family dwelling not to exceed two and one half stories in height and a detached garage for not more than two cars." "[R]esidential building plot" is not defined. The various lots which appear on the plat map are identified by number, not type. It is agreed, however, that at the time the plat was recorded, the area it depicts was zoned residential.
We agree with the trial justice when he remarked that the very size of lot 144 creates an ambiguity as to whether lot 144 was to be considered the site for one single-family residence or as a location on which several one-family homes could be built. Recorded plats are writings that come within the interdictions of the parol evidence rule. Swanson v. Gillan, 54 R.I. 382, 173 A. 122 (1934). However, the rule presupposes a clearly written unambiguous document. The trial justice was justified in considering parol or extrinsic evidence as to the intent of the developer to resolve the future use of the 11.7-acre lot. Hawkins v. Smith, 105 R.I. 669, 254 A.2d 747 (1969).
Testimony was given by several property owners to the effect that when they purchased their conventionally-sized lots from Garden City Builders, they were told by officials and sales personnel of the developer that it was very unlikely lot 144 would ever be used but that if it were, it would be subject to the same restrictions as all of the other lots on the plat.
Witnesses who were active in the sale of lots on the Section 4 plat denied that they had ever told any of the purchasers that the 11-plus acres were to be devoted to single-family homes.
The Farrells presented evidence which showed Garden City Builders, in its development of other residential areas in Cranston, filed declarations of special covenants and restrictions which, while they were similar to those covering Section 4, had *808 specifically exempted various parcels of real estate in each development from the restrictive covenants contained in each document.
The trial justice was presented with contradictory evidence. He found that the original developer had intended that lot 144 might be subdivided into several lots upon each of which could be built a one-family home. We cannot fault his judgment. Controversies involving the interpretation of restrictive covenants must be decided on a case-by-case basis. Hanley v. Misischi, R.I., 302 A.2d 79 (1973). In the case at bar, the credibility of the witnesses was a crucial factor. Credibility is a matter that lies within the exclusive province of the trial court, not the appellate court. Furthermore, we have in Misischi emphasized that the restriction presently in issue not only protects a property owner's investment but also increases the marketability of his home and since his purchase was undoubtedly motivated by the presence of such a restriction, the owner should have some assurance that the restriction will be fairly and faithfully applied.
Meadowbrook can take little solace in the fact that lot 144 has been rezoned so that it can be used for multi-family dwellings. A zoning ordinance cannot destroy the force and effect of a restrictive covenant. Hill v. Ogrodnik, 83 R.I. 138, 113 A.2d 734 (1955). When defendant purchased lot 144, it was aware, at least constructively, of the restrictions relating to the use of this land.
On the record before him, the trial justice found that Garden City Builders, by its platting of the land in Section No. 4 and recording of the restrictions, had intended to provide a uniform development solely devoted to single-family dwellings. The Farrells could enforce the restrictions against Meadowbrook. Noonan v. Cuddigan, 85 R.I. 328, 131 A.2d 241 (1957). The defendant has failed to persuade us that the trial justice in reaching the result that he did was clearly wrong.
The defendant's appeal is denied and dismissed.
JOSLIN, J., did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262915/ | 84 Cal.Rptr.2d 5 (1999)
71 Cal.App.4th 1036
The PEOPLE, Plaintiff and Respondent,
v.
Dale J. JUNG et al., Defendants and Appellants.
No. B114721.
Court of Appeal, Second District, Division Five.
April 29, 1999.
As Modified May 20 and May 25, 1999.
Review Denied August 11, 1999.
*6 William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant Dale J. Jung.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant Thi Van Nguyen.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and Christina Russotto, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
GRIGNON, J.
Defendant and appellant Dale Jung appeals from a judgment following two jury trials. In the first jury trial, defendant Jung was convicted of kidnapping (Pen.Code, § 207, subd. (a))[1] and mayhem (§ 203) and a great bodily injury allegation was found to be true (§ 12022.7, subd. (a)). The jury was unable to reach a verdict on the charge of torture (§ 206). In the second jury trial, he was convicted of torture. He was sentenced to life in prison. He contends the evidence was insufficient to support his conviction for torture; his life sentence constitutes cruel and unusual punishment; the trial court erred when it denied his request for a mistrial; and the trial court erred when it denied his requests for a continuance and to reopen, and struck the testimony of a witness.
Defendant and appellant Thi Van Nguyen appeals from a judgment following a jury trial. He was tried with defendant Jung in defendant Jung's second jury trial and was convicted of kidnapping, mayhem, and torture and a great bodily injury allegation was found to be true. He was sentenced to life in prison. He contends the evidence was insufficient to support his conviction for torture; the trial court erred when it denied his request for a mistrial; and the trial court erred when it denied his requests for a continuance and to reopen, and struck the testimony of a witness.
The prosecution raises issues concerning the restitution fines.
In the published portion of this opinion, we address the sufficiency of the evidence as to defendants' torture convictions. We conclude substantial evidence supports the finding defendants intended to cause the victim cruel or extreme pain and suffering. In the unpublished portion of the opinion, we address the parties' remaining contentions. We modify the restitution fines and affirm.
FACTS[2]
Fifteen-year-old Donald Hyon was a member of an Asian street gang called Jef-Rox. Defendant Jung was a member of another Asian street gang called Rebel Boys, and defendant Nguyen was a member of a third Asian street gang called Pinoy Real. Rebel Boys and Pinoy Real were allies, and rivals of Jef-Rox. In the evening hours of November 4, 1994, an altercation occurred between members of Jef-Rox and members of Rebel Boys and Pinoy Real. Hyon chased and beat defendant Nguyen. A short time later, defendants and others trapped Hyon in the garage of an apartment building. They beat and kicked Hyon, grabbed him by his hair and forced him to disrobe. They pulled the naked and struggling Hyon from the garage *7 and pushed him into the back seat of defendant Jung's car, a black Acura Integra, where he was bound hand and foot and blindfolded. Defendant Nguyen beat Hyon with his fists. After some minutes of driving, they stopped the car, removed Hyon from the back seat, and placed him in the trunk. They drove for an" additional period. Hyon was removed from the car and taken to a room in a residence.
The five to eight occupants of the room were laughing and jeering. They told Hyon he was going to die. They shoved Hyon onto a couch. They used his body as an ashtray, burning him with cigarettes on both shoulders three to four times. They beat him with their fists and kicked him. They repeatedly hit him on the head and in the face and slapped him. They laid him on the floor and five or six of them jumped on him from the couch. They forced him to drink urine. They bit him on his upper thighs and scratched him. They gave him hickeys on his neck. They put Ben-Gay on his penis, which hurt. They tattooed his back, legs, and arms extensively with a tattoo machine. The needle was painful. After tattooing him, they poured rubbing alcohol over his fresh wounds, which stung. They wrote on his body with magic markers. They shaved the hair on his head. They hit him with hard objects on his backside and legs. They whipped him with a cloth. They placed a hard object between his buttocks. They rubbed and played with his penis and attempted to have him ejaculate. They photographed him and forced him to dance and pose. They dressed him in girl's clothing. They continued to beat him. Hyon curled into a protective fetal position, yet they continued to kick him. On two occasions, defendant Jung told the others to stop hitting Hyon, but defendant Jung made the statements in a sarcastic manner and the beatings did not stop. The attacks continued for several hours, after which they put Hyon in a van, drove him to another location, and released him, still bound, blindfolded, and dressed in girl's clothing. They threatened to kill him and his family and burn his house down if he went to the police. The events of November 4, 1994, had been very scary. Hyon had been in fear.
The incident was reported to the police. Hyon was physically shaken up and bore lumps, tattoos, and hickeys on his body. Because of threats made by defendants and his embarrassment and shame, Hyon downplayed what had happened to him when he spoke to the police. He was uncooperative, reluctant, and resistant. He felt as if his bones were broken, but told the police he felt okay. Hyon refused the police's offer of medical treatment, but saw his pediatrician the next day. At the time of trial, Hyon still bore the tattoos. The photographs taken of Hyon by his attackers at the time of the incident were found in a photo album in defendant Jung's bedroom. The photographs in the album had been captioned. The captions included, "We Offer Only One Type of Treatment," "Cruelty to Animals Leads to Worse," "Battered, Raped, and Veiled," and "Weakness." The photographs reveal a huddled, crying, cringing, naked, blindfolded Hyon.
The defense was misidentification as to defendant Nguyen. As to defendant Jung, the defense was that he had not participated in the torture.
DISCUSSION
I. Sufficiency of the EvidenceTorture
Defendants contend the evidence is insufficient to support a finding they intended to cause Hyon cruel or extreme pain and suffering. We disagree.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt *8 beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most, favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320, 99 S.Ct. 2781, 61 L.Ed.2d 560.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792, 42 Cal.Rptr.2d 543, 897 P.2d 481.) `"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. `"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" [Citations.]"' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 82 Cal.Rptr.2d 413, 971 P.2d 618.)
Section 206 provides: "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain." Defendants do not challenge the sufficiency of the evidence as to the infliction of great bodily injury, nor do they challenge the sufficiency of the evidence as to the purpose of revenge. Their sole sufficiency of the evidence challenge relates to the intent to cause cruel or extreme pain and suffering.
"In section 206, the word `cruel' modifies the phrase `pain and suffering.' In at least two other cases, courts have held that `cruel pain' is the equivalent to `extreme' or `severe' pain. [Citations.] This definition comports with the common dictionary definition of `cruel' [citation], and, in our view, is a reasonable and practical interpretation of that phrase [citation]." (People v. Aguilar (1997) 58 Cal. App.4th 1196,1202, 68 Cal.Rptr.2d 619.)
Defendants argue the evidence establishes an intent to humiliate, but not an intent to cause severe pain and suffering. Although some of the abuse inflicted on Hyon appears to have been intended to humiliate him, such as dressing him in women's clothing, forcing him to drink urine, and forcing him to dance and pose for photographs, the evidence also supports an intent to cause severe pain and suffering. Indeed, there can be no other explanation for the cigarette burns, the application of Ben-Gay to Hyon's penis, the pouring of rubbing alcohol over Hyon's fresh wounds, the beating, the biting, and the kicking. That defendants may have intended to humiliate Hyon, as well as cause him severe pain and suffering, does not defeat their convictions for torture. (Cf. People v.. Healy (1993) 14 Cal.App.4th 1137,1141,18 Cal.Rptr.2d 274.) The evidence clearly supports a finding that in retaliation for Hyon's earlier attack on defendant Nguyen, defendants intended to cause Hyon severe pain and suffering.[3]
Defendants argue the nature of the acts inflicted on Hyon is not comparable to the nature of the acts involved in other reported torture cases. For example, in People v. Barrera (1993) 14 Cal.App.4th 1555, 18 Cal. Rptr.2d 395, the defendant, in order to obtain the victim's cooperation and property, shot a robbery victim in the leg causing an open fracture of his tibia and thereafter forced the robbery victim to walk 15 feet to a shed to obtain a key. The victim was hospitalized for three days and his leg was cast. In People v. Healy, supra, 14 Cal.App.4th 1137, 18 Cal. Rptr.2d 274, the defendant, over a two-week period, beat and battered the victim. "He split her lips, broke her ribs, and stomped on her. He struck her in the jaw, back, arms, neck repeatedly. He flung her in the air so that she landed on the back of her head on the floor. She sustained a fractured jaw, ankle fractures, multiple rib fractures and bruises to her face and torso." (Id. at p. 1139, 18 Cal.Rptr.2d 274.) In People v. Jenkins (1994) 29 Cal.App.4th 287, 34 Cal. Rptr.2d 483, over a six-month period, the *9 defendant beat the victim repeatedly with various objects causing scars, lacerations, bleeding, bruising, broken bones, and a punctured lung. She was hospitalized for eight days.[4]
We agree Hyon apparently suffered no broken bones or injuries to vital organs. He was, however, greatly disfigured and scarred, not to mention severely emotionally traumatized. At the second trial in 1997, he was still unable to testify to the events in 1994 without a loss of composure. That Hyon suffered pain from the cigarette burns, the tattooing, the Ben-Gay and rubbing alcohol applications, the beating, the kicking, and the biting is self-evident, although the severity of the pain was not expressly acknowledged by Hyon. In any event, defendants wrongfully place the emphasis on the injuries or pain suffered by the victim. (People v. Davenport, supra, 41 Cal.3d at p. 268, 221 Cal.Rptr. 794, 710 P.2d 861.) Section 206 expressly eliminates the pain of the victim as an element of the offense. In addition, all that is required as to the nature of the injury is "great bodily injury," i.e., "a significant or substantial physical injury." (§ 12022.7, subd. (e).) Abrasions, lacerations and bruising can constitute great bodily injury. (People v. Escobar (1992) 3 Cal.4th 740, 752, 12 Cal. Rptr.2d 586, 837 P.2d 1100.) The emphasis is rightfully placed on the perpetrator, one who for revenge or other prohibited purpose, inflicts great bodily injury on the victim and intends to cause the victim severe pain and suffering. That other victims of torture may have suffered more than the victim in this case sheds no light on the sufficiency of the evidence of defendants' intent to cause Hyon severe pain and suffering. Here, the circumstances of the offense, including the forced disrobing, the confinement in the trunk of the car, the isolated location, the multiple attackers, the binding of hands and feet, the blindfolding, and the duration of the victim's ordeal, establish the intent to cause severe pain and suffering.
The intent of the perpetrator can be established not only by the circumstances of the offense, but also from other circumstantial evidence. (People v. Raley (1992) 2 Cal.4th 870, 888-889, 8 Cal.Rptr.2d 678, 830 P.2d 712; People v. Mincey, supra, 2 Cal.4th at p. 433, 6 Cal.Rptr.2d 822, 827 P.2d 388.) The other circumstantial evidence in this case is found in the photographs and the later-applied captions. References to violence and cruelty lead to the reasonable inference of intent to cause severe pain and suffering.
We conclude the evidence is sufficient
II.-V.[**]
DISPOSITION
The judgments of conviction are modified to show a parole revocation restitution fine of $10,000, suspended, and the clerk of the superior court is directed to correct the abstract of judgment to reflect both restitution fines and to forward the corrected abstract of judgment to the Department of Corrections. The judgments are affirmed in all other respects.
TURNER, P.J., concurs.
ARMSTRONG, J.
I respectfully dissent.
I do not believe that the record contains substantial evidence that appellants intended to cause Hyon cruel or extreme pain and suffering, a necessary element of the crime of torture, or that the conduct for which appellants were convicted constitutes torture within the meaning of Penal Code section 206. Consequently, I would reduce their torture convictions to the lesser included offense of battery.
As the majority notes, torture is a newly codified crime in California, created on June 5, 1990 when the California electorate passed Proposition 115 in response to the facts in People v. Singleton (1980) 112 Cal. *10 App.3d 418, 169 Cal.Rptr. 333. (See Review of Selected Cal. Legis.Prop. 115: The Crime Victims Justice Reform Act, 22 Pacific Law J. 1010, 1012.) Penal Code section 206 defines torture as follows: "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain."
In People v. Barrera (1993) 14 Cal.App.4th 1555,18 Cal.Rptr.2d 395, the Court of Appeal considered a constitutional challenge to Penal Code section 206 on the grounds that it was vague and overbroad. The Court noted that the statute enjoys "presumptive validity" and "is sufficiently certain if it employs words of long usage or with a common law meaning `notwithstanding an element of degree in the definition as to which estimates might differ.'" (Id. at p. 1563, 18 Cal.Rptr.2d 395, internal citations omitted.)
The court in People v. Berrera concluded that "`Torture' has a long-standing, judicially recognized meaning." (14 Cal.App.4th at p. 1563, 18 Cal.Rptr.2d 395.) Quoting our Supreme Court in People v. Tubby (1949) 34 Cal.2d 72, 207 P.2d 51, the Barrera Court continued: "`Torture has been defined as the "Act or process of inflicting severe pain, esp. as a punishment in order to extort confession, or in revenge." (Webster's New Int. Diet. (2d ed.).) The dictionary definition was appropriately enlarged upon by this court in its original opinion in People v. Heslen, 163 P.2d 21, 27 in the following words: "Implicit in that definition is the requirement of an intent to cause pain and suffering in addition to death. That is, the killer is not satisfied with killing alone. He wishes to punish, execute vengeance on, or extort something from his victim, and in the course, or as the result of inflicting pain and suffering, the victim dies. That intent may be manifested by the nature of the acts and circumstances surrounding the homicide." ...'
"`In determining whether the murder was perpetrated by means of torture the solution must rest upon whether the assailant's intent was to cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity. The test cannot be whether the victim merely suffered severe pain since presumably in most murders severe pain precedes death.' (People v. Berrera, supra, 14 Cal.App.4th at p. 1563,18 Cal.Rptr.2d 395, quoting People v. Tubby (1949) 34 Cal.2d 72, 76-77, 207 P.2d 51.)" (People v. Barrera, supra, 14 Cal. App.4th 1563, 1564, 18 Cal.Rptr.2d 395.) The Barrera Court concluded: "Torture combines a specific state of mind with a particular type of violent conduct causing significant personal injury.... As written, section 206 continues the Tubby definition." (Id. at p. 1564, 18 Cal.Rptr.2d 395.)
In order to secure a conviction for the offense of torture, the People are required to prove that the defendant intended to cause cruel or extreme pain and suffering. "A defendant's state of mind must, in the absence of the defendant's own statements, be established by the circumstances surrounding the commission of the offense. The condition of the victim's body may establish circumstantial evidence of the requisite intent. `In determining whether a murder was committed with that intent [to torture], the jury may of course consider all the circumstances surrounding the killing. Among those circumstances, in many cases, is the severity of the victim's wounds.'" (People v. Mincey (1992) 2 Cal.4th 408, 433, 6 Cal. Rptr.2d 822, 827 P.2d 388, internal citations omitted.)
Thus, for example, in People v. Healy (1993) 14 Cal.App.4th 1137, 18 Cal.Rptr.2d 274, the defendant's torture conviction was upheld based on the following conduct: "Over a period of approximately two weeks Healy battered Laura L. daily. He split her lips, broke her ribs, and stomped on her. He struck her in the jaw, back, arms, neck repeatedly. He flung her in the air so that she landed on the back of her head on the floor. She sustained a fractured jaw, ankle fractures, multiple rib fractures and bruises to her face and torso." (Id. at p. 1139, 18 Cal.Rptr.2d 274.) Moreover, the severity of the victim's injuries was not the only evidence presented of the defendant's intent to inflict cruel or severe pain. The defendant also told the victim that "she never had any real hardship in her life, she was wasting *11 potential because of it, she needed someone to help her to realize her potential, he knew how she could `speed up the process,' and that `he needed to create some hardship' to get her to listen to him." (Id. at p. 1141, 18 Cal.Rptr.2d 274.) On those facts, the court found that there was ample evidence of the defendant's intent to inflict extreme and prolonged pain.
In affirming a conviction for first degree torture murder in People v. Mincey, supra, 2 Cal.4th 408, 6 Cal.Rptr.2d 822, 827 P.2d 388, the Supreme Court ruled that the element of intent to cause cruel pain and suffering can be inferred solely from the condition of the victim's body provided that the wounds are sufficiently egregious to support the inference. The evidence there showed that the defendant beat the five-year-old victim repeatedly over a period of 24 to 48 hours, resulting in hundreds of injuries, including stoppage of the intestinal tract and swelling of the brain. (Id. at p. 428, 6 Cal.Rptr.2d 822, 827 P.2d 388.) While many of the injuries could have been caused by a hand hitting the victim, certain of them could only have been caused by a hard object, such as a board recovered from the scene. The doctor who conducted the autopsy testified that the victim experienced prolonged pain before his death. (Ibid.)
In People v. Raley (1992) 2 Cal.4th 870, 8 Cal.Rptr.2d 678, 830 P.2d 712, the defendant locked two teenage girls in a basement safe, beat them with a club, stabbed them repeatedly, bound them, put them in the trunk of his car where they remained overnight, and threw them down a ravine. One victim died, having suffered 41 stab wounds and a fractured skull. The other survived; she had been stabbed 35 times, had a punctured abdomen, lacerations to the head, chest and thighs, and contusions to the head. (Id. at pp. 882-884, 8 Cal.Rptr.2d 678, 830 P.2d 712.)
In People v. Jenkins (1994) 29 Cal.App.4th 287, 34 Cal.Rptr.2d 483, the defendant was convicted, among other things, of torture of a cohabitant. Over a period of six months, the defendant had beaten the victim on the chest, arms, legs and face with a variety of objects, including an iron pipe, a hammer, a screwdriver, a .357 magnum and a brick. Among the victim's injuries were a collapsed lung, three to eight fractured ribs, a broken nose, swelling in both legs, puncture wounds on her legs, infections at the sites of the puncture wounds caused by the hammer and screwdriver, and scars on her face, chest and legs.
In People v. Proctor (1992) 4 Cal.4th 499, 15 Cal.Rptr.2d 340, 842 P.2d 1100, our Supreme Court found the following evidence sufficient to sustain a finding of torture murder: "In the present case, the victim was subjected to strangulation by two different methods, her wrists were bound so tightly as to cut into her skin, she was beaten in the face severely enough to have caused her eyes to be swollen shut and her lips to be swollen, she received severe blows to other parts of her body, and she suffered repeated, incision-type stab wounds to her neck, chest, and breast area." (Id. at p. 530, 15 Cal.Rptr.2d 340, 842 P.2d 1100.) These latter wounds were described as "a number of shallow stab wounds and incisions caused by dragging a weapon across the skin in the area of the neck. The curvature of some of the injuries indicated they had been inflicted slowly and deliberately." Indeed, the coroner who conducted the victim's autopsy testified that these wounds were inflicted for the purpose of causing pain or fear. (Id. at pp. 516-517, 15 Cal.Rptr.2d 340, 842 P.2d 1100.)
In the each of the foregoing cases, the defendant's intention to inflict extreme or cruel pain could be inferred from the circumstances of the case, including the nature, extent and severity of the wounds suffered by the victim. And in each case, the victim, if he or she survived the assault at all, suffered substantial, debilitating injuries: broken bones, punctured internal organs, multiple stab wounds and gunshot wounds.
As respondent notes, there is no requirement that the victim suffer pain in order for the defendant to be convicted of torture. (Pen.Code § 206.) It is the People's burden, however, to establish that the defendant intended to inflict cruel and extreme pain. Here, the victim testified to the pain he suffered at the hands of his assailants:[1] Hyon said the assault "hurt." That *12 testimony does not support an inference that the people who caused Hyon to "hurt" intended to inflict extreme and cruel pain on him. Neither do the circumstances surrounding the crime support such an inference: Appellants, together with their fellow gang members, bound and blindfolded Hyon and took him to an isolated location. They could do with him what they wished. They did not elect to inflict severe and prolonged physical pain on Hyon. Instead, they chose to humiliate him in various ways: forcing him to dance while wearing women's clothing and to drink urine, applying Ben Gay to his penis, covering his body in alcohol, writing gang-related graffiti on him with felt markers, tattooing him and giving him hickeys. The prosecution presented no evidence that Hyon suffered substantial permanent physical injuries. To the contrary, the only evidence presented on the subject was that after being released, Hyon reported to the police that he felt "okay," and that the detective who interviewed Hyon shortly after the kidnapping did not see any major injuries to Hyon, and did not believe that Hyon needed emergency medical care.
Members of appellants' group did hit, kick, scratch and bite Hyon, burn him several times with a cigarette, and tattoo him during his captivity. The nature and severity of these actions, however, were not described at trial. The jury was not informed, for example, whether the burns on Hyon's shoulders caused blisters, or whether the bites and scratches broke his skin. These acts certainly constitute battery and mayhem. And while the injuries qualify as great bodily injury within the meaning of section 12022.7 (see People v. Escobar (1992) 3 Cal.4th 740, 752, 12 Cal.Rptr.2d 586, 837 P.2d 1100 [abrasions, lacerations and bruising can constitute great bodily injury]), they do not constitute torture.
The majority describe the victim as "greatly disfigured and scarred," I concur that scarring and disfigurement would in many cases constitute strong circumstantial evidence of an intent to inflict severe pain and suffering. (See, e.g., People v. Singleton, supra, 112 Cal.App.3d 418, 169 Cal.Rptr. 333 [severed forearms]; People v. Healy, supra, 14 Cal.App.4th 1137, 18 Cal.Rptr.2d 274 [fractured jaw, ankle and ribs, bruises to face and torso]; People v. Jenkins, supra, 29 Cal.App.4th 287, 34 Cal.Rptr.2d 483 [fractured ribs, broken nose, puncture wounds on legs, scars on face, chest and legs].) Here, however, the evidence of disfigurement and scarring does not support the inference that appellants intended to inflict cruel pain on their victim: Hyon testified that he was burned with a cigarette once or twice on the shoulder, and that he was tattooed on the back, legs and arms. No evidence was admitted at trial concerning the severity of the cigarette burns or whether they left scars; photographs of Hyon admitted at trial show the tattoos. In my view, the record here does not support the conclusion that Hyon was "greatly disfigured and scarred," or the inference that the majority draws from that conclusion: that appellants intended to inflict severe pain on Hyon.
As the facts of the cases detailed above make clear, appellant's conduct simply did not come within the category of conduct, perhaps best described as inspired by pure evil, which the courts have determined to be torture, and which the electorate determined required a minimum life sentence. Penal Code section 206 was enacted by the People of the State of California in response to the particularly heinous facts of People v. Singleton, supra: the defendant kidnapped and sexually abused his victim, then chopped off her hands and dumped her in a ditch in a remote location. Miraculously, the victim survived. (People v. Singleton, supra, 112 Cal.App.3d at pp. 420-422, 169 Cal.Rptr. 333.) The defendant was charged with and convicted of attempted murder, mayhem, kidnapping, and multiple sex crimes. He was sentenced to a total of 14 years, four months in prison, and was paroled after having served just over seven years in prison. (See Review of Selected Cal. Legis.Prop. 115: The Crime Victims Justice Reform Act, 22 Pacific Law J. 1010, 1013, fn. 23.) The new crime of torture was included as part of Proposition 115 "to insure that crimes such as Singleton's receive a minimum punishment of life imprisonment." (Senate Committee on Judiciary, Assembly Committee on Public Safety, Joint Hearing on Crime Victims Justice Reform Act (1990) part 3, at p. 005.) Or, as stated in the Argument in Favor of Proposition 115 which appeared on the ballot, the proposition's "`SINGLETON TORTURE *13 PROVISION assures that no criminal will ever again rape a young girl and hack off her arms, and serve only a minimal punishment, such as the 7½ years Singleton served."
Penal Code section 206 was not enacted to redefine the legal definition of torture; that definition has remained constant throughout the years. (People v. Barrera, supra, 14 Cal.App.4th 1555, 1564, 18 Cal.Rptr.2d 395.) Rather, the crime of torture was codified to ensure that conduct amounting to torture be punished by no less than life in prison, regardless of whether the victim happens to survive, as Lawrence Singleton's victim did. Appellant's conviction for torture does not satisfy the public will by ensuring that "crimes such as Singleton's receive a minimum punishment of life imprisonment." In no way can appellants' crimes compare to the brutality and depravity of Lawrence Singleton's.
In short, the evidence establishes that appellants committed battery and mayhem, and caused Hyon to suffer physical pain and acute emotional distress. It is not my intention to minimize either appellants' conduct or the victim's anguish. However, the evidence also establishes that appellants had an uninterrupted opportunity to inflict severe and prolonged physical pain on Hyon, but did not do so. Appellants did not testify to their intent to inflict cruel or extreme pain, and Hyon testified only that the assault on him "hurt," without any indication that the physical contact between him and his assailants was more than superficial and fleeting. The police officer who examined Hyon immediately after the assault testified that he observed no significant injuries, and that he concluded that Hyon required no emergency medical attention. Hyon himself told the officer that he felt fine. A reasonable jury could not infer from these facts that appellants intended to inflict cruel or extreme pain.
The dictionary definition of "hazing" is to initiate or discipline (fellow students) by forcing them to do ridiculous, humiliating, or painful things. (See Webster's New World Dict. (3d College ed. 1991) p. 620.) This precisely describes what appellants and their cohorts did to Hyon, a rival gang member rather than a fellow student. This conduct was patently offensive, and constitutes battery, as well as the additional crimes of kidnapping and mayhem, of which appellants were convicted.[2] However, to characterize appellants' actions against Hyon, as offensive as they were, as torture is to redefine, and minimize, the gruesome and sadistic nature of torture, which has long been recognized as among the most heinous of human conduct as exemplified by the facts of People v. Singleton and the other torture cases recounted herein. As the Court of Appeal observed in People v. Barrera, supra, 14 Cal.App.4th 1555,1564,18 Cal.Rptr.2d 395, "Torture combines a specific state of mind with a particular type of violent conduct causing significant personal injury." I do not believe that either of these elements of torture are present in this case. Because my colleagues and I have such different views of the type of proof required for a torture conviction under Penal Code section 206, this case may warrant review by our Supreme Court.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II. through V.
[1] All further statutory references are to the Penal Code, unless otherwise noted.
[2] We have taken judicial notice of the trial court exhibits.
[3] We note that the jury was instructed as to a lesser offense of assault with a deadly weapon or with force likely to produce great bodily injury.
[4] First degree murder by torture cases are inapposite because the torture must have caused the death. (§ 189; People v. Proctor (1992) 4 Cal.4th 499, 530, 15 Cal.Rptr.2d 340, 842 P.2d 1100; People v. Davenport (1985) 41 Cal.3d 247, 267, 221 Cal.Rptr. 794, 710 P.2d 861; People v. Wiley (1976) 18 Cal.3d 162, 168, 133 Cal.Rptr. 135, 554 P.2d 881.) Obviously, torture which causes the death of the victim is by its very nature an extreme version of torture. (Cf.People v. Mincey (1992) 2 Cal.4th 408, 432, 6 Cal.Rptr.2d 822, 827 P.2d 388.)
[**] See footnote *, ante.
[1] Because Hyon was blindfolded, he could not identify who among appellants' group actually assaulted him.
[2] It is worth noting that the first jury to hear the evidence against appellant Jung, and which convicted him of mayhem and kidnapping, could not reach a verdict on the torture count. Moreover, the trial court, after hearing the evidence presented against appellant Jung on the torture count, was inclined to dismiss that count pursuant to Penal Code section 1385, but denied the motion to dismiss since Jung's retrial could simply be consolidated with appellant Nguyen's trial on the same count. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262986/ | 32 Cal.Rptr.3d 202 (2005)
131 Cal.App.4th 1003
SOLV-ALL, et al., Petitioners,
v.
The SUPERIOR COURT of the County of San Bernardino, Respondent;
SMS Supermarket Service, Inc., Real Party in Interest.
No. E037021.
Court of Appeal, Fourth District, Division Two.
July 6, 2005.
*203 The Mellor Law Firm and Mark A. Mellor, Riverside; Dunn Koes and Daniel J. Koes, Pasadena, for Petitioners.
No appearance for Respondent.
Higgins Harris Sherman & Rohr, Demitra H. Tolbert and John J. Higgins, Palm Desert, for Real Party in Interest.
OPINION
WARD, Acting P.J.
This is an unremarkable action brought by real party SMS Supermarket Service, Inc. (SMS) against petitioner Solv-All and certain individuals for breach of contract and common counts.[1] After petitioners *204 failed to file timely responses to the complaint, SMS filed a request to enter their default, and default was duly entered on August 26, 2004.
Petitioners then filed a motion for relief, relying on subdivision (b) of Code of Civil Procedure section 473, and arguing both "excusable neglect" and the "attorney fault" provision.[2] In support of the motion, attorney Mark Mellor provided a declaration in which he stated, in pertinent part, "During the time from filing and serving the Complaint and until the date, Plaintiff, SMS SUPERMARKET SERVICE, INC., filed the Request to Enter Default [sic]. Serious negotiations were being held to resolve this Action between both clients and counsel. [¶] Counsel for Plaintiff . . . Demitra H. Tolbert, Esq., gave various extensions of time to answer . . . to the undersigned. . . . Ms. Tolbert granted our office an extention [sic] of time to respond to the Plaintiff's Complaint until July 22, 2004. [¶] During this period of time and the subsequent period following July 22, 2004, wherein our office requested additional time to confirm the terms of settlement without the need for incurring further costs and fees in preparing a response . . . with the idea that those monies could be better put to use in funding a settlement . . . there were continuing discussions back and forth with counsel. . . . Somewhere in those discussions a miscommunication occurred, in that I was awaiting a response from Ms. Tolbert and simultaneously, Ms. Tolbert was awaiting a response from this office. [¶] The last deadline . . . passed, but, as with all of the others and with my belief that Ms. Tolbert would be getting back to our office shortly . . . our office did not file a response. . . . Because both Parties were in brisk negotiations and several deadlines had passed without any Action [sic] by counsel for Plaintiff . . . in the hopes of settlement, I once again let the deadline to answer pass." Counsel then received the request to enter default, and unsuccessfully tried to persuade Ms. Tolbert to have it set aside. Finally, he averred that "Neither the inaction by this office, or the delay in filing a responsive pleading, was due to that [sic] of my clients Defendants, SOLV-ALL . . . SCOTT MARINCEK . . . SUSAN MARINCEK . . . and MARTHA GARCIA. . . . If any fault is to be assigned by this Court, it should be places [sic] upon this office. . . ."
SMS's response, including a declaration by attorney Tolbert, disputed the reasonableness of any belief that a further extension would be forthcoming. She also disputed the claim that attorney Mellor had not been warned that entry of default was imminent if no response was received, and provided a copy of a letter to this effect sent well before the default was entered. Ms. Tolbert also gave the opinion that Solv-All had been deliberately dragging its feet to avoid paying a just debt.
In reply attorney Mellor amplified upon his earlier declaration and denied receiving (or at least seeing) the warning letter referred to in the preceding paragraph. He expressed surprise that, despite what he described as continuing negotiations, Ms. Tolbert had not telephoned him to indicate the urgency of the matter. He stressed that he had been "lulled into a false sense of security;" that this was "my mistake and not that of my clients' [sic];" and urged the court to hold "myself solely responsible and at fault. . . ."
*205 The trial court denied the motion for relief. Its expressed reason was that "counsel was aware of the deadline and apparently just let it slip by and there is no indication of that meets the exception for excusable neglect. [¶] The decision not to answer appears to have been a conscious one to save money rather than a result of negligence, excusable or otherwise."
Solv-All and Martha Garcia petitioned for extraordinary relief. They argue that their showing of "attorney fault" was sufficient and that relief was mandatory under the provisions of section 473, subdivision (b). We agree.
DISCUSSION[3]
We will first briefly consider the argument (briefly made by petitioner) that it was entitled to relief under the purely discretionary provisions of section 473. Such relief depends upon the existence of "mistake, inadvertence, surprise, or excusable neglect." The common requirement is that the error must have been excusable. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258, 121 Cal.Rptr.2d 187, 47 P.3d 1056.) The standard is whether "`a reasonably prudent person under the same or similar circumstances' might have made the same error." (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276, 228 Cal.Rptr. 190, 721 P.2d 71.) In determining whether to grant relief under this provision, the court is vested with broad discretion (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, 211 Cal.Rptr. 416, 695 P.2d 713), and its factual findings are entitled to deference. (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368, 118 Cal.Rptr.2d 71.) It has been repeatedly noted that a decision should only be held to be an abuse of discretion if it "exceed[s] the bounds of reason." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478, 243 Cal.Rptr. 902, 749 P.2d 339; Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271, 135 Cal.Rptr.2d 869.)
Under this standard, it cannot reasonably be contended that the trial court erred in finding that attorney Mellor did not act out of excusable neglect. There was credible evidence that he was aware that real party intendedor at least threatenedto take Solv-All's default if the answer was not filed by the expiration of the last agreed extension. Although attorney Mellor denied receiving the letter to this effect, the trial court was not obliged to believe him. A reasonable attorney aware of the explicit threat would not assume that it would not be carried out, and certainly the trial court did not abuse its discretion in so finding. Petitioner is not entitled to relief on this basis.
We move on to the main issue presented by this case: the scope of the "mandatory relief" provisions. Section 473, subdivision (b) also provides for relief if an application "is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect . . . unless the court finds that the default . . . was not in fact caused by the *206 attorney's mistake, inadvertence, surprise, or neglect." If the statutory conditions are satisfied, the court must grant relief; the statute is mandatory in this regard. (Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1487, 37 Cal.Rptr.2d 575.)[4] The question before us is whether the conditions were satisfied.
The heart of SMS's argument is that the affidavits submitted by attorney Mellor were insufficient because they did not plainly and unequivocally admit fault. It is conceded that petitioners' motion sought relief on the alternate grounds of excusable mistake and attorney fault. (Cf. Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124-1125, 132 Cal.Rptr.2d 680 (Luri), rejecting a contention that relief under the mandatory provisions should be granted whenever the attorney's declaration "suggests" fault, even if the motion is framed solely in terms of "excusable neglect.")[5] Although in his second declaration attorney Mellor more unambivalently falls on his sword, even his first declaration explicitly absolves petitioners, his clients, from any responsibility for the failure to answer.
It is true that Mellor admits that the failure to answer was not accidental or inadvertent, but was the calculated result of his mistaken suppositions. SMS argues, and the trial court below agreed, that a deliberate action by counsel cannot constitute "mistake, inadvertence, surprise, or neglect" and that relief was therefore inappropriate.[6] After examining and considering the purposes behind the "attorney fault" provisions, we are compelled to disagree.
The "attorney fault" language was added to section 473 in 1988. Prior to that time, a litigant who suffered a default or default judgment due to inexcusable attorney error could only obtain relief if he or she could persuade the court that counsel's behavior amounted to "total abandonment" of the client; otherwise attorney conduct that was "simply inexcusable" fell between the two poles and provided no basis for relief. (See County of San Diego v. Department *207 of Health Services (1991) 1 Cal.App.4th 656, 664-665, 2 Cal.Rptr.2d 256.) The amendments were clearly designed to fill this gap. The purpose was threefold: to relieve the innocent client of the consequences of the attorney's fault; to place the burden on counsel;[7] and to discourage additional litigation in the form of malpractice actions by the defaulted client against the errant attorney. (Metropolitan Service Corp. v. Casa de Palms, Ltd., supra, 31 Cal.App.4th at p. 1487, 37 Cal.Rptr.2d 575; accord, Hu v. Fang (2002) 104 Cal.App.4th 61, 64, 127 Cal.Rptr.2d 756.)
In further construing the language of the statute, of course, we should attempt "`to effectuate the law's purpose.'" (Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 990, 47 Cal.Rptr.2d 362.) In our view, doing so requires that "mistake, inadvertence, surprise, or neglect" be broadly defined.
Although in our body of law the term "negligence" implies a careless, but unintentional, failure to act with due care, the word "neglect" is less limited. A child or dog, for example, may be intentionally "neglected." A leading dictionary offers definitions of "neglect" that cover both inadvertent and deliberate acts or omissions: "to fail to attend to sufficiently or properly . . .; to carelessly omit doing (something that should be done) . . . leave undone or unattended to through carelessness or intention." (Webster's 3d New Internat. Dict. (1993) p. 1513, italics added.) It is the latter portion of the second definition which most effectively carries out the legislative purpose in enacting the "attorney fault" provisions. From the client's point of view, it doesn't matter a whit whether the default was due to gross carelessness or bad strategy; either way, the client is the one stuck with the judgment resulting from the attorney's error. In both cases, it is the attorney's "neglect" to carry out his duty to his client that causes the problem. In both cases, the client should be entitled to relief if the attorney admits that the inaction was his responsibility.
We acknowledge that certain authorities appear to weigh against this result, but we find them distinguishable. It must be stressed that attorney Mellor unequivocally declared that petitioners had no part in any conscious decision not to file a timely answer, and this was unrefuted. Certainly if the client is involved in misconduct or neglect, the statutory condition that the default must be "caused" by attorney neglect is not satisfied. But that is not the situation here, and cases in which the courts refuse to grant relief based on the client's personal responsibility are not controlling. For example, in Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 990-992, 40 Cal.Rptr.2d 727, the attorney blamed plaintiff's failure to respond to discovery on his own failure to "provide a level of counsel and support . . . that I would expect to receive if I were a client." He also blamed his own failure to track the time limits. However, on adequate evidence, the court found that it was the client who was factually responsible; although her ill health and other unexplained "personal problems" might have contributed to the lack of response, there was no basis for relief under the "attorney fault" provisions. Less sympathetic is the losing party in Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623, 34 Cal.Rptr.2d 26, who also suffered a default as a discovery sanction, but who was found to be deeply "implicated" in the unsatisfactory responses, which included covering up *208 the existence of documents. Pointing out that relief is only required if the default is "caused" by the attorney, the court upheld a denial of relief because the client was primarily responsible.[8]
But these cases only deny relief because the client is not "totally innocent of any wrongdoing." (See Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248, 92 Cal.Rptr.2d 322, a case factually similar to Johnson v. Pratt & Whitney Canada, Inc., supra, 28 Cal.App.4th 613, 34 Cal.Rptr.2d 26.) As we have noted above, there is no evidence that petitioners were aware of counsel's decision to delay filing an answer, or that they suggested or agreed that he should do so. Thus, on the record before us, they do not share responsibility for the delay.[9]
SMS, however, relies further on a case which denies relief not due to client involvement, but the fact that counsel made a "strategic decision," and to that extent does conflict with our interpretation of the statute as set out above. In State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 109 Cal.Rptr.2d 256 (State Farm), an insurer filed an action in interpleader against its insured and other parties potentially interested in the proceeds of a fire insurance policy. The insured sued his insurer in federal court on various contract and tort theories. After the interpleader action was settled and dismissed, the insurer moved in federal court to dismiss that action on the basis that the insured's claims should have been determined in the state interpleader case. The insured then sought relief under section 473 from the dismissal of the state court case.
His attorney explained that he had read section 386, subdivision (d) (the interpleader statute) as permitting a separate action on affirmative claims against the insurer, and for that reason did not file a cross-complaint. With respect to mandatory relief, the appellate court commented that this lacked the "indispensable admission by counsel" regarding his "mistake, inadvertence, surprise, or neglect." It noted that counsel continued to assert that his interpretation of section 386 was correct, and held that "[a]bsent a straightforward admission of fault . . . [defendant] cannot obtain relief under the mandatory provision of section 473." (State Farm, supra, 90 Cal.App.4th at pp. 608-610, 109 Cal.Rptr.2d 256.)
Undeniably this supports SMS's position. However, we find it to some extent distinguishable; to the extent that it is not, we respectfully disagree.[10]
Significantly, the second prong of the insured/defendant's motion in State Farm was a request for relief under the discretionary provisions. This was, of course, dependent on a showing of excusable neglect. On this point, the Court of Appeal agreed that section 386 was at least ambiguous and that counsel's interpretation was *209 a "reasonable" mistake of law; thus, relief should have been granted. (State Farm, supra, 90 Cal.App.4th at pp. 610-615, 109 Cal.Rptr.2d 256.)
It is therefore apparent that the court's narrow interpretation of the "attorney-fault" language did not, in that case, preclude relief; arguably it was not even essential to the holding. However, insofar as it reflects a holding of the court, we cannot agree.
In addition to apparently declining relief for a deliberate tactical choice, the court in State Farm in essence required counsel to determine whether his mistake was excusable or not. The language we have quoted, if strictly applied, would preclude relief if counsel decided that his mistake was one a reasonable attorney could have made. If the court disagrees with him, he cannot then ask that his client be granted "attorney-fault" relief because he does not confess error. We would point out that an attorney whose error or omission has led to a default has already established the imperfection of his judgment and/or legal acumen. It seems harsh, therefore, to place him then between the Scylla of "it was excusable" and the Charybdis of "I was an idiot," especially as it will be the client who suffers if he is again wrong.
We recognize that in State Farm, counsel did not word his declaration in the alternative with respect to his legal interpretation of section 386; the Court of Appeal therefore decided only that without any confession of fault, relief was unavailable. We agree that counsel who seeks relief alternatively under the "excusable" and "attorney fault" provisions should at least acknowledge the possibility that his "excusable" mistake, neglect, or decision might be determined to have been completely "inexcusable" by the court. However, if counsel does so, and confirms that any act or omission, careless or deliberate, which led to the entry of the default was done without the client's knowing participation, we hold that relief under the mandatory provisions of section 473 is required.[11]
The petition for writ of mandate is granted. The trial court is directed to vacate its order denying relief, and to hold new proceedings at which 1) an order granting relief shall be entered, and 2) the parties may argue the issue of sanctions and compensatory expenses.
Petitioners to recover their costs.
We Concur: GAUT and KING, JJ.
NOTES
[1] The individual defendants were Martha Garcia and Scott and Susan Marincek. Their role is factually unclear, although SMS briefly refers to them as Solv-All's "principles" [sic]. Although the motion for relief sometimes appears to include the Marinceks, relief is only expressly sought as to Solv-All and Martha Garcia. We will sometimes refer to the latter two defendants as "petitioners."
[2] All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.
[3] Attorney Tolbert attached a supplemental declaration to SMS's return, in which she made certain assertions about petitioner's allegedly uncooperative conduct after the hearing. Because we are reviewing the ruling made by the trial court on the record before it, we grant petitioner's motion to strike the declaration.
Petitioner also objects to the statement in the return that attorney Tolbert told attorney Mellor in telephone conversations on August 5, 2004, that her client would move for entry of default if Solv-All did not timely respond. No such assertion was made in the declaration she filed in the trial court. We therefore also disregard these statements.
[4] In the trial court, real party argued that the trial court retained discretion to deny the motion even if the facial requirements of the statute were met. However, the cases it cited for this purported principle involved efforts to expand the scope of mandatory relief beyond the circumstances of default and default judgment to which the statute is expressly limited. (See, e.g., Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 17, 130 Cal.Rptr.2d 263.) Presumably recognizing the distinction, SMS does not now contest the essentially mandatory nature of the "attorney-fault" provision.
[5] Luri notes that the relief sought is to be specified in the notice of motion. (Cal. Court Rules, rule 311(a).) Here, petitioners' notice of motion referred generally to "attorney mistake, inadvertence, surprise and/or neglect" without specifying whether the neglect is claimed to have been excusable or not. The points and authorities, and Mellor's declaration, clearly reference the "attorney fault" provisions. Any defect in the notice was cured by the incorporation of the related papers. (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808, 210 Cal.Rptr. 599.)
[6] Mellor attributes his failure to prepare an answer to his belief that an extension of time would be (or even had been) granted by SMS's counsel. SMS suggestsand not without circumstantial supportthat the delay was simply bad-faith foot-dragging. However, we repeat that there is no evidence that Solv-All's principals were aware of any such strategy.
It may also be pointed out that such foot-dragging, in the context of a failure to answer, is likely to result in a default judgment and that this would not usually be considered an effective delaying strategy! "On the face of it, allowing a default to be taken against defendants is not a rational device by which to hinder and delay the plaintiff." (Metropolitan Service Corp. v. Casa de Palms, Ltd., supra, 31 Cal.App.4th at 1488, 37 Cal.Rptr.2d 575.)
[7] The court must order counsel to pay reasonable compensatory legal fees and costs to the other side, and may order additional penalties of up to $1,000. (§ 473, subdivisions (b) and (c).)
[8] See also Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 44 Cal.Rptr.2d 682, in which the client allowed the time to answer to pass before hiring an attorney; the attorney's subsequent neglect in allowing judgment to be entered did not justify vacating the default, for which he was not responsible.
[9] And note too that other cases do allow relief where the client's mistake contributed to the default, distinguishing cases like Johnson v. Pratt & Whitney Canada, Inc., supra, 28 Cal.App.4th 613, 34 Cal.Rptr.2d 26, as involving the client's intentional misconduct. These cases only require that the attorney error be "a" cause of the default, not the only cause. (E.g., Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 928-930, 104 Cal.Rptr.2d 896.)
[10] Other cases also suggest in dicta that a "strategic decision" or "deliberate tactic" would not or might not justify relief. (E.g., Avila v. Chua (1997) 57 Cal.App.4th 860, 869, 67 Cal.Rptr.2d 373.) Again, we disagree.
[11] Subject, of course, to the trial court's contrary resolution of facts if the record contains conflicting evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1756686/ | 597 So. 2d 1368 (1992)
Jeanne L. SEYMOUR
v.
William SEYMOUR.
2900728.
Court of Civil Appeals of Alabama.
January 17, 1992.
Rehearing Denied February 21, 1992.
Certiorari Denied May 22, 1992.
Richard R. Williams, Mobile, for appellant.
John Coleman, Mobile, for appellee.
Alabama Supreme Court 1910878.
*1369 L. CHARLES WRIGHT, Retired Appellate Judge.
In November 1988 William Seymour filed a complaint for divorce against Jeanne Seymour in the Circuit Court of Mobile County. The wife was residing in Connecticut at the time. After having evidently obtained a satisfactory settlement agreement, the wife filed an affirmative answer admitting the allegations of the complaint as to ages and residences and waiving her right to be present at the taking of evidence or at the submission. She also signed a sworn affidavit alleging that the husband was a resident of Mobile. Subsequent to the pleadings being filed, the Circuit Court of Mobile County entered a decree divorcing the parties.
In 1991 the wife filed a Rule 60(b), Alabama Rules of Civil Procedure, motion alleging that the final judgment of divorce was void for lack of jurisdiction. Following oral proceedings, the trial court denied the motion. The wife appeals.
The wife contends that the trial court erred in refusing to set aside the 1988 judgment. She contends that the judgment was void because at the time the complaint was filed the husband was not a resident of the state of Alabama as required by § 30-2-5, Code 1975.
When the defendant in a divorce case is a nonresident of this state, § 30-2-5 requires that the plaintiff be a bona fide Alabama resident for six months before filing the complaint for divorce. If the residency requirement is not met, then trial courts do not have jurisdiction over the marital res. Chavis v. Chavis, 394 So. 2d 54 (Ala.Civ.App.1981). For purposes of § 30-2-5, residence is the same thing as domicile. Chavis.
It is undisputed that the wife was not a resident of Alabama at the time the complaint was filed. The dispositive issue, therefore, is whether the husband was a bona fide resident of this state for the six months preceding the filing of the complaint.
Where evidence is presented ore tenus, this court will not disturb a lower court's judgment unless that judgment is palpably wrong, without supporting evidence, or manifestly unjust. Kilpatrick v. Kilpatrick, 579 So. 2d 1385 (Ala.Civ.App.1991).
The record reveals that the parties moved to Mobile in May 1987 and purchased a home. The parties sold the home in April 1988. At that time the husband rented an apartment in Mobile. He maintained his registration to vote in Alabama and paid Alabama income taxes for 1988.
The husband testified that after he rented his apartment in Mobile he went to Connecticut to sign a temporary lease for his wife. While in Connecticut the parties worked out the property settlement which later became incorporated into the divorce decree. The settlement agreement was procured with the aid of the wife's Connecticut attorney. Presumably the wife has enjoyed and perhaps dissipated the benefits of the settlement since the judgment.
The wife suggests that at the time the complaint was filed the husband was a resident of Connecticut. She testified that the parties moved back to Connecticut because the husband had gotten his old job back.
The husband testified that he never moved his residency to Connecticut. He stated that he kept his residence in Mobile because he was negotiating employment with a Mobile firm at that time. He testified that he considered Mobile to be his home until he moved to New York in May 1989 following the demise of the employment negotiations.
We find substantial evidence in the record to support the trial courts' determination that the husband was domiciled in Alabama. Although the evidence is in dispute, the trial court's judgment is supported by the record and carries the presumption of correctness.
Although not necessary to the disposition of this case, we point out that this case might have been determined under authority of Levine v. Levine, 262 Ala. 491, 80 So. 2d 235 (1955), and Reiss v. Reiss, 46 *1370 Ala.App. 422, 243 So. 2d 507 (Ala.Civ.App.1970). These cases refused to declare divorce judgments void for lack of jurisdiction on the grounds of estoppel and the equitable maxim of "one that comes into equity must come with clean hands." Levine should be of interest to younger members of the Bar because it originated in the days of so-called "quickie" divorces, which were renowned in the 1950's.
This case is affirmed.
The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724729/ | 289 So. 2d 656 (1974)
In re Gus CONNER, Jr.
v.
STATE.
Ex parte Gus Conner, Jr.
SC 650.
Supreme Court of Alabama.
January 31, 1974.
Sheldon Fitts, Marion, for petitioner.
No brief for the State.
COLEMAN, Justice.
Petition of Gus Conner, Jr. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Conner v. State, 52 Ala. App. 82, 289 So. 2d 650.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, McCALL and JONES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262653/ | 83 Cal.Rptr.2d 603 (1999)
71 Cal.App.4th 82
CITY OF FRESNO et al., Plaintiffs and Appellants,
v.
The PEOPLE ex rel. FRESNO FIRFIGHTERS, IAFF LOCAL 753 et al., Defendants and Appellants.
Nos. F025765, F026444.
Court of Appeal, Fifth District.
April 1, 1999.
Rehearing Denied April 30, 1999.[**]
Review Denied July 21, 1999.
*604 Hilda Cantu Montoy, City Attorney; Sagaser, Hansen, Franson & Jamison, Howard A. Sagaser and Kimberly A. Gaab, Fresno, for Plaintiffs and Appellants.
Daniel E. Lungren, Attorney General, Rodney Lillyquist and Clayton Roach, Deputy Attorneys General, for Defendant and Appellant the People.
Carroll, Burdick & McDonough, Christopher D. Burdick, Rosemary Springer and Martin R. Gran, San Francisco, for the People ex rel. Fresno Firefighters, IAFF Local 753, and Fresno Police Officers' Association, Defendants and Appellants.
Certified for Partial Publication.[*]
OPINION
VARTABEDIAN, Acting P.J.
Karl von Clausewitz wrote that war is a continuation of politics "by other means." (Bartlett, Familiar Quotations (15th ed.1990) *605 443.) In an all too similar way, litigation can be a continuation of labor negotiations by other means: while it may reflect the failure of its less bloody alternative, there is no guarantee that the eventual result of war or litigation will be timely, or even that it will resolve what was at issue in the original diplomacy or negotiation.[1] So it seems in the present case. Not only does this case involve a matter put before the Fresno electorate six years ago but, in addition, we are informed that the relevant employees eventually negotiated for salaries that exceeded the minimums previously established by the city charter provision in question here.[2] Still, the war goes on.[3]
Before us once again, in F025765, is the issue of the efforts of the Fresno City Council and the City of Fresno (hereafter collectively City) to repeal portions of section 809 of the city charter establishing a methodology for setting levels below which salaries for police officers and firefighters could not be negotiated. On this appeal by the People, Fresno Firefighters, IAFF Local 753, and Fresno Police Officers' Association, we conclude the City's actions were not subject to the mandatory meet and confer requirements of the Meyers-Milias-Brown Act (MMBA). (Gov.Code, § 3500 et seq.) Accordingly, the City was not required to bargain to impasse prior to taking the unilateral step of placing the issue of repeal before the electorate. We affirm the judgment.
In the consolidated appeal, F026444, the unions challenge the trial court's denial of an award of attorney fees under section 1021.5 of the Code of Civil Procedure. The unions contend they won a previous appeal in this same dispute; they say the trial court abused its discretion in finding they were in the litigation primarily for pecuniary reasons, not on behalf of the public interest. The City cross-appealed from certain findings made by the trial court. In this instance, too, we affirm the trial court's order.
FACTS AND PROCEDURAL HISTORY
An earlier phase of this case was before us in F018749. We take judicial notice of the nonpublished opinion in that case, filed July 11, 1994, and modified on denial of petition for rehearing on August 10, 1994. The earlier opinion summarizes the factual and procedural history of the case. We quote at length from that opinion, with certain clarifications noted in brackets.
"Background
"Since the mid-1950s, [Fresno Charter] section 809 has prescribed an eight-city formula under which the city council is required to set the [minimum] salaries for police officers and firefighters based upon the average salaries paid to their counterparts in eight designated cities in California.[[4]] The formula *606 [often] has been incorporated into the MOUs[[5]] entered into between City and the unions pursuant to the MMBA [thereby setting the actual wages at the average wage base established by the eight-city formula, although some MOU's have provided for percentage increases or the eight-city average, whichever is higher].
"The MOU's contain provisions referred to by the parties as `zipper' clauses which provide:
"`During the life of this [MOU], shall either party desire to modify its terms or to meet and confer as to matters within the scope of representation not addressed in the [MOU], such party shall request in writing to meet and confer.... During the life of this Memorandum, either party may refuse such request without explanation if the item is directly related to or is an item directly considered herein, or if the item was included in a written proposal of either party during the meet and confer process which led to this agreement, and no unilateral action may be taken thereon after such refusal.'
"In 1988, the Fresno City Council moved to place on the ballot amendments to section 809 which would have repealed the eight-city formula. The [firefighters' and police officers' unions, the present appellants] sought a writ of mandate and [a] preliminary injunction directing City to honor the terms of the MOU's by not taking the unilateral action of placing a measure to modify section 809 on the ballot. In an oral ruling from the bench, the Fresno County Superior Court denied the motion for preliminary injunction, holding that City's action did not violate the intent of the MOU's. After a lengthy and expensive election campaign, the voters rejected the proposed repeal, but a number of influential entities remained opposed to the eight-city formula.
"Facts
"In 1990, City and the unions entered into new MOU's for July 1, 1989, through June 30, 1992 (firefighters), and July 1, 1990, through June 30, 1993 (police officers). According to the unions, during the negotiations, Douglas Furman, City's Labor Relations Manager, stated the city council did not intend to propose a repeal of section 809 during the term of the MOU's because the council did not want to repeat the divisive election fight of 1988. However, the unions were concerned that a citizens' group might attempt to put the repeal on the ballot. As a result, the 1990 MOU's contained language providing for an alternative salary setting method `[i]n the event Fresno Charter Section 809 is eliminated by a vote of the electorate....'
"In February 1992, the city council directed [City Manager] Michael Bierman ... to meet and confer with the unions on a possible repeal, amendment or modification of section 809 so the issue could be submitted to the voters at the November 1992 general election. Bierman wrote the unions requesting they meet and confer on alternatives to section 809. The unions agreed to the request.
"The parties met during April 1992 to discuss ground rules but could not agree on an impasse procedure. City contended it retained the right to take unilateral action, including placing the repeal or modification of section 809 on the ballot, in the event the parties were unable to reach an agreement. The unions countered [that] the zipper clauses precluded such unilateral action during the[] terms [of the MOU's]. While they were willing to waive their right under the zipper clause not to meet and confer on section 809, they were unwilling to waive their [asserted] right to prevent City from taking unilateral action if the talks proved unproductive.
"Procedural History
"In May 1992, City abandoned attempts to negotiate and filed a complaint seeking (1) an injunction directing the firefighters and police officers to meet and confer in good faith, and (2) a declaration that nothing in the existing MOU's precluded it from proposing and having the electorate approve ... amendment, modification or repeal of section *607 809 subject only to City's obligation to provide the unions the opportunity to meet and confer. Concurrently, City sought a preliminary injunction directing the unions to meet and confer in good faith with City regarding an amendment or modification of section 809. The unions opposed the motion for preliminary injunction on a number of grounds. In August 1992, the trial court ... denied the motion for preliminary injunction, concluding the zipper clauses unambiguously precluded City from proposing or passing a resolution regarding section 809.
"City then sought summary judgment/adjudication of its second cause of action for declaratory relief. City argued that nothing in the existing MOU's precluded it from taking action to amend, modify or repeal section 809; alternatively, if the zipper clauses prevented City from so acting, they were unconstitutional and void. The unions filed a cross motion for judgment on the pleadings. They contended City failed to exhaust its administrative remedies and the zipper clauses unambiguously prevented City from proposing charter amendments to the voters on issues addressed in the MOU's.
After a hearing, the court ... denied the unions' motion for judgment on the pleadings and granted City's motion for summary adjudication. In granting the motion, the court stated triable issues of fact existed as to the meaning of the zipper clauses. But, if the unions prevailed on their interpretation that the zipper clauses precluded City from proposing a charter amendment, such an interpretation would be unconstitutional.
The MOUs, as interpreted by [the unions], are in violation of Article XI, section 3, subdivision (b) of the California Constitution in that they permit [the unions] to decide if and when [City] may propose a ballot measure to the voters concerning the repeal or amendment of charter section 809 during the life of the MOUs. This is an impermissible restriction on the constitutional prerogatives of the City under the California Constitution.'
"After City dismissed its first cause of action, the court entered judgment for City on its claim for declaratory relief on October 29, 1992. [The trial court denied the parties' cross-motions for resolution of the declaratory relief cause of action on nonconstitutional grounds. The motions focused on the question whether proposal of modification/repeal of the eight-city formula violated the terms of the zipper clause.] The unions [and the city] appealed from the judgment.
"Post-Judgment Proceedings[]
"On October 27, 1992, the city council adopted a resolution submitting a charter amendment to repeal the eight-city salary formula to the voters at the primary election on March 2, 1993.
"On November 24, 1992, the unions filed a complaint for injunctive relief and a petition for writ of mandate requiring City to meet and confer on section 809 and prohibiting City from holding the election. The court refused to restrain the holding of the election, and 62.4 percent of the voters approved the repeal.
"The Attorney General granted the unions leave to sue in quo warranto [see 76 Ops.Cal. Atty.Gen. 169 (1993)] and, on August 18, 1993, the People of the [S]tate of California, together with the unions, filed a complaint challenging the validity of the election on the ground City failed to meet and confer with the unions prior to submitting the proposed repeal to the voters. The superior court consolidated the unions' two actions and they are pending in the superior court." (F018749, pp. 3-8.)
The Previous Appeal
The unions and the City both appealed from the October 29, 1992, judgment. As relevant here, the unions contended the zipper clauses, as they interpreted them, were not unconstitutional and that they were entitled to judgment on the pleadings on the City's declaratory judgment cause of action. The City contended that even if the zipper clauses were constitutional and were interpreted as the unions did, the issue of modification/repeal of the eight-city formula was not included in the zipper clause. Accordingly, the City contended, it was entitled to summary adjudication on the declaratory relief *608 count even if the trial court was wrong on the constitutional issue.
In this court's opinion, as modified, the court held that the zipper clauses, interpreted to preclude the City from proposing to the electorate the modification of a provision of an MOU during the effective term of the MOU, did not violate the home rule provisions for charter cities under article XI, section 3, of the California Constitution. In addition, this court concluded that triable issues of fact existed precluding summary adjudication on the City's declaratory relief cause of action. In essence, this court concluded that the City had not established, in the record then before the court, that the City intended to negotiate only for post-MOU modification or repeal of the eight-city formula. In addition, this court found a triable issue of fact concerning whether postcontractual modification/repeal of the eight-city formula had been "included in a written proposal of either party during the meet and confer process which led to" the existing MOU's, thereby bringing it within the zipper clauses in the first place. The court remanded the case for trial.[6]
Proceedings on Remand
A trial on the consolidated cases was held in February of 1995 before Judge Quaschnick. After extensive posttrial briefing and proceedings, the court issued its "Ruling, Final Statement of Decision, Findings Regarding Issues of Fact and Issues of Law" on November 14, 1995. In its 33-page decision, the court found the following:
1. The zipper clause did not pertain to the modification/repeal of the eight-city formula. (Although unstated, it appears from the context that the court was referring to a modification/repeal with post-MOU effect only.) Accordingly, the City was entitled to declaratory judgment that "nothing in the existing MOUs precluded [the City] from proposing and having the electorate approve an amendment, modification or repeal of section 809 subject only to City's obligation to provide the Unions the opportunity to meet and confer."
2. The unions engaged in bad faith bargaining, particularly in their insistence that the City agree, in advance of any substantive negotiations, that it would not take unilateral action to propose modification/repeal of the eight-city formula if the negotiations failed to result in an agreement. As a result of the unions' bad faith bargaining, the unions waived their right to meet and confer, and the City was entitled to place the issue of repeal of the eight-city formula on the ballot.
3. Repeal of the eight-city formula in March of 1993 did not affect any terms or conditions of existing MOU's because (a) all salary terms for the years expressly covered by the MOU's had already been set using the formula, and (b) "the parties had already agreed in advance what the wages would be in the event that Charter Section 809 was repealed."
4. In any event, repeal of the eight-city formula was a permissive, not mandatory, subject of bargaining under MMBA; accordingly, the City was not required to bargain to impasse before taking unilateral action concerning that issue.
5. The City met and conferred with the unions in good faith before placing on the ballot the question of repeal of the eight-city formula. However, the "proposed repeal of Charter Section 809 fell outside the scope of representation (as that phrase is used in [MMBA]), as the proposed changes to Charter Section 809 had only post-contract effect." As a result, impliedly, the City had no duty to meet and confer at all concerning repeal.
On February 2, 1996, the court entered judgment in favor of the City in the consolidated actions.
*609 MMBA and the Issues on Appeal
MMBA recognizes the existence and legitimacy of public employee labor unions, which it refers to as "employee organizations." (Gov.Code, §§ 3501-3503.)[7] Section 3504 says that the "scope of representation [by such unions] shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order."
Section 3505 requires, inter alia, cities to "meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of ... recognized employee organizations, ... and shall consider fully such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action. [¶] ... The process should include adequate time for the resolution of impasses where specific procedures for such resolution are contained in local rule, regulation, or ordinance, or when such procedures are utilized by mutual consent."
In combination, sections 3504 and 3505 essentially map out the same territory for bargaining (conditions of employment) and exemption from bargaining (management prerogatives) that has been mapped out in federal case law under the National Labor Relations Act (the NLRA). (See Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 614-616, 116 Cal.Rptr. 507, 526 P.2d 971.) Thus, under MMBA the governmental employer has a duty to meet and confer concerning all matters within the scope of representation of its employees by the union. (See San Francisco Fire Fighters Local 798 v. Board of Supervisors (1992) 3 Cal.App.4th 1482, 1490, 5 Cal.Rptr.2d 176; Wright v. City of Santa Clara (1989) 213 Cal.App.3d 1503, 1506, 262 Cal.Rptr. 395.)
In F025765, the unions contend that repeal of the eight-city formula is within the scope of representation under MMBA and constitutes a mandatory issue upon which the City must meet and confer.[8] As a result, the City was required to bargain to impasse and to use existing impasse resolution procedures, as required by MMBA, before acting unilaterally to place the issue of repeal before the voters. In addition, the unions contend they did not bargain in bad faith or refuse to bargain. Accordingly, they contend, the trial court erred in finding they waived the right to meet and confer to impasse on the repeal issue.
The City contends the repeal issue was a permissive subject of bargaining due to the nature of the charter provision or, in the alternative, that there was no duty to bargain at all because repeal would have had only post-contract effect. Further, the City contends, it fulfilled its duty to meet and confer as that duty is prescribed by MMBA and case law. Finally, the City contends the unions did not meet and confer in good faith, thereby "relieving the City of any obligation it may have had to meet and confer on the repeal of section 809."
In F026444, the sole issue is whether the trial court abused its discretion in denying the unions' motion for an award of attorney fees, requested pursuant to Code of Civil Procedure section 1021.5, in connection with *610 the earlier appeal of the declaratory judgment action. The parties dispute whether the unions were the prevailing parties and whether they were primarily motivated in the litigation by their own pecuniary interests.
DISCUSSION
I. The MMBA Issues (F025765)
A. Mandatory v. Permissive Subject of Bargaining
The trial court concluded that repeal of charter section 809 was a permissive, not mandatory, subject of bargaining. As such, the court concluded the City had no duty to bargain to impasse or use the impasse resolution provisions of the municipal code.[9] We examine these conclusions.
In determining whether the City had a duty to meet and confer concerning repeal of the eight-city formulathat is, whether the city charter provision was a mandatory subject of bargaining within the statutory "scope of representation"it will be useful to reiterate the relevant portion of charter section 809 (see fn. 4, ante): "salaries of the members of the police and fire departments of the City shall be fixed annually at an amount not less than the average monthly salaries (Emphasis added.) The MOU's themselves provided (using the example of the 1990-1993 police MOU): "Salaries ... shall be established pursuant to the first paragraph of Charter Section 809 It is clear that, while salaries were in fact calculated based on the eight-city formula, the use of that calculation in any particular MOU was established through collective bargaining, not by the terms of charter section 809 itself.
The parties have not cited to us, nor have we discovered, any case which holds that enactment, modification or repeal of a minimum salary law is or is not a matter within the scope of representation. The unions place great reliance on People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 205 Cal.Rptr. 794, 685 P.2d 1145 (hereafter Seal Beach.) That case, however, is not helpful in resolving the question before us.
At issue in Seal Beach was the action of a city in proposing to the electorate a charter amendment requiring the termination of city employees if they participated in any strike; the proposed amendment also prohibited the city from rehiring any such workers. (36 Cal.3d at p. 595, 205 Cal.Rptr. 794, 685 P.2d 1145.) The city placed the measure on the ballot without first meeting and conferring with the relevant public employee unions. The measure was adopted by the electorate and several unions sued in quo warranto to invalidate the election. The Supreme Court concluded that negotiation over this charter section, which would directly set a "condition of employment," was required, notwithstanding the city council's express right under the California Constitution to propose charter amendments. (Id. at pp. 597-598, 601, 205 Cal.Rptr. 794, 685 P.2d 1145.)
The question in the present case is not whether the California Constitution exempts the City from bargaining about a change in a matter admittedly within the scope of representation, as in Seal Beach. The question here is whether charter section 809 is a matter within the scope of representation at all. (See Building Material & Construction Teamsters' Union v. Farrell (1986) 41 Cal.3d 651, 657-658, 224 Cal.Rptr. 688, 715 P.2d 648.) This latter question was not addressed in Seal Beach; consequently, Seal Beach is of limited assistance.
The question whether charter section 809 is a matter within the scope of representation is, in our opinion, a close and difficult one. On the one hand, the eight-city formula only establishes "a policy of parity" between local firefighter and police wages and those in other large California cities. (Kugler v. Yocum (1968) 69 Cal.2d 371, 383, 71 Cal. Rptr. 687, 445 P.2d 303, italics added.) As such, it merely sets the City's initial barging *611 position, as the unions recognize.[10] Establishment of an initial bargaining position clearly would seem to be in the nature of a "general managerial policy decision" exempt from the meet and confer requirements of section 3505 pursuant to section 3504, in the same way, for example, the composition of the City's negotiating committee would be exempt from mandatory bargaining. (Gorman, Basic Text on Labor Law (1976) Subjects of Collective Bargaining, p. 527; see Seal Beach, supra, 36 Cal.3d at p. 602, 205 Cal.Rptr. 794, 685 P.2d 1145, quoting from Fire Fighters Union v. City of Vallejo, supra, 12 Cal.3d at p. 615-616, 116 Cal.Rptr. 507, 526 P.2d 971.)[11] Charter section 809, in fact, only establishes wages directly when the collective bargaining process has broken down and impasse on the issue of wages has resulted. Then, and outside of the collective bargaining process, charter section 809 becomes a wage-setting provision; before that time, it merely establishes a mandatory bargaining position for the City.
It is in this sense that the trial court correctly observed, in support of its finding that repeal of charter section 809 was merely a permissive subject of bargaining: "The repeal of Charter section 809 did not place any impediments to future meet and confer under [MMBA] and the only effect the repeal ... had was to require the parties in the future to meet and confer in good faith...."
Different considerations would be involved if the charter section in question actually set wages, as is the case in some prevailing wage charter provisions. (See, e.g., City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 906, 120 Cal.Rptr. 707, 534 P.2d 403 [charter provision required that public employee wages "`shall be in accord with the generally prevailing rates of wages for like service and working conditions in private employment or in other comparable governmental organizations in this state'"].) In those cases, the charter provision establishes the wages, and repeal of the charter section would be subject to negotiation (Seal Beach, supra, 36 Cal.3d at pp. 600-601, 205 Cal. Rptr. 794, 685 P.2d 1145); in the present case, charter section 809 does not purport to set wages. As such, the literal terms of charter section 809 would not bring it within the statutory "scope of representation."
On the other hand, one California case has recognized the practical effect of a minimum salary provision may be to set wages at that minimum level. In San Francisco Labor Council v. Regents of University of California (1980) 26 Cal.3d 785, 790, 163 Cal.Rptr. 460, 608 P.2d 277, Justice Clark wrote for a unanimous court, albeit as dicta: "A statute requiring payment of prevailing wages or more is effectively a salary setting statute. Public agencies' use of taxpayers' funds to pay in excess of a prevailing wage is unwarranted, and while the statute purports to establish a minimum wage, it in effect determines the wage." In the present case, the eight-city minimum became the actual wage incorporated into the MOU's in some instances.[12]
Nevertheless, on balance we believe we must give effect to the words of charter section 809 as a statement of the City's fundamental labor policy, and not merely to the practical effect it has had in firefighter and police wage negotiations. (Building Material & Construction Teamsters' Union v. *612 Farrell, supra, 41 Cal.3d at p. 660, 224 Cal. Rptr. 688, 715 P.2d 648.)[13] We conclude the unions had no stake under MMBA in determining whether the citizens of Fresno directed an opening bargaining position to be assumed by the City's labor negotiators. Therefore, we conclude the minimum salary formula of Fresno City Charter section 809 was not a mandatory subject of bargaining; that is, it was not a matter within the scope of representation.
B. Fresno City Charter Section 809 as "Interest Arbitration"
The trial court also found that charter section 809, when viewed in light of the unions' interpretation of the zipper clauses, constituted "a form of interest arbitration and therefore is a permissive subject of bargaining." In the view of the trial court, the contention of the unions was that the zipper clauses made the eight-city formula the mandatory basis for firefighter and police salary scales until the unions agreed otherwise, since the eight-city formula had been incorporated into the existing MOU's. Thus, unless the unions agreed otherwise, the zipper clauses would resolve the issue of wages upon impasse nonconsensually by operation of the eight-city formula, in much the same way the parties would be bound by an arbitrator's determination of a wage dispute under a contractual "interest arbitration" clause.
The unions disagree that their position is "a form of interest arbitration" in any relevant sense. First, they assert that Fresno City Charter section 809 does not provide for any kind of "interest" or otherwise. Second, they contend the zipper clauses, properly interpreted, do permit unilateral action by the City once then-current MOUs have expired and the City has followed the meet-and-confer process to the end. Before we address these contentions, we will establish the context of the discussion.
Interest arbitration involves an agreement between an employer and a union to submit disagreements about the proposed content of a new labor contract to an arbitrator or arbitration panel. (See, e.g., Fire Fighters Union v. City of Vallejo, supra, 12 Cal.3d at pp. 612-614, 116 Cal.Rptr. 507, 526 P.2d 971; see also N.L.R.B. v. Columbus Printing Pressmen, etc. (5th Cir.1976) 543 F.2d 1161, 1163, fn. 4.) The present scheme obviously is not interest arbitration per se but, as the trial court implied, it may be viewed as analogous in important ways, particularly if the zipper clauses were to be interpreted as the trial court thought the unions meant to interpret them.
The analogous problem in NLRA interest arbitration cases arises in the following circumstances: Interest arbitration clauses are a permissive, not mandatory, subject of bargaining. They are, however, generally enforceable if the parties have voluntarily included such a provision in the contract. (Sheet Metal Workers v. Aldrich Air Conditioning, Inc. (8th Cir.1983) 717 F.2d 456, 458.) At the end of a contract term, when the parties begin negotiating a new contract, an employer may announce it no longer wants interest arbitration. May the union invoke the interest arbitration provisions of the current contract to force the employer into arbitration on the continuation of interest arbitration itself in the new contract?
Federal courts deciding the matter under the NLRA have concluded "that an interest arbitration clause is unenforceable insofar as it applies to the inclusion of a similar clause in a new collective bargaining agreement." (Sheet Metal Workers, supra, 117 F.2d at p. 459; see also Beach Air Conditioning v. Sheet Metal Workers Int. (9th Cir.1995) 55 F.3d 474, 478; American Metal Products v. Sheet Metal Workers (9th Cir.1986) 794 F.2d 1452, 1457.) In other words, the courts will not permit interest arbitration clauses to be self-perpetuating.
A zipper clause that required union approval before the City could repeal or even insist on negotiations on the repeal of the eight-city formula would render the eightcity formula self-perpetuating. In that sense, public policy and delegation of legislative power concerns likely would void the *613 zipper clauses in the same manner the federal courts have voided self-perpetuating interest arbitration provisions. (See Kugler v. Yocum, supra, 69 Cal.2d at pp. 376-377, 71 Cal.Rptr. 687, 445 P.2d 303; City of El Cajon v. El Cajon Police Officers' Assn. (1996) 49 Cal.App.4th 64, 72-73, 56 Cal.Rptr.2d 723.) In that sense, the trial court correctly concluded the wage formula, as implemented by the zipper clauses, was "a form of interest arbitration."
The course of this litigation, however, has refined the parties' positions somewhat. It appears the unions do not now, if they ever did, assert that the City is prohibited from proposing repeal of the eight-city formula unless the unions permit it to do so. Initially, both parties agree that the zipper clauses have the effect of preventing the City from forcing the unions to meet and confer on modification of the wage-setting formula to take effect during the term of an existing MOU. Further, the parties agree that after the MOU's have "technically expired" the City may force negotiations on a change in the wage-setting formula and eventually (i.e., after unresolved impasse) act unilaterally to change the wage formula. The question, as the unions see it now, is only whether the City may insist, during the term of the existing MOU's, that the unions meet and confer on a change in the wage-setting formula if that change will take effect only after the current MOU's expire.
The unions' clarification that the City is permitted to insist on negotiations on the eight-city formula after the expiration dates of the current MOU's undermines the basis for the trial court's analogy between the zipper clauses and interest arbitration. If the zipper clauses permit the City to insist on negotiation, bargain to impasse and then take unilateral action within a reasonable time, they do not violate the public interest in the same manner an indefinitely self-perpetuating zipper clause would. (See N.L.R.B. v. Columbus Printing Pressmen, etc., supra, 543 F.2d at p. 1168.) Based on the unions' proposed interpretation of the zipper clauses, we conclude the zipper clauses and the eight-city formula are not "a form of interest arbitration."
C. The Unions' Interpretation of the Zipper Clauses
Even though we agree with the unions that the zipper clauses are not void, the question remains whether the clauses operate in the manner asserted by the unions. The unions contend the clauses must be interpreted to permit the unions to refuse a demand to meet and confer on any subject within the ambit of the clauses until after the date the unions call "the technical expiration of the MOU," that is, until after the date on which the contract states it will terminate. This court expressly decided in its prior opinion that such an interpretation of the contract would be unreasonable:
"Under the unions' interpretation, because the contract refers to section 809 and section 809 concerns wages generally, that general subject matter cannot be brought to the negotiating table during the life of the contract even though the party requesting to meet and confer does not intend by the request to modify or add a term to the current contract. That interpretation is unreasonable." (Fn.omitted.)
The unions have not suggested any reason why this determination in the earlier opinion is not the law of the case. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 896, 903, pp. 930-931, 938 [collecting cases].) Nor do they argue that our previous determination was wrong. They simply ignore the prior determination and assert: "To the extent that it takes time to place an amendment on the ballot, the City can certainly invite negotiations on the proposed amendment immediately upon the MOU's technical expiration."
As stated in the modification of the prior opinion, "the general purpose of a zipper clause is to `zip up' the collective bargaining agreement. It insulates both parties to the agreement from a demand by the other party to reopen negotiations with the intent of modifying or adding to the current contract terms or otherwise changing the status quo." It does not insulate the unions (or the City) from timely requests to begin bargaining about the next MOU. As before, we conclude *614 the unions' interpretation of the zipper clauses to the contrary is unreasonable.
D. Unilateral Changes: The City's Intent and the Post-Contract Status Quo
A determination that the clauses permit a pre-termination demand for negotiations about post-termination changes does not, however, end the inquiry. In the previous opinion, this court decided the City had not established "that its intent in requesting to meet and confer in Spring 1992 excluded [the request] from the provisions of the zipper clause." Thus, there was a two-fold determination for the trial court on remand. First, was the City requesting to renegotiate the wage provisions of the existing MOUs when it offered to meet and confer on the eight-city formula in 1992, or was it proposing negotiations for changes effective after the expiration of the existing MOU's? Second, did obligations of the City under MMBA obligations that survived the "technical expiration" of the MOU'spreclude the City from unilaterally proposing to the electorate a change in charter section 809 prior to exhaustion of impasse resolution procedures?
At trial, City Manager Bierman testified: "Whatever we were putting on [the table concerning Fresno City Charter section 809] was not going to be retroactive, it was prospective and so it didn't [a]ffect current contracts." The unions have pointed to no evidence indicating a contrary position by the City, and we have found none. Bierman's testimony provides substantial evidence to support a finding that there was no request by the City to meet and confer on a change to the wage provisions of the then-current MOU's.
As to the second question, the unions contend the continuing duty of the employer to maintain the status quo after expiration of an MOU prohibited the City from unilaterally proposing repeal of charter section 809. (See generally Zerger et al., Cal. Public Sector Labor Relations (1998) Duty to Bargain, § 10.06[1], pp. 10-28 to 10-31; Gorman, Basic Text on Labor Law, supra, Duty to Bargain in Good Faith, pp. 439-443.)
"The duty to bargain requires the public agency to refrain from making unilateral changes in employees' wages and working conditions until the employer and employee association have bargained to impasse; this duty continues in effect after the expiration of any employer-employee agreement." (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 537, 28 Cal. Rptr.2d 617, 869 P.2d 1142.) Thus, in San Joaquin County Employees Assn. v. City of Stockton (1984) 161 Cal.App.3d 813, 207 Cal. Rptr. 876, the city had agreed in the MOU to "provide" certain insurance benefits. After expiration of the MOU, and while negotiations on a new contract were proceeding, the cost of such insurance increased by $19 per month per employee. The city unilaterally deducted $19 from each employee's monthly wages to cover the difference, claiming that payment of premiums at the previous level was the "status quo" it was required to maintain under MMBA. (Id. at p. 818, 207 Cal.Rptr. 876.) The appellate court disagreed. It noted that the MOU called for the city to provide insurance, not to pay a certain premium. Accordingly, maintenance of the status quo required the city to pay the increased premiums to meet its obligations under the expired MOU. (Id. at p. 820, 207 Cal.Rptr. 876.)
In the present case, the MOUs provided that the wages of firefighter and police employees would be set "pursuant to City Charter Section 809." The duty of good faith bargaining under MMBA required the City to continue to pay wages in accordance with the eight-city formula contained in charter section 809 unless and until the parties agreed otherwise or had exhausted the impasse procedures. That is true, however, regardless of whether section 809 was still in the Fresno City Charter or had been repealed. The duty to bargain in good faith established in MMBA is a matter of statewide concern and of overriding legislative policy, and nothing that is or is not in a city's charter can supersede that duty. (Seal Beach supra, 36 Cal.3d at p. 600, 205 Cal. Rptr. 794, 685 P.2d 1145.)
In fact, it appears from the record the City fully appreciated its duty to continue the terms and conditions of employment established by expired contracts until the meet-and-confer *615 process on a new contract was completed. It also appears the firefighters' union had previously been successful against the City in litigation arising from the City's failure to maintain the existing pay structure after expiration of an earlier MOU. And the City apparently continued to abide by the salary terms of the MOU's that expired after repeal of charter section 809, during the period until new MOU's were signed. The unions do not contend the City took unilateral action concerning actual firefighter and police wages.
The unions do contend, however, that the City undertook prohibited unilateral action in changing the city charter from which the wage formula originally was taken. We disagree. We return to the point we made at the beginning of the discussion in this opinion: even if the unions are entitled to have the City pay wages at a certain level or under a certain formula under an existing MOU, they are not entitled to have the City's initial negotiating position on new MOU's frozen into the city charter. That is why the City's witnesses, particularly Douglas Furman, its chief labor negotiator, were entirely correct in asserting that there was a difference between repeal and alteration of charter section 809. If a proposal for a substitute charter section, such as the binding arbitration suggestion the parties discussed for months, would result in a mechanism for setting wages, it was subject to mandatory bargaining to impasse. (See Huntington Beach Police Officers' Assn. v. City of Huntington Beach (1976) 58 Cal. App.3d 492, 503, 129 Cal.Rptr. 893.) However, repeal of the eight-city formula as a minimum threshold for wages did not set wages at any particular level; more importantly, repeal still permitted the parties to agree through the meet-and-confer process that the exact same eight-city formula would set the wages under the MOUs. (See San Luis Obispo County Employees' Assn. v. Freeman, supra, 30 Cal.App.3d at p. 517, 106 Cal.Rptr. 357.) As a result, we conclude placing on the ballot a proposal to repeal charter section 809 did not in any manner change the "status quo" between the City and its firefighter and police employees, as that term is used under MMBA.
E. Summary of Holdings in F025765
We have reached three conclusions that, taken together, require that we affirm the judgment in this case. Those are: (1) Repeal of charter section 809 was a permissive, not mandatory, subject of bargaining; bargaining to impasse was not required. (2) Repeal of charter section 809, with postcontract effects only, was not within the scope of the zipper clauses. (3) The City's action in placing a repeal proposal on the ballot did not change the status quo established by the expiring MOUs so long as wages continued to be set consistent with the eight-city formula during negotiations on new MOU's.
As a result of these conclusions, we are not required to review other findings of the trial court, and we express no opinion on those. In particular, we reach no conclusion concerning the trial court's findings that the unions engaged in bad faith or conditional bargaining, and that the unions waived the opportunity to meet and confer on alternatives to or repeal of charter section 809.
II. The Attorney Fees Appeal (F026444)[***]
DISPOSITION
The judgment in F025765 is affirmed. The order in F026444 is affirmed. The City's cross-appeal is dismissed as moot. The City is awarded costs on appeal.
HARRIS, J., CONCURS.
Dissenting Opinion by ARDAIZ, P.J.
I respectfully dissent from the majority view with respect to whether Fresno City Charter section 809 is a matter within the scope of representation. The majority view is extremely well presented and I agree with my colleagues' expression that "The question whether charter section 809 is a matter within the scope of representation is, in our opinion, a close and difficult one." (Maj. opn. at p. 609.) However, I disagree with the following expression in the majority opinion.
*616 "... On the one hand, the eight-city formula only establishes `a policy of parity' between local firefighter and police wages and those in other large California cities. [Citation.] As such, it merely sets the City's initial bargaining position, as the unions recognize. Establishment of an initial bargaining position clearly would seem to be in the nature of a `general managerial policy decision' exempt from the meet and confer requirements of section 3505 pursuant to section 3504, in the same way, for example, the composition of the City's negotiating committee would be exempt from mandatory bargaining. [Citations.] Fresno City Charter section 809, in fact, only establishes wages directly when the collective bargaining process has broken down and impasse on the issue of wages has resulted. Then, and outside of the collective bargaining process, Fresno City Charter section 809 becomes a wage-setting provision; before that time, it merely establishes a mandatory bargaining position for the City.
"It is in this sense that the trial court correctly observed, in support of its finding that repeal of charter section 809 was merely a permissive subject of bargaining: The repeal of Charter section 809 did not place any impediments to future meet and confer under [MMBA] and the only effect the repeal ... had was to require the parties in the future to meet and confer in good faith....'
"Different considerations would be involved if the charter section in question actually set wages, as is the case in some prevailing wage charter provisions. [Citation.] In those cases, the charter provision establishes the wages, and repeal of the charter section would be subject to negotiation [citation]; in the present case, Fresno City Charter section 809 does not purport to set wages. As such, the literal terms of Fresno City Charter section 809 would not bring it within the statutory `scope of representation.'" (Maj. opn. at pp. 610-611, fn. omitted.)
The majority view then acknowledges that although the eight-city minimum in the present case became the actual wage incorporated into the memorandums of understanding (MOU's) "in some instances," nevertheless it is not the practical effect of the provision that controls but rather the conclusion as to whether it is a statement of "fundamental labor policy." Finding that it is an expression of labor policy, the majority then concludes that it is not a mandatory subject of bargaining and therefore not within the scope of representation within the meaning of the Myers-Milias-Brown Act (MMBA, Gov. Code § 3500 et seq.).
With all due respect, I believe that interpretation distorts the concept of scope of representation as it applies to wages and is inconsistent with People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 205 Cal.Rptr. 794, 685 P.2d 1145 (hereinafter Seal Beach). In reference to Government Code section 3504, which defines the scope of representation to include "all matters relating to the employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment," the court in Seal Beach said: "We conclude that the city council was required to meet and confer with the relators before it proposed charter amendments which affect matters within their scope of representation. The MMBA requires such action and the city council cannot avoid the requirement by use of its right to propose charter amendments." (36 Cal.3d at p. 602, 205 Cal.Rptr. 794, 685 P.2d 1145.) The majority view finds a distinguishing characteristic in the words of charter section 809 that "salaries of the members of the police and fire departments of the city shall be fixed annually at an amount not less than the average monthly salaries...." (Italics added.) Using the provisions of a 1990 through 1991 MOU, the majority conclude that because that MOU merely adopts the provisions of Fresno City Charter section 809 as the basis for the salary under the MOU, the calculation of salaries was done through negotiation and not through the charter provision. Here is where I get lost. Just because the MOU refers to the charter provision does not lead me to the conclusion that the provision of charter section 809 is not a salary setting provision. In my view, the only purpose of the salary reference in charter section 809 was to establish an agreed upon or accepted resolution of salaries. The fact that *617 the unions argue that it would be theoretically regarded as a "floor from which bargaining over wages could begin" (fn. 9 referring to union brief) does not, in my view, change its nature as a salary-setting provision.
The majority opinion strives to distinguish a charter provision that requires police and fire department employee wages "`to be fixed annually at an amount not less than....'" from the holding in Seal Beach that a provision setting wages is subject to a mandatory meet-and-confer requirementin other words, the majority contend that a provision that expressly sets a wage (City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 120 Cal.Rptr. 707, 534 P.2d 403 ) is somehow distinguishable from one which sets some type of minimum wage. To the contrary, as noted by Justice Clark in San Francisco Labor Council v. Regents of University of California (1980) 26 Cal.3d 785, 790, 163 Cal.Rptr. 460, 608 P.2d 277, "A statute requiring payment of prevailing wages or more is effectively a salary setting statute. Public agencies' use of taxpayers' funds to pay in excess of a prevailing wage is unwarranted, and while the statute purports to establish a minimum wage, it in effect determines the wage."
The effect of the majority opinion is to conclude that the provision of charter section 809, which concerns a minimum wage determination is an expression of a general managerial decision which would not be within the scope of representation.
"Federal and California decisions both recognize the right of employers to make unconstrained decisions when fundamental management or policy choices are involved.... [M]anagement decisions that `lie at the core of entrepreneurial control' or are `fundamental to the basic direction of a corporation enterprise' should be excluded from the mandatory bargaining requirements of the NLRA. [Citation.] Thus federal cases have held an employer need not bargain about a decision to shut down a plant for economic reasons [citation], nor about a decision to cancel a contract with a customer, even though layoffs result from such cancellation. [Citation.]" (Building Material & Construction Teamsters' Union v. Farrell (1986) 41 Cal.3d 651, 663, 224 Cal.Rptr. 688, 715 P.2d 648.)
In placing the charter provision in question within the context of a fundamental managerial policy, the majority view concludes that the City of Fresno (City) was not required to negotiate because the issue was not one of wages. In effect, it was a subject of permissive negotiation. I infer that the import of the majority view is that the charter provision in question is a policy decision as to where to start discussions as to wages not unlike an opening offer in negotiations.
While I might agree that an employer's opening position in negotiations is not itself a subject of negotiation, that begs the question. The unions do not claim the right to negotiate the City's opening position; rather, they claim the right to meet and confer on the minimum wage the City can pay their members. The subject matter here is wages and wages are matters within the scope of representation. I do not know what could more directly address the issue of wages than a statute that purports to establish a minimum wage. As noted by Justice Clark, "it in effect determines the wage." (San Francisco Labor Council v. Regents of University of California, supra, 26 Cal.3d at p. 790, 163 Cal.Rptr. 460, 608 P.2d 277.) Therefore, I cannot separate such a recognition from the conclusion that the provision in the instant case is also a wage-setting provision.
The practical consequence of the majority view is to say a decision as to a minimum wage is a management decision so only whether to pay more than the minimum wage offered is the subject of mandatory negotiations. The problem with this position is that, in this view, the employer would never have to negotiate on the minimum it chose to pay because that would always be a management decision. That cannot be the law. A minimum wage is still a wage, and MMBA requires covered employers to meet and confer about wages.
I find the determination that this is a wage-setting provision to be amply supported by the reality of its history. At argument, the unions expressed without challenge that the provision of charter section 809 regarding salaries had been the accepted level in *618 virtually every MOU since the inception of charter section 809. The obvious effect of the provisions of charter section 809 was to minimize labor strife on what is commonly one of the most contentious issues in labor negotiation money. Certainly, the City had a financial incentive to eliminate the provision because of its rising labor costs. Given section 809's treatment by the parties historically and its statutory effect of restricting the City's ability to go below the average set in charter section 809, the City would never be able to gain leverage in its negotiations on salaries so long as section 809 was in. place. However, regardless of the wishful thinking of the unions, they would also have a difficult time in gaining leverage in negotiations, even with section 809 in place: history shows the unions have seldom exceeded the section 809 minimums.
I cannot reach the conclusion that the wage provision herein was simply an expression of fundamental labor policy and its repeal a managerial decision that was not within the scope of representation. As noted in Building Material & Construction Teamsters' Union v. Farrell, supra, 41 Cal.3d. at page 660, 224 Cal.Rptr. 688, 715 P.2d 648, "the principal purposes of the MMBA's mandatory bargaining requirements are to promote communication between public employers and employees and to improve personnel management." Building Material also states, "If an action is taken pursuant to a fundamental managerial or policy decision, it is within the scope of representation only if the employer's need for unencumbered decision-making in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question." (Ibid.) Clearly, employers would always prefer unencumbered decision-making in management of operations, but such an exception cannot swallow the rule by allowing the employer to designate with impunity what is an operational management decision. Such an interpretation would subsume wage negotiations and other working conditions.
I conclude this is a wage-setting provision and that the fact that it utilizes the words, "not less than" does not change its nature. I conclude that the provision of charter section 809 regarding wages was the subject of mandatory meet and confer. This takes us to the same result reached in Seal Beach, "the city council was required to meet and confer with the relators before it proposed charter amendments which affect matters within their scope of representation. The MMBA requires such action and the city council cannot avoid the requirement by use of its right to propose charter amendments." (Seal Beach, supra, 36 Cal.3d at p. 602, 205 Cal. Rptr. 794, 685 P.2d 1145.)
This is not to say, and Seal Beach does not require, that a charter provision cannot be adopted or repealed simply because it affects wages. It does recognize that, in reconciling the provisions of the MMBA with the provisions of the California Constitution, article XI, section 3, subdivision (b) regarding the constitutional power of city councils to propose charter amendments, the two must be reconciled in a way that accommodates the goals of each. In effect, the City herein was required to meet and confer with the unions on the subject of repeal of charter section 809. The fact that such negotiations ultimately may have proven fruitless does not change the requirements of the MMBA that such discussions be undertaken.
I make no observation about the relative merits of either side's position in this negotiation except to note that labor negotiations do not turn on logic, they turn on experience, to paraphrase Justice Oliver Wendell Holmes. And experience shows us that discussion is better than strife, and amicable resolution would be better than what has happened in this case; The City chose to create charter section 809 as a means of setting wages and I cannot, in good conscience, transmute it into a management decision that is exempt from negotiation. Further, the will of the community has been amply expressed on this issue, which is a sobering reality of which the parties would be on notice in the future if the unions were granted their right to meet and confer. Posturing by either side should not prevent an amicable solution given that reality. As I do not find support in the record for the conclusion that the unions were afforded the right to meet and confer, that impasse was *619 impliedly reached, or that the unions engaged in bad faith negotiations or waiver, I would reverse. Because I would reverse the judgment in F025765, I would find case no. F026444 to be moot.
NOTES
[*] Judge Quaschnick presided over the trial and rendered the judgment in F025765; Judge Kane made the order denying attorney fees in F026444.
[**] Ardaiz, J., dissented.
[1] In a different context, the Supreme Court has said that "arbitration substitutes for economic warfare" between labor and management. (Butchers' Union Local 229 v. Cudahy Packing Co. (1967) 66 Cal.2d 925, 938, 59 Cal.Rptr. 713, 428 P.2d 849.) In the present context of police and firefighter employees whose right to take job action is severely restricted, litigation has taken the place of "economic warfare" after the failure of negotiation. (See Lab.Code, § 1962 [firefighters]; City of Santa Ana v. Santa Ana Police Benevolent Assn. (1989) 207 Cal.App.3d 1568, 1571-1573, 255 Cal.Rptr. 688 [organized "sick out" enjoined].)
[2] The unions' opening brief in F026444, consolidated into this appeal, states: "The Unions actually [fared] better bargaining for wage increases without [charter section] 809.... Indeed, FPOA negotiated higher member salaries [for 1993 through 1996] than would have been generated by 809. Therefore, reinstatement of 809 would provide no direct financial benefit to the Unions, and the amount of any monetary gain that would result from such a reinstatement is pure speculation." (Cf. fn. 10, post.) The City contends the data do not establish the unions fared better without charter section 809.
[3] "As so often occurs in labor relations, the Unions pursued their appeal as a matter of principle."
[4] At this point the opinion contained the following footnote: "Section 809 provide[d]: `Compensation of officers and employees of the city ... shall be fixed by the Council as it may from time to time determine ... provided that the monthly salaries of the members of the police and fire departments of the city shall be fixed annually at an amount not less than the average monthly salaries, including increased cost of living bonuses, or whatsoever other name known, paid or approved for payment to members of like or comparable grade or rank of the police and fire departments of the cities of Pasadena, Glendale, San Jose, Stockton, Sacramento, Berkeley, Richmond and Alameda as of July 1 of the new budget year...." (Emphasis added.)"
[5] Memorandums of understanding, i.e., the labor contracts (hereafter MOUs).
[6] Thus, as stated by the unions in their opening brief, the earlier appellate opinion "did notand was not asked toreach the issues raised in the [quo warranto action]. These issues of whether the City met its MMBA obligations to bargain to impasse, make a last, best and final offer, and apply impasse resolution procedures before proposing repeal are separate from the question of whether the zipper clauses precluded such a proposal. Simply stated, even if the MOUs did not bar the City from proposing repeal, [the quo warranto action poses the question whether] the Council still had to satisfy its meet and confer obligations ... before doing so."
[7] All further section references are to the Government Code unless otherwise indicated.
[8] The state is not merely a nominal party in a quo warranto action; it actually has ultimate control over the course of the litigation. (People v. City of Huntington Beach (1954) 128 Cal. App.2d 452, 455, 275 P.2d 601.) In this consolidated case, the appeal was taken by the state and the unions. The Attorney General and the unions' attorneys appear on the briefs. While it appears that the Attorney General has acquiesced in the arguments made by the unions as relators, it is also clear that the unions' attorneys have taken the laboring oar throughout the litigation. In the interest of reality, then, we will refer to the appellants in F025765 as "the unions," even though, as a matter of law, the sole appellant in the quo warranto action is the state. (People ex rel. Conway v. San Quentin Prison Officials (1963) 217 Cal.App.2d 182, 183, 31 Cal.Rptr. 649.)
[9] These procedures involve, in summary, mediation if both parties agree and a mandatory fact finding process followed by a report to the parties. If the parties do not reach agreement within five days after delivery of the report, the report becomes public and, inferentially, the city council then may act unilaterally on the disputed subject matter. (Fresno Mun.Code, § 2-1916.)
[10] In their reply brief, the unions state: "809's formula set a floor from which bargaining over wages could begin, and gave the Unions some leverage, assuring a minimum wage level, yet freeing them to negotiate for more. Without 809, the Union[s] bargaining position is far worse and the City has unlimited room to dictate the end result."
[11] In San Luis Obispo County Employees' Assn. v. Freeman (1973) 30 Cal.App.3d 511, 517, 106 Cal.Rptr. 357, the court held enforceable a county's ordinance setting forth general policies concerning how the county should approach setting wages through the meet-and-confer process. The issue there, however, was whether the policies, once in place, were enforceable. There was no issue concerning any duty to meet and confer concerning establishment, modification or repeal of the policies.
[12] At oral argument, counsel for both sides agreed that the eight-city minimum did not always become the actual wage. The City's counsel stated, "I am not willing to say the record shows the 809 wage automatically became the wage in the MOU." Counsel for the unions remarked, "At least 85 percent of them have been 809 and that's it."
[13] While he disagrees with our interpretation of those words, counsel for the unions agreed at oral argument that the words of the charter control over its practical effect in this regard.
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262657/ | 18 Md. App. 419 (1973)
306 A.2d 548
CARL M. FREEMAN ASSOCIATES, INC. AND AMPROP, INC.
v.
JOHN J. MURRAY.
No. 756, September Term, 1972.
Court of Special Appeals of Maryland.
Decided July 13, 1973.
The cause was argued before MORTON, MOYLAN and SCANLAN, JJ.
*420 Robert C. Heeney, with whom were Heeney, McAuliffe & Rowan on the brief, for appellants.
Jerold H. Fishman, with whom were Wolman, Fishman, Gushee & Shepherd on the brief, for appellee.
SCANLAN, J., delivered the opinion of the Court.
Appellants, Carl M. Freeman Associates, Inc.,[1] and Amprop, Inc.,[2] appeal from a judgment of the Prince George's County Circuit Court which awarded $15,000 in compensatory damages and $25,000 in punitive damages to the appellee, John J. Murray, in his suit for malicious prosecution brought against Freeman Associates, Amprop and Donald E. Green, an employee of Freeman Associates. The case was tried before a jury which rendered a verdict in appellee's favor for $15,000 in compensatory damages and $35,000 in punitive damages. Following appellants' motion for a new trial or remittitur, the trial judge (Honorable James H. Taylor) granted a remittitur of $10,000 as to punitive damages only.
This appeal presents two questions for our decision.[3]
*421 These are:
(1) Whether this Court can reverse the award of compensatory damages below on the grounds that the jury's verdict was grossly excessive?
(2) Whether the award of punitive damages against the appellants was unwarranted, in that there was no showing of actual malice on their part or on the part of their agent?
For the reasons stated in the remainder of this opinion, we conclude that the answer to both questions must be in the negative, and we affirm the judgment.
THE FACTS
In July 1971, Amprop owned an apartment complex in Prince George's County, known as Seven Oaks Farms, a complex which Freeman Associates then managed for Amprop. At that time, Freeman Associates had in its employ as a security guard at Seven Oaks Farms, Donald E. Green. At that time also, the appellee was a tenant in the same apartment complex.
In the early evening of July 24, 1971, several persons, all in their early twenties, had gathered outside of an apartment in the complex. Some of them were drinking beer, but there is no indication in the record that anyone in the group was drunk, acting disorderly or using loud or profane language. Mr. Green, the security guard, approached the group and told them to go inside the apartment, a request with which they complied. A little while later, a few members of the group went out on the balcony of one of the apartments. Subsequently, Mr. Green approached these persons and ordered them to go inside. Again, they complied with Green's request. They did ask him who was complaining about their activity and Green replied that no one had complained, but that they were bothering him. There was no further conversation or contact between Mr. Green and the other parties on the evening of July 24, 1971.
The next day, Green obtained the names of the residents of the apartment from the mailbox and applied for arrest *422 warrants for all those persons listed thereon, charging them with being intoxicated in a public place and causing a disturbance. The appellee was one of those listed as living in the apartment. Because of this, he received a notice on August 10, 1971, that a warrant had been issued for his arrest for an offense that he had allegedly committed on the evening of July 24th. This puzzled the appellee because on the evening in question he had been a guest in the home of his uncle in Chicago, Illinois. Indeed, he had been in Chicago from July 21st through August 2nd, 1971, and had not returned to the State of Maryland during that period.
The appellee, nevertheless, obeyed the notice he had received and appeared at the sheriff's office in Prince George's County. There, he was fingerprinted, photographed and charged with being intoxicated in a public place and causing a disturbance. He was detained for 3 1/2 hours before he was permitted to post bond and depart.
Ultimately, after he and his counsel had conferred with an Assistant State's Attorney for Prince George's County, the charges against him were nol-prossed. At trial, the Assistant State's Attorney, who testified as a witness for the appellee, said the determination to nol-pros the charges was based on the fact that no crime had been committed and, indeed, he regarded the incident as "ridiculous" and "foolish." The Assistant State's Attorney reached that conclusion after talking with Green, the security guard of Freeman Associates who swore out the warrant for the appellee's arrest.
At the trial of the case certain significant stipulations were agreed to, including stipulations: that "the plaintiff, John J. Murray, was innocent of the charge of disorderly intoxication;" that "Donald E. Green was the agent of Carl M. Freeman Associates, Inc. on or about July 24, 1971;" that Green "was employed as a security guard on or about July 24, 1971 at an apartment development in which the appellee was a tenant;" that "Donald E. Green was acting within the scope of his employment when he brought charges against the plaintiff, John J. Murray, for disorderly intoxication;" and that making arrests and swearing out warrants or *423 complaints "was within the scope of the employment of Donald E. Green."
At the time of the incident involved in this case, Murray was a petty officer in the United States Navy. He had no prior criminal record, had never been charged with a crime and had not been disciplined during the course of his Navy career. He testified that he became extremely nervous and upset and worried about the effect of an arrest on his job in the Navy and on his security clearance. There was testimony that the appellee had become more nervous and stuttered more since his arrest. In contesting the charges against him, appellee expended $250.00 for legal services and lost four days from his work.
There was testimony that when an arrest is made in Prince George's County, copies of the arrest record, photographs and fingerprints are maintained by the police and copies thereof sent to the F.B.I., even though the charges are dismissed. The Assistant State's Attorney testified that there was nothing that the appellee could do to expunge those records. A clerk in the District Court for Prince George's County testified that the arrest records are open to the public, even though charges are dropped and that employers and representatives of the Federal Bureau of Investigation do come in to look at the court records.
THE AWARD OF COMPENSATORY DAMAGES WILL NOT BE REDUCED
Appellants argue vigorously that, because the plaintiff was able to show out-of-pocket expenses of only $250.00 for attorney's fees and a few days of lost wages, the jury's award of $15,000 in compensatory damages was grossly excessive. They ask that we reduce that award. However, as the appellants themselves seem to concede, such a request is one to which we cannot accede. The Court of Appeals has frequently reiterated its determined disinclination to review the amount of a jury's award of damages in a tort action. The late Judge Finan, after reviewing the cases and citing fourteen prior, representative decisions, stated in *424 Kirkpatrick v. Zimmerman, 257 Md. 215, 218, 262 A.2d 531 (1970) that:
"We know of no case where this Court has ever disturbed the exercise of the lower court's discretion in denying a motion for a new trial because of the inadequacy or excessiveness of damages."
Judge Finan's observation remains true. In D.C. Transit System v. Brooks, 264 Md. 578, 588, 287 A.2d 251 (1972), the Court again adverted to the controlling cases, including Kirkpatrick v. Zimmerman, supra, and, citing Rephann v. Armstrong, 217 Md. 90, 93, 141 A.2d 525 (1958), said:
"The trial court refused a new trial sought on the ground that the verdicts were excessive, and it is not our function or right, even were we disposed to do so, to pass on his action in this respect."
The Court then went on to turn aside D.C. Transit's attack on the size of a verdict rendered in a malicious prosecution case. Id. at 589-590.
In other jurisdictions, including our neighbor, the District of Columbia, there appears to be a judicial policy that large verdicts in actions for malicious prosecution should be viewed with more concern and examined more critically for excessiveness than verdicts in other tort actions. Mills v. Levine, 114 A.2d 546, (D.C. Mun. App. 1955), affirmed in part, 233 F.2d 16 (1956), cert. denied, 352 U.S. 858 (1956). No such policy or rule prevails in Maryland, however. Therefore, even if we were to conclude that an award of $15,000 for compensatory damages in this case was excessive in the light of the evidence presented, we would be barred by a legion of decisions of the Court of Appeals from reversing or reducing the judgment. Kirkpatrick v. Zimmerman at 218 and see the cases cited therein.[4]
*425 MALICE IS INFERRED AND SUPPORTS THE AWARD OF PUNITIVE DAMAGES
Appellants' second contention is that there was insufficient proof of malice on their part to support an award of punitive damages. We disagree.
The appellants have stipulated that the security officer, Mr. Green, was acting within the scope of his employment when he applied for an arrest warrant against the appellee. Despite this concession, appellants contend that an award of punitive damages is not recoverable against an employer unless he authorizes, ratifies or participates in, the acts of his agent which form the basis of a suit for malicious prosecution. For this contention, they cite Safeway Stores v. Barrack, 210 Md. 168, 122 A.2d 457 (1956). As we read Safeway Stores, the decision rebuffs more than it supports appellants' contention. In that case, the Court of Appeals affirmed a judgment in an action for malicious prosecution and false imprisonment by an appellee who had been charged by a Safeway employee with stealing products from one of the chain's stores, of which charge he was found not guilty in a trial before a magistrate. During the course of its opinion, the Court of Appeals observed:
"The appellant strongly attacks the award of punitive damages both as against Smith and his employer. Although the allowance of punitive damages is somewhat anomalous and has been rejected in a few states, it has been generally recognized. Prosser, Torts (2d ed.), p. 9. It has long been recognized in Maryland. In Bernheimer v. Becker, 102 Md. 250, a case of assault and false imprisonment, it was said that to justify an award of punitive damages there must be circumstances tending to show that the wrong was inflicted maliciously or wantonly or with circumstances of *426 contumely and indignity, citing Sloan v. Edwards, 61 Md. 89, 100. In Heinze v. Murphy, supra, a case of assault and false imprisonment against a policeman, it was said (p. 434) that `where damages beyond compensation, to punish the party guilty of a wrongful act, are asked, the evidence must show wanton or malicious motive, and it must be actual and not constructive or implied.' On the other hand, in McNamara v. Pabst, 137 Md. 468, 473, a case of malicious prosecution, it was held that a prayer which did not require a finding of malice as a prerequisite to punitive damages was not defective, since such a finding would be implicit in a verdict for the plaintiff, which would necessarily include a finding of malice.
"The reasoning that would support an award of punitive damages against Smith would not necessarily apply to his employer. Some courts have held that a principal is not liable for punitive damages unless the principal authorizes, ratifies or participates in the act complained of. Lake Shore &c. Railway Co. v. Prentice, 147 U.S. 101; Prosser, Torts (2d ed.), p. 21; Restatement, Torts, § 909. Cf. Wardman-Justice Motors v. Petrie, 39 F.2d 512 (D.C.), and Safeway Stores v. Gibson, 118 A.2d 386, 388 (Mun. C.A., D.C.), in which cases the courts found evidence of express authorization or ratification from the terms of employment and the retention of the agent after the incident was reported. But the Maryland cases take a less strict view. In Boyer & Co. v. Coxen, 92 Md. 366, 371, punitive damages were allowed against an employer in an assault case, where there was no evidence of authorization, participation or ratification. There was, of course, evidence that the servant was acting in furtherance of the master's business, although his action in beating the plaintiff with a wrench was `wanton, high-handed and outrageous.' See also Dennis v. Baltimore Transit Co., 189 Md. 610, 616, and Balt. & *427 Yorktown Turn. v. Boone, 45 Md. 344." (Emphasis added.) Id. at 175-177.
The conclusion we draw from the careful summary of the law which the Court of Appeals set out in Safeway Stores, as quoted above, is that in a suit for malicious prosecution "malice may be inferred from a lack of probable cause" (id. at 175) and, accordingly, punitive damages may be awarded against the employer without any affirmative proof that he authorized, participated in or ratified the tortious act of his employee in instituting the prosecution. An award of punitive damages against an employer for malicious prosecution can be supported by the mere showing that his employee was acting in the scope of his employment and that the latter acted without probable cause. Both of these elements exist in this case.
Green had the prior consent or approval by the appellants to make arrests and to swear out warrants as part of his duties as a security guard. Acting without probable cause and, indeed, quite recklessly, Green applied for arrest warrants for persons whose names were listed on an apartment house mailbox. The State's Attorney testified as to the lack of probable cause for the charges brought by Green and the case against Murray was nolle prossed on this ground. From this demonstrable lack of probable cause, malice on Green's part may be inferred and that malice was properly attributable to the appellants, his employers. McNamara v. Pabst, 137 Md. 468, 473-474, 112 A. 812 (1921). There was thus no error in the jury's award of punitive damages, nor on the part of the trial court in refusing appellants' request to take the question of such damages from the jury.
Embraced within appellants' claim that an award of punitive damages against them was unwarranted, is a peripheral complaint that "unusually large punitive damages" were granted in this case. Exemplary damages are awarded to punish the offending party and to serve as a deterrent or example to him and others. Superior Construction Company v. Elmo, 204 Md. 1, 104 A.2d 581 (1954). Damages which may constitute proper punishment *428 or provide a sufficient deterrent in the case of a defendant of modest means may not serve those purposes so far as a more affluent defendant is concerned. Conversely, "a verdict that would scarcely be regarded by a wealthy man, might be ruinous to a poor man." Bell v. Morrison, 27 Miss. 68, 86 (1854). Thus, in the assessment of punitive damages it is proper to consider the pecuniary circumstances of the defendant. Heinze v. Murphy, 180 Md. 423, 431, 24 A.2d 917 (1942); Sloan v. Edwards, 61 Md. 89, 100 (1883); and see Evidence of Financial Worth and Apportionment of Exemplary Damages (Note), 26 Md. L. Rev. 259, 268 (1966). An S.E.C. prospectus of Carl M. Freeman Associates, Inc. was introduced in evidence. It disclosed that Freeman Associates had assets of twenty-four million dollars, including two million dollars in cash on hand. Accordingly, even if the question were one which was within our province to determine, we would not be disposed to hold that the punitive damages granted in this case were so disproportionately large as to establish that their award was the result of passion, prejudice or bias on the part of the jury.
Judgment affirmed; costs to be paid by appellants.
NOTES
[1] Hereinafter sometimes referred to as "Freeman Associates."
[2] Hereinafter sometimes referred to as "Amprop."
[3] Our examination of the record reveals that the declaration sought $10,000 compensatory damages, but that the jury awarded $15,000 in compensatory damages. Rule 1073 a provides that: "A judgment will not be reversed because the verdict was rendered for a larger sum than the amount claimed in the declaration if the plaintiff in the action in the lower court amends the record by entering in this Court a release of the excess over the sum claimed in the declaration." It has long been the law of this State that if a plaintiff recovers a verdict in excess of the damages laid in the declaration a remittitur by the trial court is proper. Harris v. Jaffray, 3 Har. & J. 543 (1815); Attrill v. Patterson, 58 Md. 226, 260-261 (1882); Finch v. Mishler, 100 Md. 458, 462, 59 A. 1009 (1905). This appears to be the general rule. See, e.g., Elliott v. Sherman, 147 Me. 317, 87 A.2d 504 (1952), and Barbato v. Vollmer, 273 App. Div. 169, 76 N.Y.S.2d 528 (1948). The appellants, however, did not raise the issue of the excess of the judgment over the ad damnum in the court below. Nor did they press the point in their brief and oral argument in this Court. Accordingly, we are precluded from considering the question by virtue of both Rule 1085 and Rule 1031 c 2. We express no opinion as to whether the appellants still could seek and obtain relief under Rule 625 a, under which the trial court retains revisory power and control over the judgment in case of "mistake or irregularity." Cf. Mutual Benefit Society of Baltimore, Inc. v. Haywood, 257 Md. 538, 541, 263 A.2d 868 (1970).
[4] The existence of an arrest record could have a damaging effect on a person's reputation. Furthermore, the appellee in this case experienced mental pain and suffering on becoming aware of the false charges which Green had preferred against him. Also, the arrest apparently caused an aggravation of a pre-existing condition of nervousness and stuttering. Under those circumstances, reasonable men could differ as to whether the jury's award of compensatory damages was excessive. As indicated in the main text of this opinion, supra, however, we cannot consider that question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262548/ | 240 P.3d 200 (2010)
2010 WY 135
Robert L. FOSTER, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. S-09-0232.
Supreme Court of Wyoming.
October 7, 2010.
*201 Representing Appellant: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.
Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.
Before KITE, C.J., and GOLDEN, HILL, VOIGT[*], and BURKE, JJ.
GOLDEN, Justice.
[¶ 1] Robert L. Foster challenges the order of the district court revoking his probation and reinstating his original prison sentence. We affirm.
ISSUES
[¶ 2] Foster presents the following issues:
I. Were all of the violations of probation proven by a preponderance of the evidence?
II. Did the trial court consider unproven violations in the dispositional phase of the revocation hearing?
FACTS
[¶ 3] In March 2007, Foster was charged with two counts of felony property destruction under Wyo. Stat. Ann. § 6-3-201(LexisNexis 2009)[1] for his part in a vandalism spree. Pursuant to a plea agreement, Foster pled no contest to one count of property destruction on October 22, 2007, in exchange for dismissal of the other charge. In accordance with the terms of that agreement, the district court sentenced Foster on January 3, 2008, to a suspended term of imprisonment of four to seven years, placed him on four years of supervised probation under specified terms and conditions, and ordered him to pay restitution in the amount of $8,570.47.[2]
[¶ 4] At the sentencing hearing, the district court made clear that restitution was the integral component of Foster's probation. Foster indicated that he could pay restitution at the rate of $1,000.00 per month, starting on the 15th of January. Despite that representation, Foster never paid anything toward his restitution obligation in January or February.
[¶ 5] Foster eventually entered into a restitution payment plan, which the district court approved on March 4, 2008, that stated:
I, Robert L. Foster, agree to pay within the term of probation, minimum monthly payments of $200.00 per month beginning March 2008, until total due is paid in full. I further agree that if I am struggling on a particular month, I will pay no less than $25.00 per month. [Emphasis in original.]
Thereafter, Foster made a restitution payment of $100.00 on March 10 (an amount authorized by his probation agent) but did not make another payment until June 2, at which time he paid only $25.00.[3] That minimal payment was followed by a payment of $100.00 on July 2.
*202 [¶ 6] On July 18, 2008, the State filed a petition to revoke Foster's probation, alleging that Foster had failed to make regular restitution payments as required. The petition also alleged the following probation violations: Foster failed to attend Pretreatment Group at Southwest Counseling Services; he failed to obtain steady employment in a timely manner; he violated the law by committing the offense of "hit and run;" he failed to be honest and compliant with law enforcement; he refused to cooperate with his probation agent and therapist in order to attend recommended counseling at Southwest Counseling Services; and he refused to apply for the Intensive Supervision Program (ISP) as directed by his probation agent. The State subsequently amended the petition to include the allegation that Foster failed to inform his probation agent about a vehicle he possessed and used. Foster denied the allegations.
[¶ 7] After several continuances, the district court conducted a revocation hearing on October 23, 2008. At the conclusion of that hearing, the district court eliminated the failure to attend counseling at Southwest Counseling Services and the failure to notify his probation agent about the vehicle as grounds for revocation of probation. The district court, however, found sufficient evidence proving the other allegations and concluded that Foster had violated the terms of his probation. The court revoked Foster's probation and ordered him to serve the underlying four-to-seven-year prison sentence. This appeal followed.
DISCUSSION
[¶ 8] Revocation proceedings are largely governed by W.R.Cr.P. 39 and consist of a two-part process. The first part, the adjudicatory phase, requires the district court to determine by a preponderance of the evidence whether or not a condition of probation has been violated. W.R.Cr.P. 39(a)(5). This determination must be based on verified facts and must be made in accordance with constitutional due process requirements and the Wyoming Rules of Evidence. Mapp v. State, 929 P.2d 1222, 1226 (Wyo.1996). The second part, the dispositional phase, is triggered only upon a finding that a condition of probation was violated. Id. During this phase, the district court must determine the appropriate consequences of the probation violation. In making this determination, the district court must consider not only the violation, but also the reasons the condition was originally imposed and the circumstances surrounding the violation. Id.; Gailey v. State, 882 P.2d 888, 891-92 (Wyo.1994); Minchew v. State, 685 P.2d 30, 32 (Wyo. 1984).
[¶ 9] We review probation revocation proceedings under our abuse of discretion standard:
A district court's decision to revoke probation and impose a sentence is discretionary and will not be disturbed unless the record demonstrates a clear abuse of discretion. Mapp v. State, 929 P.2d 1222, 1225 (Wyo. 1996). We review the district court's decision to determine whether the court could reasonably conclude as it did. Id. "Upon review, all that is necessary to uphold a district court's decision to revoke probation is evidence that it made a conscientious judgment, after hearing the facts, that a condition of probation had been violated." Sweets v. State, 2003 WY 64, ¶ 9, 69 P.3d 404, 406 (Wyo.2003).
Forbes v. State, 2009 WY 146, ¶ 6, 220 P.3d 510, 512-13 (Wyo.2009).
[¶ 10] During the adjudicatory phase of the revocation proceeding in this case, the district court found Foster had committed six different probation violations. Foster challenges each of these findings on a variety of grounds, including insufficient proof and alleged due process violations, and asserts the district court erred in reaching these conclusions. He further claims that error was exacerbated when the district court relied on these violations as a basis for revoking his probation and reinstating the original prison sentence. In essence, Foster contends that if one of the violations was unsubstantiated, then the district court's consideration of that violation tainted its dispositional decision, necessitating a new dispositional hearing.
[¶ 11] This is not the law. A single proven violation is all that is necessary to revoke probation. See, e.g., Swackhammer *203 v. State, 808 P.2d 219, 225 (Wyo.1991). Thus, no matter how many violations are allegedly proven, a district court can either consider each violation individually or consider them as a whole. Should a district court single out one violation, what is then required of the district court is that, in deciding whether to revoke probation based on the one violation, it must conscientiously consider the violation, the reasons for the defendant's failure to comply with the terms and conditions and the reason those terms and conditions were imposed.
[¶ 12] Applying these principles to the instant case, it is clear the district court complied with its duties. Even though Foster disputes the findings of other violations, it is indisputable that Foster violated the terms of his probation by failing to pay restitution for the month of May 2008.[4] In the dispositional phase, the district court unambiguously stated that the reason it was revoking probation and reinstating the original sentence was because of his failure to pay restitution. The district court reasoned:
You have not taken responsibility for your actions, and I think it's a little too late to say, well, give me another chance, and I'll do what I said I would do a year ago....
As I told you back in October a year ago, the only reason I was accepting that plea agreement was for you to make restitution to those victims because I felt at that time that you deserved to go to prison... based on your record and your actions with 53 victims.
The district court did not mention any of the other alleged violations.
[¶ 13] Under the specific facts and circumstances of this case, we are comfortable determining that the existence of the other alleged violations did not taint the district court's dispositional decision. We find no abuse of discretion in the decision of the district court to revoke Foster's probation and impose the prison sentence on the sole ground of his failure to pay restitution. Affirmed.
NOTES
[*] Chief Justice at time of expedited conference
[1] § 6-3-201 provides in pertinent part:
(a) A person is guilty of property destruction and defacement if he knowingly defaces, injures or destroys property of another without the owner's consent.
(b) Property destruction and defacement is: * * * *
(iii) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the cost of restoring injured property or the value of the property if destroyed is one thousand dollars ($1,000.00) or more.
(c) If a series of injuries results from a single continuing course of conduct, a single violation of this section may be charged and penalties imposed based upon the aggregate cost or value of the property injured or destroyed.
[2] As part of the plea agreement, Foster had agreed to pay the amount of restitution ordered, which included both charged and uncharged acts of property destruction.
[3] The April payment was expressly waived by his probation agent so he could pay for a counseling-related evaluation and polygraph.
[4] Foster did not present any evidence at the hearing establishing an inability to pay restitution. See Ramsdell v. State, 2006 WY 159, ¶ 21, 149 P.3d 459, 464 (Wyo.2006) (once the State demonstrates a failure to pay restitution, the burden shifts to the probationer to establish an inability to pay). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262550/ | 900 F.Supp. 449 (1995)
UNITED STATES of America, Plaintiff,
v.
Michael ABBELL and Hugo Perera, Defendants.
No. 93-470-CR.
United States District Court, S.D. Florida.
September 20, 1995.
*450 Bill Pearson, Edward Ryan, Lisa Hirsch, Assistant United States Attorneys, Miami, FL, for the U.S.
Roy Black, Roy Black, P.A., Miami, FL, for Abbell.
Howard Srebnick, Roy Black, P.A., Miami, FL, for Perera.
ORDER DENYING MOTION TO DISQUALIFY
HOEVELER, Senior District Judge.
THIS CAUSE comes before the Court upon the United States' Motion to Disqualify. *451 The U.S. moves to disqualify Roy Black, who has filed a temporary appearance on behalf of Michael Abbell, and Howard Srebnick, who represents Hugo Perera and is an associate in the law firm of Roy Black, P.A.[1] On August 9, 1995, the Court issued a provisional order denying the Government's motion. The purpose of this Order is to elaborate on the Court's findings and analyze the issues raised by this motion.
The Government seeks to disqualify Black on two separate grounds first, his representation of Lawrence Kerr before the grand jury investigating this case, and second, his consultation with Francisco Laguna on September 12, 1994. As these circumstances present distinct factual and legal questions, the Court will analyze them separately.
Conflict of interest presented by Roy Black's representation of Lawrence Kerr
Black represented Lawrence Kerr before the grand jury and met with members of the prosecution team on Kerr's behalf. Kerr is a former associate in the law firm of Moran & Gold, P.A. William Moran, a partner in the same law firm, is a defendant in this case. Kerr currently has use immunity, and it is anticipated that Kerr will testify for the prosecution at trial. The Government, thus, seeks to disqualify Black on the basis of his representation of a client connected to this case. Kerr has not joined the Government's motion, but instead has waived his attorney-client privilege with Black and stated that he has no objections to Black's cross-examining him at trial. Similarly, Abbell has waived any conflict of interest posed by Black's representation of Kerr and himself.
Under the Sixth Amendment of the Constitution, a criminal defendant has the right to be represented by counsel of his choice. In our adversarial system, this right is one of the most important that a defendant possesses. Nonetheless, this right is not absolute; while it guarantees that a defendant will be represented by competent counsel, it does not ensure that representation will be by counsel of choice. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988). There are circumstances in which it may be necessary for a court to disqualify an attorney selected by a defendant. "In determining whether or not to disqualify defense counsel, the court must balance two Sixth Amendment rights: (1) the right to be represented by counsel of choice and (2) the right to a defense conducted by an attorney who is free of conflicts of interest ... The need for fair, efficient, and orderly administration of justice overcomes the right to counsel of choice where an attorney has an actual conflict of interest, such as when he has previously represented a person who will be called as a witness against a current client at a criminal trial." United States v. Ross, 33 F.3d 1507, 1523 (11th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 2558, 132 L.Ed.2d 812 (1995).
In the instant case, it is possible that a conflict of interest could arise in the future because "the subject matter of the first representation is substantially related to that of the second." Id. at 1523. Black currently represents two attorneys who are alleged to have represented members of the Cali Cartel. Nonetheless, "where an actual conflict of interest exists subjecting the attorney to disqualification, the client may waive this conflict of interest and elect to have the attorney continue representation." Both Kerr and Abbell have taken such a step. The Court is confident that their waivers are knowing, intelligent and voluntary.
Of course, a court is not required to accept a waiver of a conflict of interest. Id. at 1524. However, in this case, the Government has not presented compelling reasons to reject these waivers. The Government offered excerpts of Kerr's testimony before the grand jury. Rather than demonstrating that Kerr would implicate Abbell directly in the charges alleged in the indictment, the testimony tended to show that the relationship between Kerr and Abbell is attenuated. At this stage of the proceedings, it does not appear that Black's representation of Kerr would render "the Court's verdict suspect *452 and the [client's] assistance of counsel unethical and ineffective." Id. Accordingly, Black's representation of Kerr does not provide grounds for disqualifying him from representing Abbell.
Conflict of interest presented by Roy Black's meeting with Francisco Laguna
At the beginning of September, 1994, Francisco Laguna sought to retain counsel because he was a possible target of a grand jury investigation. Agents of the federal government had recently executed a search warrant of the Miami office of his law firm Ristau & Abbell. On September 12, 1994, Laguna contacted Black at his office and requested a meeting. That evening, Black met Laguna in a Miami restaurant. The meeting lasted for approximately one hour.[2] The Government argues that Black should be disqualified on the basis of this meeting because Black consulted with Laguna with a view to representation and received confidential information from Laguna during this meeting. Laguna has joined the Government's motion and refuses to waive the attorney-client privilege which, he alleges, attached at this meeting.
Laguna has subsequently plead guilty to charges stemming from the filing of false affidavits and has agreed to cooperate with the Government. It is anticipated that Laguna will testify at trial against Michael Abbell, Laguna's former employer and Black's present client. Thus, the possibility exists that Black will cross-examine Laguna, if he remains counsel for Abbell.
It is well-settled that the attorney-client privilege covers conversations between attorneys and those seeking legal representation. The privilege precludes an attorney from disclosing information obtained during the course of such consultations. In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir.1975). Both attorney and client benefit from the policy grounds underlying the privilege promoting candor during preliminary discussions. It is on the basis of this privilege that the Government seeks to disqualify Black.
There are no reported cases in which an attorney has been disqualified from a case as a result of preliminary discussions between a lawyer and a prospective client.[3]See United States v. Ross, 33 F.3d 1507 (11th Cir.1994) (the disqualified law firm represented a government witness who plead guilty to drug-related charges and who would testify against the firm's present client); United States v. O'Malley, 786 F.2d 786 (7th Cir. 1986) (disqualifying an attorney who represented a government witness in two separate criminal matters and obtained confidential information relevant to his cross-examination of that witness). Nonetheless, it is conceivable that a single consultation could be grounds for disqualification, depending upon the nature of the relationship between the parties and the extent of disclosure from client to attorney. In resolving this motion, the relevant inquiry is, therefore, whether an attorney-client relationship developed during the meeting, and whether Laguna revealed sufficient confidential information to warrant disqualification of Black.
In determining whether the attorney-client privilege has attached, the Court must examine the circumstances from the perspective of the client. United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir.), cert. denied, 502 U.S. 1005, 112 S.Ct. 640, 116 L.Ed.2d 658 (1991). Given the nature of this meeting, it is reasonable for Laguna to assert that the conversation was covered by the attorney-client privilege. Black and Laguna were neither professional nor personal acquaintances. The purpose of the meeting was to discuss Laguna's legal complication.
*453 Nonetheless, disqualification of Black is not required because it is unclear what confidential information Laguna communicated to Black. Laguna's affidavit alleges in extremely general terms what he revealed to Black.[4] Black concedes that Laguna disclosed certain confidential information, but like Laguna, provides only sketchy details of the contours of the conversation.
The Court is persuaded for several reasons that the confidential information which Laguna revealed was limited in nature and would not be beneficial to Black in his defense of Abbell. First, the conversation between Black and Laguna was extremely brief, and it is, therefore, unlikely that a meaningful exchange of information occurred. A good part of the meeting was devoted to the question of retention of counsel. Black maintains that Laguna asserted his innocence at the meeting, and it is, therefore, doubtful that the parties delved deeply into the criminal acts which Laguna will testify to at trial. Second, Laguna's affidavit does not set forth sufficient facts to indicate what he disclosed to Black. The Court is left to speculate what was said at this meeting. Third, the Court is persuaded by Black's assertion that he has only a general, vague recollection of the details of the conversation, which occurred over a year ago. He did not take notes of the conversation, nor did he open a file in his office after the meeting. Finally, much of what Laguna revealed to Black is either in the public domain or in the possession of the Government. Laguna has not alleged otherwise. For example, there is no showing that he revealed information to Black which he has not also told the Government or which is not known to the Government. For all of these reasons, the Court believes that if Black cross-examines Laguna at trial, he will not have an unfair advantage, nor will Laguna be prejudiced, as a result of their prior conversation.
In making the factual determinations required by this motion to disqualify, the Court must also take into consideration the credibility of the parties. Black has a distinguished reputation in the Miami legal community. He has appeared before this Court in several trials, and has consistently conducted himself in an ethical manner. The Court is less familiar with the background of Laguna. It is aware that Laguna has plead guilty to charges stemming from the filing of false affidavits. These facts are considerations in evaluating the testimony of these witnesses.
In conclusion, the Government has not made a sufficient showing to overcome Abbell's Sixth Amendment right to select counsel of choice. The Government's Motion to disqualify Black is hereby DENIED.
Conflict of interest presented by Howard Srebnick's representation of Hugo Perera
The Court's decision not to disqualify Black renders moot the Government's motion to disqualify Srebnick on the basis of his being a member of the law firm Roy Black, P.A.
Conflict of interest presented by joint representation of two defendants in the same cause by the law firm of Roy Black, P.A.
In its order of August 9, 1995, the Court raised sua sponte the question of whether it is proper for Black and Srebnick, both members of the law firm of Roy Black, P.A., to represent Abbell and Perera in the same case. The parties have submitted legal memoranda on this issue, and on September, 18, 1995, the Court held a Garcia hearing in order to explore further this potential conflict of interest. At this hearing, the Court stated that as a general rule, it did not believe that joint representation was advisable and described some of the perils associated with it. The Court then followed the procedures set forth in United States v. Garcia, 517 F.2d 272, 278 (5th Cir.1975), and ensured that both Defendants were aware of the specific facts and consequences of joint representation. Both Abbell and Perera waived their right to conflict-free representation, and the Court finds that Defendants made these waivers knowingly, intelligently and voluntarily. Id. at 278. As the Government has no further objections to joint representation *454 by Black and Srebnick, the Court is satisfied that its ethical concerns have been addressed.
The Government's Motion to disqualify Roy Black and Howard Srebnick is hereby DENIED. Having determined that these attorneys may continue to represent their respective clients, the Court expects that if a conflict of interest arises in the future, Black and Srebnick will bring it to the immediate attention of this Court.
DONE AND ORDERED.
NOTES
[1] The Government's motion also seeks to disqualify Leonard Rosenberg, who represented Alain Milanes at the time the motion was filed. He has subsequently withdrawn from the case, and this aspect of the motion is, therefore, moot.
[2] Black subsequently met with Laguna on one other occasion in order to assist him in retaining alternate counsel. This second meeting does not have any bearing upon the question before this Court.
[3] The Government argues that United States v. Moscony presents such a factual situation. 927 F.2d 742 (3rd Cir.), cert. denied, 501 U.S. 1211, 111 S.Ct. 2812, 115 L.Ed.2d 984 (1991). While it is true that defense counsel met individually with a co-defendant on only one occasion, the Court undoubtedly was persuaded to disqualify the attorney because he also represented two other defendants in the case and had met with one of them on more than one occasion.
[4] Counsel for Laguna submitted a motion on behalf of Laguna, in which he provides greater detail of what was said at the meeting on September 12, 1994. As this information was not included in either of Laguna's sworn affidavits, it is discounted by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262558/ | 124 N.J. Super. 251 (1973)
306 A.2d 79
JACOB VAN EEUWEN, ET AL., PLAINTIFFS-RESPONDENTS,
v.
HEIDELBERG EASTERN, INC., ET AL., DEFENDANT-RESPONDENT, AND HEIDELBERGER DRUCKMASCHINEN AKTIENGESELLSCHAFT, DEFENDANT-APPELLANT. JOSEPH E. CERTISIMO, ET AL., PLAINTIFFS-RESPONDENTS,
v.
HEIDELBERG CO., ET AL., DEFENDANTS-THIRD PARTY PLAINTIFFS,
v.
HEIDELBERGER DRUCKMASCHINEN AKTIENGESELLSCHAFT, THIRD PARTY DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued May 22, 1973.
Decided June 11, 1973.
*252 Before Judges KOLOVSKY, MATTHEWS and CRAHAY.
Mr. Peter E. Henry argued the cause for HDAG (Messrs. Crummy, O'Neill, Del Deo & Dolan, attorneys).
Mr. Francis P. Witham argued the cause for Heidelberg Eastern, Inc. in the Van Eeuwen action (Messrs. Markey, Witham and Amabile, attorneys; Mr. John P. Markey, on the brief).
*253 Mr. John J. O'Donnell argued the cause for Heidelberg Eastern, Inc. in the Certisimo action (Messrs. O'Donnell, Leary & D'Ambrosio, attorneys).
Messrs. Vaccaro & Osborne filed a brief on behalf of plaintiff Van Eeuwen (Mr. Patrick P. Randazzo, of counsel).
The opinion of the court was delivered by KOLOVSKY, P.J.A.D.
In each of the above matters plaintiff sued to recover damages for injuries received while operating, on behalf of his employer, a printing press manufactured by defendant Heidelberger Druckmaschinen Aktiengesellschaft (HDAG), a German corporation. Each plaintiff alleged that his injuries were caused by defects in the printing presses which had been purchased by the respective employers of plaintiffs from Heidelberg Eastern, Inc., a Delaware corporation.
HDAG appeals, on leave granted, from orders denying its motion to quash the service of process made upon it in each case pursuant to the "long arm" service provision set forth in so much of R. 4:4-4 (c)(1) as reads as follows:
If it appears by affidavit of plaintiff's attorney or of any person having knowledge of the facts that after diligent inquiry and effort personal service cannot be made upon any of the foregoing and if the corporation is a foreign corporation, then, consistent with due process of law, service may be made by mailing, by registered or certified mail, return receipt requested, a copy of the summons and complaint to a registered agent for service, or to its principal place of business, or to its registered office.
The sole issue involved in the two consolidated appeals is whether the trial courts erred in rejecting HDAG's contention that "it is beyond the reach of jurisdictional due process with respect to an action in the courts of the State of New Jersey."
The only proofs before the trial courts on HDAG's motions appeared in the affidavit of Dr. Keese, its secretary. (For some unexplained reason, HDAG did not serve a copy of *254 its motion in the Van Eeuwen action on its codefendant, Heidelberg Eastern, Inc. The codefendant did not appear. Although HDAG's notice of motion in Certisimo was served on Heidelberg Eastern, Inc., the latter did not file an answering affidavit in the trial court. However, when the matters came before this court on HDAG's applications for leave to appeal and for consolidation of the appeals, a consent order was entered granting, among other things, permission to Heidelberg Eastern, Inc. to file an affidavit with respect to the issue of jurisdiction, and to HDAG to file an answering affidavit. Those affidavits have been filed and, pursuant to the stipulation of the parties, will be considered by us.)
Dr. Keese's original affidavit set forth that HDAG is a German corporation which manufactures and sells its printing presses in Germany to companies doing business in a number of countries, including the United States. The affidavit continued:
Title to said printing presses is transferred to the other companies and payment is made to [HDAG] outside the United States of America. All manufacturing and selling activities of [HDAG] are carried on outside of the United States.
Title to the printing presses and parts which are to be sold in the United States passes in Germany to Heidelberg Eastern, Inc., a New York corporation which is an importer of Heidelberg Printing Presses and parts in the United States. Heidelberg Eastern, Inc. transacts all business on its own behalf and is not an agent of [HDAG]. [HDAG] does not own any of the shares of stock of Heidelberg Eastern, Inc.
Further, according to Dr. Keese, HDAG has no personnel in the United States; it "does no business in New Jersey"; it has no office, place of business, property, bank account or telephone listing there; it does not ship its products into New Jersey; it does not advertise or solicit business or pay taxes in that State or anywhere in the United States. Finally, the affidavit stated:
*255 Although [HDAG] products are sold to purchasers in the State of New Jersey, such sales are made by distributors such as Heidelberg Eastern, Inc. on their own behalf and for their own benefit and not on behalf of [HDAG]. [HDAG] does not sell Heidelberg Automatic Printing Presses to customers in the State of New Jersey. [HDAG] owns no financial interest in any New Jersey distributor of Heidelberg Printing Presses.
[HDAG] does not supervise, control or otherwise oversee the business operations of distributors of Heidelberg Printing Presses in the United States.
Both trial courts concluded that despite the facts set forth in Dr. Keese's affidavit, still the New Jersey courts could and should assert "long arm jurisdiction" over HDAG. In Van Eeuwen Judge Breslin held that where it is alleged that an article has been defectively manufactured or constructed, the manufacturer is subject to jurisdiction under our "long arm statute," irrespective of where in the world the manufacturer is located, if it put the
article in international commerce with the idea and with the purpose of selling that article throughout * * * the world including * * * the United States.
In Certisimo, which is reported at 122 N.J. Super. 1, Judge Byrne, after reviewing the authorities, gave an affirmative answer to what he said was "the narrow question to be determined," viz:
Does the sale and delivery of a product in a foreign nation by a foreign manufacturer to an American distributor with the obvious expectation that it will be sold in some state of the United States subject the foreign manufacturer to the personal jurisdiction of New Jersey's courts when the product causes injury to a New Jersey resident in New Jersey? More simply, is a finding of jurisdiction in such a situation "consistent with due process of law"? (122 N.J. Super. at 5)
Both trial judges recognized that they might be breaking new ground in their rulings as indeed they were. However, in view of the additional proofs submitted to us, we find it unnecessary to venture into an uncharted area to *256 resolve whether the "stream of commerce" rule adopted by the trial courts conforms to the requirements of due process, since we need go no further than the cases which have already been decided many of which are cited in Judge Byrne's opinion to determine that the additional proofs show that it was proper to deny HDAG's motion to quash service of process.
We conclude from our review of the additional proofs that the contacts between HDAG and this State arising out of the relationship between HDAG and Heidelberg Eastern, Inc., which sold and delivered the printing presses in this State, were such that "the maintenance of the suit[s] [in New Jersey] does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. State of Washington, etc., 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).
This is not a case in which the machine was introduced in New Jersey by a distributor or wholesaler who had made one or more casual purchases of the machine in a foreign country for resale in the United States. If it were, then indeed we would be called upon to decide whether it offends "traditional notions of fair play and substantial justice" to subject such a foreign manufacturer to the jurisdiction of this State merely because the casual purchaser from the manufacturer sells and delivers the machine in this State.
Here, however, Heidelberg Eastern, Inc. was not a casual purchaser from the manufacturer HDAG. Its relationship with HDAG was much more than that. It was one created by HDAG to actively promote and insure the sale of its presses in the United States.
To that end HDAG granted exclusive distributorship rights in designated portions of the United States to two corporations, Heidelberg Eastern, Inc. and Heidelberg Pacific, Inc. Heidelberg Eastern's exclusive territory embraced 36 states, one-half of Texas and the District of Columbia. During the years 1966 and 1970 approximately 90%, and during the year 1971 approximately 80%, of *257 Heidelberg Eastern's business consisted of selling and servicing HDAG's printing presses. Advertising and promotional publications prepared by HDAG directed to the ultimate users are supplied by it to Heidelberg Eastern so that it may distribute them to prospective customers and users of the presses. Heidelberg Eastern's sales of such presses and parts in New Jersey during the four years 1968 through 1971 totalled $3,300,000 and the price paid by Heidelberg Eastern to HDAG for those items in that period totalled approximately $1,500,000.
On that background we find of little significance HDAG's reference in its answering affidavit to the small percentage of its world-wide sales reflected in the sales made by Heidelberg Eastern, Inc. to New Jersey customers, or in its affidavit statement that
HEI [Heidelberg Eastern, Inc.] is a totally independent company from HDAG. It is a customer of HDAG. HDAG, however, has no influence whatsoever over the business affairs of HEI. The organization, sales effort, and after-sales service of HEI are matters wholly within HEI's knowledge and discretion. HDAG deals with HEI merely as one of its customers and makes sales of its presses and parts to HEI in Germany. At the time of such sale, however, HDAG has no knowledge concerning the destination of a given machine beyond the Port of New York. HDAG ships its presses to HEI in New York without any knowledge of whether HEI has some other customer for resale of the press or, if so, who that customer may be or where he is located.
That HDAG has elected to market its products in the United States through the grant of exclusive distributorships in specified areas to independent contractors rather than through its own sales organization is of little moment in considering whether it is fair and just that HDAG be subject to the jurisdiction of the court of a state in which the exclusive distributor has sold and delivered one of HDAG's presses. Pragmatically, the exclusive distributor, albeit that it is an independent contractor, is an "integral spoke in a wheel in which [HDAG] is the hub," Hoagland v. Springer, 75 N.J. Super. 560, 564 (App. Div. 1962), aff'd o.b. 39 *258 N.J. 32 (1962), a wheel created by HDAG to insure the distribution and sale of its printing presses in New Jersey as well as in the other states included in Heidelberg Eastern's exclusive territory.
In those circumstances it is neither unfair nor unjust to subject HDAG to a suit in this State by a New Jersey resident who, while operating one of HDAG's presses in this State, was injured by reason of an alleged defect in the press. See Roche v. Floral Rental Corp., 95 N.J. Super. 555 (App. Div. 1967), aff'd o.b. 51 N.J. 26 (1968).
The orders appealed from are affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262566/ | 113 N.H. 303 (1973)
STATE OF NEW HAMPSHIRE
v.
JACK W. MOREAU
STATE OF NEW HAMPSHIRE
v.
ARTHUR W. MOREAU
No. 6118.
Supreme Court of New Hampshire.
June 29, 1973.
*304 Warren B. Rudman, attorney general, and David W. Hess, assistant attorney general (Mr. Hess orally), for the State.
James H. Dineen (of Maine), and Myron D. Rust (Mr. Dineen orally), for the defendants.
KENISON, C.J.
The issues in this search and seizure case are whether there was probable cause for the issuance of the search warrant and whether the scope of the search was impermissibly broad. After an exclusionary hearing before the superior court, at which the only witness was Lieutenant Inspector William Mortimer of the Portsmouth Police Department, defendants made a motion to suppress the marijuana, heroin, amphetamine, and a pistol obtained by the police during the search. The motion was denied by the Court (Grant, J.), and the defendants consented to the entry of guilty findings subject to a consolidation of their cases and a review in this court of the validity of the warrant and the legality of the search.
The defendants are brothers who resided in separate rooms *305 in a building owned and occupied by their mother in Portsmouth, New Hampshire. Jack resided in a basement room, and Arthur's bedroom was part of the general living quarters on the main floor. The search warrant was obtained by Lieutenant Mortimer from District Court Judge Samuel Levy on January 5, 1970, upon the strength of an affidavit and oral statement of Mortimer relating his knowledge of a sale of marijuana to a police informant by Jack Moreau at the Moreau residence, and certain additional facts. The warrant specified as the place to be searched "the living quarters of Lenora M. Moreau and Jack Moreau within the two and a half story frame building situate at said 259 Maplewood Avenue, occupied by said Lenora and Jack Moreau." Two to three hours after the warrant was issued, Mortimer and several other officers searched each of the rooms of the Moreau residence, locating marijuana, amphetamines and a pistol in Jack's bedroom and heroin and marijuana in Arthur's bedroom.
The defendants' primary contention is that the search warrant was issued without probable cause because it was based almost solely upon the actions and information of an unreliable informant. They point to the fact that there were federal drug charges pending against the informant, Paul E. White, and conclude that he might well have had a motive to falsify his information in order to obtain a favorable disposition of his own case. We first note that we can locate no evidence in the record that anyone agreed to drop any charges against White in exchange for his help as an informant, as asserted by the defendants. See Supreme Court Rule 4, specifying that "briefs should contain accurate page citations to the pertinent portions of the transcript" supporting material statements of fact. RSA 490:App. R 4 (Supp. 1972). Lieutenant Mortimer testified in this regard that he had merely agreed to write a letter in White's behalf to the federal authorities indicating his assistance and regardless of the outcome of the Moreau case.
The informant implicated himself in telling Mortimer, as related in the affidavit, that his awareness of drug sale activities at the Moreau residence stemmed from his own purchase of marijuana from Jack Moreau prior to becoming *306 an informer. The United States Supreme Court has recently sustained from a lack of probable cause attack a similar affidavit which was also based upon the representations of a first-time informer of doubtful character: "People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a `break' does not eliminate the residual risk and opprobrium of having admitted criminal conduct." United States v. Harris, 403 U.S. 573, 583-84, 29 L. Ed. 2d 723, 734, 91 S. Ct. 2075, 2082 (1971); accord, State v. Appleton, 297 A.2d 363 (Me. 1972); W. Ringel, Searches & Seizure, Arrests and Confessions § 337.01 (1972), citing 5 J. Wigmore, Evidence § 1457, at 262-63 (3d ed. 1940).
In addition to White's purchase of marijuana at the Moreau residence on November 28, 1969, prior to his enlistment as an informer, the affidavit recites that White made a second marijuana purchase as an informer on December 18. On this occasion White was taken to a room in the Moreau house where he saw "plastic bags containing marijuana, plastic bags containing a white substance and various and sundry clear plastic vials containing various pills and tablets," as stated in Mortimer's affidavit. The affidavit further recites that White turned over to Mortimer the marijuana purchased at the Moreau house which was analyzed to be marijuana; that another party, one Alexander Berry, told White that Jack Moreau and Berry "were in the business of selling marijuana and other `dangerous narcotic drugs' together;" that White attempted to make another purchase at the Moreau residence on January 2, 1970, but was told by Berry "that he and Moreau were only selling to three people;" that White was thereupon taken by Berry to another location where White purchased another bag of marijuana; and that Jack Moreau on one occasion informed Lieutenant Mortimer that he was a user of marijuana and "speed". Mortimer testified that he also verbally informed Judge Levy of certain other information prior to the issuance of the warrant, including White's "legal difficulties" in connection with his own *307 possession of marijuana, that the December 18 purchase had been made from Jack in a basement room of the Moreau premises, and that Arthur Moreau was believed to have sold LSD to an individual on a prior occasion. Mortimer also told Judge Levy that he had "surveilled" White and had seen him enter and depart from the Moreau residence and that he had personally corroborated certain other specified incidentals to White's story and was satisfied with its veracity.
"Under our practice, the evidence relied upon by an officer or magistrate to justify the issuance of the search warrant is not required to be fully contained in the complaint upon which the warrant is issued. . . . The issue of probable cause in such a case, may be determined on the basis of all the evidence presented to the magistrate." State v. Titus, 106 N.H. 219, 222, 212 A.2d 458, 460 (1965); accord, State v. Salsman, 112 N.H. 138, 290 A.2d 618 (1972); see United States v. Harris, 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971). The judge issuing the warrant in this case was thus "informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was `credible' or his information `reliable'." Aguilar v. Texas, 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514 (1964); accord, United States v. Harris supra; see Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969).
The defendants also contend that the time lag between the last sale of narcotics at the Moreau premises on December 18, 1969, and the issuance of the warrant on January 5, 1970, was too long to support a valid warrant. While the only case cited by the defendants on this point involved a lag of some three and a half months, as compared with the eighteen-day lag here, we agree that the probable cause springing from specific facts diminishes with the passage of time. "Facts other than the mere single sale," however, "may be presented in the affidavit to establish the probable continuing presence of contraband in the place to be searched allowing for a longer period of time between the observation of the facts and the time of the making of the affidavit." State v. Appleton, 297 A.2d 363, 370 (Me. 1972). In this case the *308 affidavit states that Alexander Berry, Jack Moreau's associate in the previous sales, made statements to White on January 2, 1970, indicating that they both were still selling narcotics, albeit to a limited number of persons. Thus, this case presents in fact only a three-day delay which in the context of these facts is not unreasonably long. We hold that the warrant and resulting search were supported by probable cause.
Defendants' final contention is that the scope of the actual search, including particularly the bedrooms of both defendants, was broader than authorized under the warrant which specified "the living quarters of Leonora M. Moreau and Jack Moreau within the two and a half story frame building . . . occupied by Leonora and Jack Moreau." Jack's contention is that his basement room was not part of the two and a half stories and so was not indicated by the description on the warrant. To be sure search warrants must describe with particularity the area to be searched and the things to be seized. U.S. CONST. amend. IV; N.H. CONST. pt. 1, art. 19; e.g., Marron v. United States, 275 U.S. 192, 72 L. Ed. 231, 48 S. Ct. 74 (1927); Steele v. United States No. 1, 267 U.S. 498, 69 L. Ed. 757, 45 S. Ct. 414 (1925); cf. State v. Bradbury, 109 N.H. 105, 243 A.2d 302 (1968). "It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended." 267 U.S. at 503, 69 L. Ed. at 760, 45 S. Ct. at 416; accord, State v. Costakos, 101 R.I. 692, 226 A.2d 695 (1967); People v. Estrada, 234 Cal. App. 2d 136, 44 Cal. Rptr. 165 (1965). "A description which identifies with reasonable certainty the place or places to be searched is sufficient." Metcalf v. Weed, 66 N.H. 176, 177, 19 A. 1091 (1889). The police were not confused that Jack's bedroom was theoretically "under" rather than "within" the house. Jack's room was described in the warrant with reasonable certainty and the evidence seized therein by the police was legally obtained under the warrant.
Arthur's contention is that his bedroom was unlawfully searched since it was not specifically mentioned in the warrant which specified only the living quarters of his mother and brother. Lieutenant Mortimer testified that the area was so described in the warrant because he was aware that other *309 persons resided in apartments at the same address and that the need for a search was indicated only in the Moreau family portions of the building. A search warrant directing the search of a multi-occupancy building must particularly describe the specific living units to be searched. E.g., State v. Costakos, 101 R.I. 692, 226 A.2d 695 (1967); People v. Estrada, 234 Cal. App. 2d 136, 44 Cal. Rptr. 165 (1965). The evidence does not show that Arthur's bedroom was a separate living unit from the living quarters of his mother. The fact that he paid rent to his mother is insufficient by itself to establish the separateness of his bedroom from the rest of the mother's living quarters. People v. Gorg, 157 Cal. App. 2d 515, 321 P.2d 143 (1958); Gill v. State, 71 Okla. Crim. 247, 110 P.2d 926 (1941). When "only one `place' is described . . . the warrant is sufficient where, at a single street address, the occupants reside as one family, even though rooms are rented and the tenants of such rooms are not, under the circumstances, shown to be keeping separate establishments within the home of said occupants." Id. at 251, 110 P.2d at 928. The sparse evidence in the record pertinent to this point indicates that Arthur's bedroom was part of the family living quarters generally under the control of the mother and authorized to be searched. Robertson v. State, 188 Tenn. 471, 221 S.W.2d 520 (1949). Under these circumstances, the search of Arthur's room was authorized by the search warrant, and the evidence seized therein was validly obtained.
We conclude that the warrant was issued upon probable cause and that the search did not exceed the scope of the warrant. Defendants' motion to suppress the evidence obtained in the search was therefore properly denied.
Exceptions overruled; remanded.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262569/ | 306 A.2d 659 (1973)
Raymond C. BURLESON, Appellant,
v.
UNITED STATES, Appellee.
No. 6645.
District of Columbia Court of Appeals.
Argued February 6, 1973.
Decided June 29, 1973.
Herbert A. Fierst, Washington, D. C., appointed by this court, for appellant.
Michael W. Dolan, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John S. Ransom, Asst. U. S. Attys., were on the brief, for appellee.
Before KERN and HARRIS, Associate Judges, and HOOD, Chief Judge, Retired.
HOOD, Chief Judge, Retired:
This appeal centers largely around the admission in evidence of a pistol in a trial that resulted in appellant's conviction on a *660 charge of assault with a dangerous weapon.[1]
The alleged assault occurred on the stairway and in the hall of a hotel at about one o'clock in the morning. Only two witnesses, the complainant and the appellant, testified as to the occurrence. Complainant testified that appellant came at him "swinging the gun around . . . and he kicked me down the stairs and pushed me around, poking me with the gun," that complainant called the police from a telephone in the hall and appellant then ran out the door and down the street, "got in his car and took off."
Appellant testified he went to the hotel to try to collect a bill from complainant,[2] that complainant "grabbed at me" and "I kicked him down the steps," "dropped the bill on top of him while he was laying down," and told him, "I found you and you're going to pay it." Appellant then left the hotel. He denied having a gun with him at the time.
A police officer testified that sometime after midnight there was a radio broadcast to locate a particularly described automobile and it was found at about 1:20 a. m. some twelve or more blocks from the hotel where the alleged assault occurred. The car was parked and unoccupied. A stakeout was set up and at about 5:50 a. m. a car drove up and stopped behind the parked car. In the second car were two persons, appellant's brother who was driving and appellant sitting in the front passenger seat. Appellant got out and entered the parked car and both cars drove away but were soon stopped by the police.
Appellant was arrested and his car searched for weapons but none were found. The police then searched the brother's car and found a .38 caliber revolver under the front seat on the passenger's side. This gun was introduced into evidence under the following circumstances.
The police officer identified the revolver as a .38 caliber taken from the brother's car and identified six rounds of ammunition taken from the gun. The complainant testified that the gun with which appellant threatened him was a loaded black 38, and when shown the gun produced by the officer stated he was "reasonably sure" it was the same weapon but could not be positive because "all 38's look alike." Appellant testified the gun removed from his brother's car belonged to his brother-in-law.
At the beginning of the trial defense counsel had inquired if the government intended to offer the gun in evidence, and, if so, what connection it had with appellant. Government counsel replied that the gun would be identified by complainant "as similar" to the one used by appellant. Defense counsel then stated, and apparently government counsel agreed, that originally appellant's brother had been charged with possession of the gun but the gun had been suppressed as the product of an illegal search, and that defense counsel had not anticipated that the gun suppressed in the other case would be offered in evidence in this case. He asked leave to move in this case to suppress the gun.
The trial court questioned the necessity of introduction of the gun to prove the government's case because there was "a witness that said he saw the gun in his (appellant's) hand, and that is all that is necessary for the assault charge." When the government insisted it wished to put the gun in evidence, the court denied appellant's motion to suppress as "not having been properly made." When the gun was offered in evidence, objection was renewed but overruled, the court saying: "I want the record to show that it is because of the lack of timeliness of the motion."
*661 Relying upon D.C.Code 1972 Supp., § 23-104(a)(2) and Criminal Rules 12(b)(3) and 41(g) of the trial court which require that a motion to suppress be made before trial "unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion," the government argues that the trial court correctly denied the motion as untimely. Appellant says that because the gun was taken from his brother's car and thereafter suppressed, he could not have reasonably anticipated that the gun would be used against him, and consequently his delay should have been excused. The government says that even if the motion had been permitted, it would have had to be denied because of lack of standing by appellant to question search of his brother's car at a time after appellant had voluntarily left the car.[3]
Aside from the question of the timeliness of the motion to suppress and the merits of the motion itself, we think there is a more fundamental question of the admissibility of the gun in evidence, assuming that it had been lawfully seized. The question is, in the words of counsel at trial, "what connection that gun" had with appellant?
Real or visual evidence, like any other evidence, is admissible if it has some evidentiary value on some issue in the case, but it is not admissible if it is incapable of affording a reasonable inference as to a matter in dispute. The evidence must have some connection with the defendant or the crime with which he is charged, and should not be admitted if the connection is too remote or conjectural. What then was the connection between the gun and appellant?
The only connection was that the gun, similar to one complainant said appellant had used, was found, nearly 5 hours after the alleged assault had occurred and not within the neighborhood of the hotel where the assault took place, in an automobile owned and driven by appellant's brother, and in which a short time before appellant had been a passenger. Would admission of that gun in evidence furnish a reasonable basis for inference by the jury that it or one similar to it was used by appellant? We think not. There was no evidence that appellant owned the gun or had possession of it before or after the alleged assault. It may be argued that appellant, when a passenger in his brother's car, had constructive possession of the gun as he could have reached under the seat and taken it, but there is no evidence he knew the gun was there. Complainant's testimony that he was reasonably sure the gun was the same one he said appellant used, is entitled to little weight because he could point to no identifying mark and admitted that, as far as he was concerned, all 38's look alike. In our opinion any connection between the gun produced and the alleged assault would be purely conjectural.
We are well aware that instruments of crime, such as guns, knives, etc., have been admitted where the identification was not positive, it being held that the lack of positive identification goes to the weight and not the admissibility of the evidence; but before its admission some connection with the accused or the crime must be established. See, for example, United States v. Robinson, 475 F.2d 376 (D.C.Cir., 1973), where gun was obtained from wife of accused and later accused admitted ownership; United States v. Trantham, 145 U. S.App.D.C. 113, 448 F.2d 1036 (1971), where gun was recovered from rear seat of getaway car shortly after a robbery and there was legitimate inference that the occupants were engaged in a joint criminal venture; Pinkney v. United States, 124 U. S.App.D.C. 209, 363 F.2d 696 (1966), where knife was found in patrol wagon sometime after accused was a passenger but had been "accurately described" by a witness prior to being found; Morton v. United States, 87 U.S.App.D.C. 135, 183 F.2d 844 (1950), where murder weapon was not found but evidence that accused *662 had a gun two weeks prior to the murder was admitted because prior possession of physical means of committing crime was some evidence of the probability accused did it; State v. Cofer, 73 Idaho 181, 249 P.2d 197 (1952), where gun was found in accused's car 20 hours after the robbery and admitted by accused to be his gun; State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1952), where gun was shown to have been in possession of accused both before and after crime.
Furthermore, in many, if not all, of the cases where the gun or other weapon is admitted, there is no dispute that a crime was committed and that a weapon was used in committing the crime. The question in those cases is not whether a weapon was used but whether the accused used it. Here the vital issue was whether a gun was used in the altercation. Complainant said accused used a gun; accused says he did not. If no gun was used, the charge of assault with a dangerous weapon had to fall.
In many cases, introduction of a gun similar to that used will play "practically no part in the conviction,"[4] but here where use of a gun is the disputed and only issue, introduction of a gun in evidence is likely to have a damaging impact on the jury. A distinguished authority has warned that "there is a general mental tendency, when a corporal object is produced as proving something, to assume, on sight of the object, all else that is implied in the case about it. The sight of it seems to prove all the rest."[5] In other words, the jury here would have a tendency to believe not only that the gun produced was similar to that complainant said accused used but also that the accused did in fact use a gun.
Our conclusion is that admission of the gun should have been rejected because its connection with appellant was too conjectural and remote, and that its admission constituted reversible error.
In closing we note, as the trial judge said early in the case, it was not necessary for the government to produce a gun in order to sustain a conviction. If the jury believed complainant's testimony that appellant threatened him with a gun, that was sufficient.
Reversed with instructions to grant a new trial.
NOTES
[1] D.C.Code 1967, § 22-502.
[2] The bill was for hospital expenses incurred by appellant as a result of having been shot by complainant in the previous month. Complainant's wife had been more than friendly with appellant.
[3] See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).
[4] Mitchell v. United States, 110 U.S.App. D.C. 322, 328, 293 F.2d 161, 167 (1961).
[5] 7 Wigmore on Evidence § 2129 (3d ed. 1940). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262572/ | 239 P.3d 294 (2010)
2010 UT App 226
Gina M. ARNOLD and Charlie S. Arnold, Plaintiffs and Appellants,
v.
David GRIGSBY, M.D.; et al., Defendant and Appellee.
No. 20060481-CA.
Court of Appeals of Utah.
August 26, 2010.
*295 Roger P. Christensen and Karra J. Porter, Salt Lake City, for Appellants.
Larry R. White and Paul D. Van Komen, Salt Lake City, for Appellee.
Before Judges DAVIS, ORME, and VOROS.
OPINION
ORME, Judge:
¶ 1 Plaintiffs Gina M. and Charlie S. Arnold appeal the trial court's summary judgment order in favor of defendant David Grigsby, M.D., which determined that, pursuant to the generally applicable tolling statute, see Utah Code Ann. § 78-12-35 (2002),[1] the statute of limitations was not tolled by Dr. Grigsby's departure from the state of Utah and that the Arnolds' claims were time-barred by the two-year statute of limitations contained in the Utah Health Care Malpractice Act (the Malpractice Act), see id. § 78-14-4(1).[2] We previously reversed the trial court's order, concluding that Dr. Grigsby's absence from the state did in fact toll the applicable statute of limitations. See Arnold v. Grigsby (Arnold I), 2008 UT App 58, ¶ 24, 180 P.3d 188. However, the Utah Supreme Court granted certiorari; concluded that the tolling provision at issue, see Utah Code Ann. § 78-12-35, was inapplicable to the Arnolds' medical malpractice action; and remanded to us to consider whether the Arnolds' complaint was timely under the Malpractice Act's statute of limitations. See Arnold v. Grigsby (Arnold II), 2009 UT 88, ¶¶ 5, 25, 225 P.3d 192. We again reverse and remand for trial.
BACKGROUND[3]
¶ 2 On July 22, 1999, Dr. Gary White performed a colonoscopy on Gina Arnold at Uintah Basin Medical Center (UBMC). The next day, Gina began experiencing pain in her lower abdomen and sought treatment at UBMC's emergency room. Dr. White determined that Gina's colon was perforated, admitted her to the hospital, and prescribed treatment with antibiotics. Gina remained hospitalized for four days, after which Dr. *296 White discharged her, instructing her to continue taking oral antibiotics and to return to the UBMC emergency room to receive intravenous antibiotics until Dr. White could see her again three days later.
¶ 3 Despite the antibiotic treatment, Gina's condition worsened, and on August 3, 1999, she was readmitted to UBMC, where Dr. White performed exploratory laparoscopic surgery. After Dr. White had commenced the surgery, Dr. David Grigsby entered the operating room and participated in the procedure. Dr. White's operative report indicated that he was the surgeon and that Dr. Grigsby assisted him.
¶ 4 In the week that followed, Gina had two more laparoscopic surgeries at UBMC, one performed by Dr. White on August 5, 1999, and another performed by Dr. Grigsby on August 11, 1999.[4] A day or two after the final laparoscopy, while discussing the possibility of Gina being transferred to the care of another physician or hospital, Dr. White asked Charlie Arnold: "Have you lost faith in me? You don't trust me?" The answer to those questions was apparently in the affirmative, and on August 16, 1999, Gina was transferred to St. Mark's Hospital in Salt Lake City for further treatment.
¶ 5 In September 1999, because Gina "just knew something hadn't happened right" with her treatment at UBMC, the Arnolds retained legal counsel. On November 16, 1999, the Arnolds' counsel sent UBMC a letter requesting Gina's medical records and stating that he represented Gina "relative to treatment she received following complications arising from an initial diagnosis and treatment of her for an intestinal condition by Dr. Gary White." The letter also stated that counsel was "still in the investigatory stage of our representation," investigating "the possibility of claims that may be filed in relation to her initial diagnosis and/or treatment." Eight months later, in July 2000, Dr. Grigsby departed the state, moving from Roosevelt, Utah, to Oneida, Tennessee.
¶ 6 On December 4, 2001, the Arnolds filed a Complaint and Jury Demand in district court. The complaint listed both Dr. White and Dr. Grigsby as defendants, but Dr. Grigsby was never actually served with the complaint, nor was he included in the prelitigation process.
¶ 7 In October 2003, the Arnolds deposed Dr. White. In his deposition, Dr. White testified that Dr. Grigsby became Gina's primary doctor upon participating in the August 3, 1999, laparoscopic procedure and ultimately was in charge of Gina's care; that Dr. White preferred to convert the August 3, 1999, surgery from a laparoscopic procedure into an open procedure, but Dr. Grigsby decided against it; and that although Dr. Grigsby was not physically present at the August 5, 1999, surgery, Dr. White performed the procedure that Dr. Grigsby directed, instead of a different procedure that Dr. White himself favored. Based in part on the information gleaned in Dr. White's deposition, the Arnolds filed an Amended Complaint and Jury Demand on August 6, 2004, which was served on Dr. Grigsby.
¶ 8 At his deposition in May 2005, Dr. Grigsby disputed much of Dr. White's account as outlined at Dr. White's 2003 deposition, but he acknowledged that he had a number of conversations with the Arnolds in 1999 during the time Gina received treatment at UBMC. And in their depositions in August 2005, the Arnolds testified that while Gina was still at UBMC prior to being transferred to St. Mark's Hospital, they were aware of Dr. Grigsby's participation in Gina's medical treatment.
¶ 9 In September 2005, Dr. Grigsby moved for summary judgment on the ground that the Arnolds' medical malpractice claims were barred by the two-year statute of limitations, which had expired before the December 4, *297 2001, filing of the complaint. The trial court granted Dr. Grigsby's motion for summary judgment and dismissed the Arnolds' claims against him. The Arnolds appealed.
¶ 10 In 2008, we reversed the trial court's order granting summary judgment in favor of Dr. Grigsby. See Arnold I, 2008 UT App 58, ¶ 1, 180 P.3d 188, rev'd, 2009 UT 88, 225 P.3d 192. We relied on the "generally applicable tolling statute," see id. (citing Utah Code Ann. § 78-12-35 (2002)), "which suspends the running of a statute of limitations when a defendant departs from Utah after a cause of action has accrued against him." Arnold I, 2008 UT App 58, ¶ 1, 180 P.3d 188. We stated that the trial court "erred in determining that the tolling statute does not apply to Dr. Grigsby because he was amenable to service of process under Utah's long-arm statute," id. ¶ 24, and concluded that
the tolling statute suspends the running of the statute of limitations during the time a defendant is absent from the state if he has not appointed a Utah agent to receive service of process[,] ... even if the defendant is subject to Utah's jurisdiction and amenable to service of process under Utah's long-arm statute.
Id. In response, Dr. Grigsby sought a writ of certiorari, which the Utah Supreme Court granted. See Arnold v. Grigsby, 189 P.3d 1276 (Utah 2008).
¶ 11 In 2009, the Supreme Court reversed our decision, "conclud[ing] that the tolling provisions of section 78-12-35 do not apply to the Arnolds' medical malpractice action against Dr. Grigsby." Arnold II, 2009 UT 88, ¶ 25, 225 P.3d 192. The Supreme Court remanded the matter to us "for consideration of other issues raised on appeal that may be necessary for proper resolution of the appeal," id., namely the Arnolds' contention that their action against Dr. Grigsby was timely under the Malpractice Act's statute of limitations, see Utah Code Ann. § 78-14-4, notwithstanding any applicability of the general tolling statute, see id. § 78-12-35. The pivotal issue now before us is whether the trial court erred in ruling, as a matter of law, that the two-year statute of limitations had expired at the time the Arnolds brought suit against Dr. Grigsby.
STANDARD OF REVIEW
¶ 12 Summary judgment may be granted only when there are no genuine issues of material fact and "the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). "[I]n reviewing a grant of summary judgment, we analyze the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 841 (Utah 1996) (alteration in original) (citation and internal quotation marks omitted). "Because the determination of whether summary judgment is appropriate presents a question of law, we accord no deference to the trial court's decision and instead review it for correctness." Id.
ANALYSIS
¶ 13 "The ... Malpractice Act requires a patient to bring a claim for malpractice no more than two years after the patient discovers or should have discovered the injury." Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 1, 221 P.3d 256. See Utah Code Ann. § 78-14-4(1) (2002). In other words, "a patient must discover the legal injurythat is, both the fact of injury and that it resulted from negligencebefore the statute of limitations begins to run." Daniels, 2009 UT 66, ¶ 1, 221 P.3d 256. The question of when a plaintiff knew or should have known sufficient facts to trigger a statute of limitations presents a "classic factual dispute that should be resolved by the finder of fact." Sevy v. Security Title Co., 902 P.2d 629, 634 (Utah 1995) (citation and internal quotation marks omitted).
¶ 14 At oral argument, both parties arguedand we agreethat the Utah Supreme Court's recent decision in Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, 221 P.3d 256, is highly instructive in the case before us. In Daniels, the trial court regarded the inquiry into when the statute of limitations began to run as a factual one and instructed the jury that the statute of limitations began to run when the plaintiff discovered his medical treatment had been negligent. See id. ¶ 18. The jury decided in *298 favor of the defendants. See id. ¶ 19. On appeal, the plaintiff asked the Utah Supreme Court to determine whether, under the Malpractice Act's discovery rule, "the statute of limitations period for his claim was triggered when he discovered that he might have been treated negligently during the course of multiple procedures performed at different times and by different providers, or when he discovered that the specific treatment he received from [the defendants] might have been negligent." Id. ¶ 1.
¶ 15 The Daniels court concluded "that the trial court's jury instruction misapplied the... Malpractice Act and our case law interpreting its discovery requirements." Id. ¶ 22. Indeed, the Supreme Court held that the Malpractice Act's "statute of limitations does not begin to run until a patient discovers or should have discovered his legal injury," id. ¶ 1, which "includes discovering the causal event of the injury," id. ¶ 25 (emphasis added). Moreover, the Supreme Court emphasized that "the determination of when a plaintiff is aware of the causal fact turns on a jury's determination of when a plaintiff acting with reasonable diligence discovered or should have discovered which event might have caused his injury." Id. (emphasis in original). Indeed, the Court observed, "[n]othing in the statute's language or our interpretation of the statute limits the discovery of an injury to merely suspecting negligence without identifying its source." Id. ¶ 27.
¶ 16 The Daniels court also considered this court's decision in McDougal v. Weed, 945 P.2d 175 (Utah Ct.App.1997), in which it was held "that the medical malpractice statute of limitations is tied only to the discovery of the plaintiff's legal injury and not to the discovery of the tortfeasor's identity." McDougal, 945 P.2d at 178. See Daniels, 2009 UT 66, ¶ 28, 221 P.3d 256. The Supreme Court indicated that in the Daniels case, "the identity of [the] specific tortfeasor [was not] at issue, but rather the identification of the medical event that caused the injury." Daniels, 2009 UT 66, ¶ 29, 221 P.3d 256. The Supreme Court explained:
[W]hen a patient has received multiple medical treatments or undergone numerous medical procedures, and subsequently suffers unforeseen complications or reactions, he may suspect negligence. This patient, however, has not discovered his legal injury because, while he is aware that he is injured, and even if he is aware that negligence may be the source, he has not sufficiently tied it to its source in a medical procedure. Therefore, we hold [that] ... while a patient may not be required to discover the specific individual responsible for his injury, he must discover the causal event before the statute of limitations begins to run.
Id. (emphases added). "With these concerns in mind, it follows that a patient must not only suspect negligence in a medical treatment, but must also suspect which treatment in particular implicates negligent care to avoid pursuing unfounded litigation." Id. ¶ 30 (emphasis added).
¶ 17 The statute of limitations begins to run when a patient, exercising "reasonable diligence in investigating a suspected injury ... should have discovered his injury and its possible negligent cause." Id. ¶ 31. "Whether and when a patient should have discovered an injury and its cause is a fact-intensive question that requires a jury to determine, given the information available, whether the actions taken in response to an injury and the efforts extended to discover its cause were adequate."[5]Id. See Sevy, 902 P.2d at 634.
¶ 18 Initially, we note that much of the Arnolds' argument on appeal focused, for statute of limitations purposes, on the point in time when the Arnolds knew of Dr. Grigsby's involvement in the alleged negligence. Under Daniels, however, the relevant date is not when the Arnolds learned the extent of Dr. Grigsby's general involvement in Gina's treatment but, rather, when they discovered the causal event culminating in Gina's legal *299 injury. See Daniels, 2009 UT 66, ¶ 29, 221 P.3d 256.
¶ 19 Here, it is unclear that a specific, causal event of negligence was ever discovered. The Arnolds' original complaint, dated December 4, 2001, named both Dr. White and Dr. Grigsby as defendants and alleged negligence in the initial colonoscopy and subsequent treatments, including the various laparoscopic procedures. However, no party has pointed to "which treatment in particular," id. ¶ 30, was negligent and culminated in Gina's legal injury.
¶ 20 At the earliest, negligence in this case occurred on July 22, 1999. However, because Dr. Grigsby was not involved in Gina's original colonoscopy, he most likely could not have been negligent in her treatment, culminating in a legal injury, until his participation in the August 3, 1999, laparoscopic procedure. Negligence also may have occurred, the Arnolds allege, on August 5, 1999, during the laparoscopy performed by Dr. White at the direction of Dr. Grigsby. Seemingly, Dr. Grigsby's only other significant involvement in Gina's care was the laparoscopy he performed on August 11, 1999, the last treatment during which he could have been negligent. Dr. Grigsby's involvement, and therefore his potential negligence, can likely be narrowed down to having occurred between August 3 and August 11, 1999. However, narrowing down the time frame of the occurrence of alleged negligence is not determinative. The statute of limitations does not begin to run until the Arnolds discovered or should have discovered "the causal event of the injury." Id. ¶ 25.
¶ 21 In late 1999, the Arnolds consulted an attorney, who mailed a letter to UBMC on November 16, 1999, requesting Gina's medical records. Given that the medical records clearly state Dr. Grigsby's involvement in Gina's care, the Arnolds definitely knew or should have known, upon receipt of the medical records,[6] that any actionable negligence by Dr. Grigsby likely occurred between August 3 and August 11, 1999. But one cannot glean from the medical records alone any information indicating that any particular procedure, including any in which Dr. Grigsby was involved during early August 1999, was negligently performed. Thus, review of the medical records did not permit the Arnolds to identify which procedure, under Daniels, was the triggering "causal event." Id. ¶ 29.
¶ 22 Of course, despite the arguments made by the parties on appeal, Daniels makes clear that this is, unlike most statute of limitations issues, ordinarily a jury question. See id. ¶ 31. The wisdom of this view is buttressed by the ambiguous facts of this case. It is undisputed that the Arnolds knew that something was wrong shortly after Gina underwent the procedures at UBMC, but we are not prepared to say that the average layperson in the Arnolds' position would have known this was because a mistake was made or been able to identify the legal cause, or causal event, of Gina's injuries in the months following her treatment. Cf. USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 32, 235 P.3d 749 (stating that "[e]ven absent a complete conflict as to certain facts, a dispute of the understanding, intention, and consequences of those facts may defeat summary judgment") (citation and internal quotation marks omitted). Indeed, Dr. Grigsby would have us conclude that by November 11, 1999, at the latest, the Arnolds experienced some sort of "ah-HA" moment in which they recognized the causal event of Gina's injuries. But given the facts of this case, we cannot conclude that such an epiphany occurred when the Arnolds merely suspected something had gone wrong, or when they hired an attorney, or even when they received Gina's medical records, which do not concede or even suggest negligence at any point during her care.
¶ 23 To take the determination away from the jury, Dr. Grigsby had the burden of demonstrating as a matter of law that the Arnolds' complaint against him was time-barred when it was filed on December 4, 2001. See generally Utah R. Civ. P. 56(c). Dr. Grigsby has failed to make this showing *300 because he has not demonstrated that the Arnolds knew or should have known which procedure was the causal event of Gina's injuries more than two years prior to filing their complaint, as required by Daniels. On the record as it now stands, a jury might well conclude that the cause of Gina's legal injury was Dr. Grigsby's decision to stick with an ineffective laparoscopic procedure when an open procedure was called fora fact of which the Arnolds arguably did not learn until Dr. White's 2003 deposition.
¶ 24 Therefore, as in Daniels, the pivotal statute of limitations issue in this case presents a fact-sensitive question to be decided by a jury at trial. See Daniels, 2009 UT 66, ¶ 31, 221 P.3d 256. As stated by the Utah Supreme Court, "[w]hether and when a patient should have discovered an injury and its cause is a fact-intensive question that requires a jury to determine, given the information available, whether the actions taken in response to an injury and the efforts extended to discover its cause were adequate." Id. Accordingly, we reverse the trial court's summary judgment in favor of Dr. Grigsby and remand for trial, at which the jury can determine this question along with the other disputes at issue in this case.
CONCLUSION
¶ 25 Dr. Grigsby failed to demonstrate as a matter of law that the Arnolds' complaint was not timely filed. We reverse the trial court's grant of summary judgment in favor of Dr. Grigsby and remand for trial.
¶ 26 WE CONCUR: JAMES Z. DAVIS, Presiding Judge and J. FREDERIC VOROS JR., Judge.
NOTES
[1] The Legislature reorganized Title 78 of the Utah Code in 2008, resulting in the renumbering of this section to 78B-2-104. See Utah Code Ann. § 78B-2-104 amend. notes (2008). For consistency with the previous decisions in this case, we cite to the prior version of the statute.
[2] This section was renumbered in 2008 as section 78B-3-404. See Utah Code Ann. § 78B-3-404 amend. notes (2008). Again, for consistency with the earlier decisions in this case, we cite to the prior version of this statute.
[3] We recite the facts pertinent to the Arnolds' remaining issue on appeal in the light most favorable to the Arnolds. See DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 841 (Utah 1996) ("[I]n reviewing a grant of summary judgment, we analyze the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.") (alteration in original) (citation and internal quotation marks omitted).
[4] The record indicates that Dr. Grigsby did not physically participate in the July 22, 1999, colonoscopy nor the August 5, 1999, laparoscopy. Dr. Grigsby's actual hands-on involvement with treating Gina appears to be limited to the August 3, 1999, laparoscopy, during which he assisted Dr. White, and the August 11, 1999, laparoscopy, which he conducted alone. Additionally, there is no evidence to suggest that Dr. Grigsby was involved in Gina's treatment during the four-day hospitalization in which she was treated with antibiotics. The July 27 discharge summary recites, without elaboration, that "[i]t was Dr. Grigsby's opinion that the air should have stayed there for three to four days before it finally dissipated."
[5] The Daniels court further explained that a jury "cannot undertake such a fact-specific inquiry without being informed as to which event it is evaluating for whether the plaintiff was aware or should have been aware of what was the negligent cause of his injury." Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 31, 221 P.3d 256 (emphasis added).
[6] The date on which Gina's medical records were received by her attorney is not in the record on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262584/ | 124 N.J. Super. 291 (1973)
306 A.2d 477
JERSEY CITY REDEVELOPMENT AGENCY, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
GEORGE A. WEISENFELD AND ANNE WEISENFELD, HIS WIFE, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued April 30, 1973.
Decided June 6, 1973.
*292 Before Judges CARTON, MINTZ and SEIDMAN.
Mr. Henry J. Wilewski argued the cause for appellant (Messrs. Krieger and Chodash, attorneys).
Mr. Norman H. Roth argued the cause for respondents (Mesrs. Davis and Roth, attorneys).
The opinion of the court was delivered by MINTZ, J.A.D.
In this condemnation non-jury proceeding the trial judge awarded defendants the sum of $150,334 as the fair market value of the subject property, taken by plaintiff condemning authority.
The subject property is in the Paulus Hook Urban Renewal Area which was declared blighted on April 1, 1969.
The trial judge found that the property, a vacant lot, comprised 34,559.7 square feet.
At the oral argument counsel for defendants represented that the property was acquired through a contract in 1965 by a corporation, solely owned by defendants, for $29,375, and subsequently conveyed by that corporation to defendants. Concededly, the acquisition was a "good buy."
*293 On April 23, 1969 defendant George A. Weisenfeld leased the lot to Parking Authority of the City of Jersey City at an annual rental of one dollar. The tenant was required to pay the real estate taxes and convert the demised premises into a parking lot. The landlord reserved the right to terminate the lease upon certain conditions.
Subsequent to the oral argument plaintiff filed an affidavit wherein it appears that the lot was paved by the Parking Authority at a cost of $10,586. It was opened for business in May 1970 as a metered parking lot.
The parties stipulated that on January 16, 1968 defendant George A. Weisenfeld entered into an arms-length contract for the sale of the property. Title did not pass because of a subsurface easement to PATH. Since this easement would affect the cost of construction of any building erected by the purchaser, the latter would not accept the title. The unconsummated contract was terminated on September 15, 1969.
At the rehearing of this cause before the trial judge the contract for the sale of the property for $80,000 was introduced into evidence.
William Robertson, Jr., an expert witness for plaintiff, using comparable sales, valued the property at $66,000 based upon an inaccurate estimate of land area of 28,400 square feet. Joseph Cooney, plaintiff's second expert, using comparable sales, appraised the subject property at $74,500. Sol Gorlin, defendant's expert, valued the property at $203,300 on a capitalization of income approach, based upon the use of the property as a parking lot; and at $202,000 on a comparable sales basis.
The rehearing was granted on the basis of plaintiff's subsequently acquired knowledge of the unconsummated contract for the sale of the property for $80,000. The trial judge reaffirmed his earlier finding that $150,334 represented the fair market value for the subject premises. He referred to the fact that all three experts agreed that the unconsummated contract was not indicative of fair market value. Gorlin *294 stated that he knew of the contract and it did not influence his opinion since he considered the highest and best use of the property was for a parking lot.
Apparently the experts, as well as the trial judge, overlooked the fact that the contract was not consummated because of a title defect. In our judgment, in the absence of a completed sale evidence of the price agreed upon in a binding contract of sale for property between the owner and a purchaser, both acting in good faith, would be of significance in arriving at the fair market value of the property, East Orange v. Crawford, 78 N.J. Super. 239 (Law Div. 1963), with due allowance made for any change in value, if any, from the date of the contract until the declaration of taking.
The trial judge recognized that he was confronted with a great disparity in evaluations, "leaving the arbiter in the unenviable position of trying to decide where the truth lies." In this condition of the evidence the trial court in its discretion may take the initiative towards apprising itself of the findings and opinion of an independent expert in "a quest for the elusive truth of the matter." State v. Lanza, 74 N.J. Super. 362, 374 (App. Div. 1962), aff'd 39 N.J. 595 (1963), app. dism. 375 U.S. 451, 84 S.Ct. 525, 11 L.Ed.2d 477 (1964).
The trial judge afforded no significance to the unconsummated contract. As already noted, this contract was terminated after the declaration of blight, when its potential use as a parking lot might have been recognized by the contract purchaser. Additionally, we find that in the stated circumstances the trial judge should have exercised his discretion and appointed a neutral expert to evaluate the property and testify as to its fair market value.
We reverse and remand the proceeding for a retrial before a trial judge other than the judge before whom the matter was tried. The parties will be allowed 20 days from the date of this opinion to agree upon a neutral expert. Should the *295 parties fail to agree upon a neutral expert, the assignment judge should be immediately notified, and the trial judge to whom this matter will be referred for retrial, without a jury, shall forthwith proceed to select a neutral expert. The expert's charge for the appraisal and testimony will be fixed by the trial judge and paid by either or both of the parties in accordance with the trial judge's determination at the conclusion of the proceeding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262588/ | 900 F.Supp. 197 (1995)
Terrell WALTERS and Joseph Ganci, and All Others Similarly Situated, Plaintiffs,
v.
Governor James EDGAR, Odie Washington, Keith Cooper, Dwayne A. Clark, Sergio Molina, Glenn Johnson, Thomas Page, Richard Gramley, George de Tella, and Peter E. McElhinney, Defendants.
No. 82 C 1920.
United States District Court, N.D. Illinois, Eastern Division.
August 28, 1995.
*198 *199 James P. Chapman, James P. Chapman & Assoc., Chicago, IL, Alan Mills, Chicago, IL, for plaintiffs.
Wallace Cyril Solberg, Ill. Atty. Gen. Office, Chicago, IL, Carol L. O'Brien, Ill. Dept. Corrections, Chicago, IL, for defendants.
MEMORANDUM OPINION FINDINGS OF FACT AND CONCLUSIONS OF LAW
BUCKLO, District Judge.
In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court reiterated that prisoners "beyond doubt . . . have a constitutional right of access to the courts." Id. at 821, 97 S.Ct. at 1494. The Court in Bounds held that prisons must provide inmates with adequate law libraries or "adequate assistance from persons trained in the law" for this right to be meaningful. Id. at 828, 97 S.Ct. at 1498. This case presents the question of whether the Illinois Department of Corrections can satisfy its constitutional obligation to provide meaningful access to the courts to inmates in segregation in maximum security prisons who have no direct access to library books, and at least one third of whom are unable to read or comprehend legal materials, through what is essentially a runner system by which inmates are provided books and materials at their request.
Plaintiffs Terrell Walters and Joseph Ganci brought this class action against Illinois state officials alleging that inmates in segregation in Illinois maximum security correctional facilities are not allowed access to any prison library and that the inmate law clerk system employed in lieu of library access denies plaintiffs reasonable access to the courts in violation of their constitutional rights. Judge James Moran, to whom this case was assigned originally, certified a class consisting of all persons who are presently or will be in segregation in the maximum security facilities of the Illinois Department of Corrections. The case was later assigned to me.[1]
The trial in this case involved many witnesses from all five Illinois maximum security institutions as well as other officials from the Illinois Department of Corrections, non-employees, including experts in various fields and former officials, and inmates. Each side introduced hundreds of exhibits. The transcript covers some 6,000 pages. Following trial, the parties prepared proposed findings as well as supplemental briefs on various issues. There have been numerous supplemental hearings with regard to the evidence. The parties have also submitted additional evidence in response to questions raised during the trial and hearings, and during my consideration of the evidence.
This opinion constitutes my findings of fact and conclusions of law.[*] For the most part, the evidence as to each institution will be considered separately. While the institutions have in common the fact that, as plaintiffs allege, no prisoner in segregation is allowed direct access to any library, there are numerous differences with respect to the substitute system in effect at each institution. Although each utilizes inmate law clerks to help prisoners, there are major differences in terms of the number of inmate law clerks assigned to help inmates in segregation and the type of help they provide.
At two of the institutions in this case, Joliet and Pontiac Correctional Centers, the evidence showed that inmates are unable to be assured of acquiring materials such as copies of cases despite changes made by defendants during the long course of this *200 case. At both of these institutions, and at Menard Correctional Center, defendants failed to demonstrate that inmates who need assistance in preparing complaints or other pleadings will be provided that help. The evidence also showed that one third or more of the inmates in any Illinois prison are illiterate and unable to understand legal materials, and would be incapable without assistance of preparing a complaint that could withstand a motion to dismiss. I conclude that defendants are not providing inmates in segregation at Menard, Joliet or Pontiac Correctional Centers with reasonable access to the courts.
FINDINGS OF FACT[**]
The Plaintiff Class
1. The class certified by Judge Moran in 1985 consisted of all persons who are presently or will be in segregation in the maximum security facilities of the Illinois Department of Corrections. Persons in segregation status include not only inmates sentenced or "assigned" to terms in segregation and who are in the segregation units of the various prison facilities, but also persons detained in segregation during an "investigation" into whether they have violated rules of the Department of Corrections and persons in segregation status who are physically confined in cells outside the segregation unit because of overcrowding.
2. After this case was reassigned to me, defendants sought modification of the class, arguing that prisoners with short stays in segregation would at most suffer a de minimis denial of their right of access to the courts. I agreed with defendants that a de minimis denial of access to the courts had not been accorded constitutional protection under prevailing authority[2] and proposed a tentative modification of the class to exclude such inmates, inviting responses from the parties. Plaintiffs responded, noting various problems with the proposed modification. I have concluded that modification would be practically impossible to manage. The evidence has shown that defendants' calculations of the time an inmate spends in segregation are not reliable. Furthermore, an attempt to limit the class to persons who were in, or expected to be in, segregation status for a specific period of time for instance, 90 days would require that prison personnel continually monitor such sentences for this specific purpose. Finally, as discussed below, the evidence indicates that, at least in the men's prisons, 85 percent of inmates placed in segregation remain there for 90 days or longer. Thus, the class will remain as it was originally certified by Judge Moran.
3. The male members of the class in this case are imprisoned at the Joliet Correctional Center, located in Joliet, Illinois; Stateville Correctional Center, also located in Joliet, Illinois;[3] Pontiac Correctional Center, located in Pontiac, Illinois; and Menard Correctional Center, located in Chester, Illinois.
4. Each of these four institutions is classified as a maximum security prison, meaning that the inmates confined at these institutions are generally those who have been convicted of more serious offenses[4] or have committed serious rule infractions since being confined.
5. The female members of the class are imprisoned at the Dwight Correctional Center, located in Dwight, Illinois. At the time this class was certified on August 8, 1985, Dwight contained minimum, medium, as well as maximum security units.
6. A few weeks before trial of this case commenced, the Illinois Department of Corrections established a minimum security institution for women at Kankakee, Illinois, and was gradually transferring women from Dwight to this new facility. In addition, *201 some women in medium security classifications have been transferred from Dwight to Logan and Dixon Correctional Centers.
The Defendants
7. For purposes of injunctive and declaratory relief, the defendants are all sued in their official capacities. Plaintiffs' claims are therefore treated as claims against the State of Illinois. For simplicity, defendants will sometimes be referred to jointly as the "DOC."
Gangs
8. Richard Gramley, the Warden at Pontiac Correctional Center, testified that 80 percent of the inmates in Pontiac were gang-affiliated. Salvador Godinez, the Warden at Stateville Correctional Center, estimated that 95 percent of the inmates at Stateville were gang-affiliated. Gang members are allowed to hold jobs and a substantial portion of the inmates in segregation are gang members. Warden Gramley testified that he would not be surprised if inmates assigned to the law library were gang members and that there are no screening procedures in place to determine whether inmate law clerks are in fact gang-affiliated. Despite these facts, the evidence did not show that gang affiliation plays a part in the decisions of inmate law clerks to provide materials or assistance to an inmate. There was also no evidence to the contrary. There was evidence that at least one of the named plaintiffs is gang-affiliated, and it may be assumed that most of the inmates who testified have some gang affiliation in light of the substantial percentages of inmate gang affiliations noted by the wardens in this case. The problem of gang affiliation is relevant to the need for supervision of inmate law clerks and the need for procedures to ensure that any inmate requesting assistance has access to lay personnel as well as inmates.
Confinement of Inmates To Segregation
9. Segregation is a "jail within a jail." Inmates are confined to segregation when they violate DOC disciplinary rules, which may range from infractions such as insolence to a correctional officer to serious violent offenses such as physical attacks on guards or other inmates. The purpose of segregation is threefold: to separate the inmates, to punish the inmates, and to deter other inmates.
10. An inmate charged with violating a disciplinary rule is served with a Disciplinary Report, which states the alleged violation. The charge is then heard by the Institutional Adjustment Committee, the members of which are DOC employees. The Committee recommends a punishment, which may include demotion in grade (i.e., deprivation of certain privileges such as commissary, use of the telephone, etc.), loss of "good-time" (which has the effect of lengthening an inmate's period of incarceration), and confinement to segregation for a maximum period of one year. The Adjustment Committee's recommendations as to punishment are subject to approval by the warden of the institution in which the inmate is confined, and can be appealed through an administrative appeal process and ultimately to court.
11. Inmates may be confined to segregation in other circumstances as well. For example, inmates charged with an offense are typically placed in segregation immediately. The Adjustment Committee hearing is held and determination of innocence or guilt is made later. Inmates who have not been charged with any rule violation may also be confined to segregation while an investigation of an incident is pending.
12. Although an inmate may be sentenced to a maximum of one year in segregation for one incident, the inmate may be sentenced to time exceeding one year for separate incidents that occur either before the inmate is placed in segregation or for misconduct taking place while the inmate is in segregation.
13. In an attempt to determine the average length of time an inmate spends in segregation, the parties agreed that defendants would make a random sample of 132 men. Analysis of the sample showed that when separate but continuous segregation assignments were added, 43 of the 132 men, or 32 percent, had served a continuous stretch of at least one year in segregation; 105, or 80 percent, had served more than six consecutive *202 months in segregation; 112, or 85 percent, had served more than 90 days in segregation; and 119, or 90 percent, of the men had served a continuous sentence of at least 60 days in segregation.
14. The uncontradicted testimony at trial, supported by defendants' own exhibits, demonstrates that lengthy stays exceeding one year in segregation are not uncommon.
15. Defendants' Exhibit 153 contains a summary of the Disciplinary Reports received by the named plaintiff, Mr. Walters, between November 9, 1976 and October 23, 1989. During this 13-year period, Mr. Walters appears to have been confined to segregation the entire time, being sentenced to a total of over 80 years of consecutive segregation confinement. However, the maximum sentence on any single Disciplinary Report is one year, and the majority of Mr. Walters' sentences are from 15 to 90 days in length. Therefore, on defendants' report, this 80-year term would be listed as a series of different sentences averaging approximately six months in length.
16. Mr. Spurlock testified that he was placed in West Segregation at Joliet in December, 1989. Three months later, in March, 1990, he was placed in North Segregation at Joliet, where he remained until he was released from segregation in early September, 1990. In late September, 1990, he was returned to North Segregation at Joliet, where he remained until he was transferred to the segregation unit at Pontiac on January 9, 1991. Mr. Spurlock remained in segregation at Pontiac through the time he testified, approximately one year later. Therefore, in the three-year period between December, 1989 and January, 1992, when he testified, Mr. Spurlock was confined to segregation for all but a few weeks in September, 1990.
17. These individual examples of lengthy segregation sentences are confirmed by the testimony of defendants' witnesses. For example, Ms. Wagh, the librarian at Joliet Correctional Center, testified that there was a low turnover of inmates in the West Segregation Unit at Joliet. Assistant Warden Fleming testified that more than half of the inmates in the segregation unit at Stateville had been confined to segregation for more than 90 days.
Representation by Counsel
18. Defendants do not provide inmates in segregation with attorneys to assist them in presenting claims to the courts.
19. While certain private groups occasionally represent inmates, including the American Civil Liberties Union, the Legal Assistance Foundation of Chicago and Chicago Legal Aid to Incarcerated Mothers ("CLAIM"), none of these groups, with the exception of CLAIM (discussed in the section on Dwight Correctional Center), sends lawyers on a regular basis to any of the five institutions at issue in this case to render legal services either to the general population or to inmates confined to segregation. Each group takes only a few select cases of systemic impact. For example, the paralegal at Dwight testified that, although the library refers inmates to outside lawyers for assistance, she was not aware of any inmate who had actually received assistance from any of these groups.
20. While a number of defendants' witnesses emphasized that inmates in segregation were permitted (at least occasionally) to use the telephone[5] or the mails to contact private attorneys in order to gain assistance in presenting their claims to the courts, defendants did not present any evidence indicating that the typical inmate in segregation has the resources required to hire a private attorney, nor is there any evidence in the record suggesting that the private bar has made any commitment to provide inmates in segregation with pro bono assistance.
21. Federal cases filed by members of the plaintiff class are assigned to the U.S. district courts for the Northern, Central, and Southern Districts of Illinois. The Northern *203 District has established procedures for screening inmate claims and, in appropriate cases, appointing attorneys to represent inmates who have filed claims pro se. The evidence establishes that the appointment procedure is of limited use to many inmates in segregation seeking to present a claim. First, a court can appoint an attorney, by definition, only if an inmate has sufficient skills and knowledge to file an action in the federal courts in the first instance. An inmate who lacks the skills or knowledge to formulate a legal claim in the first instance will never be able to file a claim in court and thus will have no opportunity to obtain a court-appointed lawyer. Second, Dale Hayes, the coordinator for prison litigation in the United States District Court in Chicago, testified that most judges appoint an attorney to represent an inmate only after the court makes an initial determination that the prisoner's claim has substantial merit. In practice, that means that the inmate's claim must survive a motion to dismiss and, in some cases, a motion for summary judgment before counsel will be appointed. Mr. Hayes testified that attorneys are appointed for only five percent of all cases filed by inmates.
22. Terrence Madsen, an Assistant Attorney General who testified for defendants, stated that counsel is appointed for inmates who file post-conviction petitions in state court only after the petition survives the State's motion to dismiss. Mr. Madsen further testified that the most common failing of inmates was not setting forth the facts with sufficient specificity and not attaching an affidavit, as required by statute.
Responsibility for Library Services
23. At the time this case was filed, defendants had entered into an agreement with the Secretary of State's office (who also holds the position of State Librarian) to operate the libraries in each of the five institutions at issue in this case. The Secretary of State, in turn, had contracted with regional library systems to provide the services.
24. In 1984, the Department of Corrections assumed partial responsibility for operation of law libraries at each of these prisons. Whereas previously the inmate clerks were employed and supervised by the independent library systems, beginning in 1984 the clerks were paid and supervised directly by DOC personnel.
25. In July, 1989, the defendants terminated all involvement by the independent library systems in the operation of the prison libraries. At that time, the defendants assumed direct economic and supervisory responsibility for all library staff (including both inmate clerks and civilian employees) and for all supplies, purchases, etc. The DOC's direct responsibility for the law libraries continues to the present.
Literacy
26. According to a report from the Illinois Criminal Justice Information Authority, 72.3 percent of male Illinois DOC inmates have not graduated from high school. TRENDS AND ISSUES 91 at 88.
27. Alice Jones, a policy analyst at the Illinois Criminal Justice Information Authority, a state agency, testified regarding the literacy levels of inmates in the Illinois DOC. She stated that, in 1990, the DOC gave 13,803 inmates the Test of Adult Basic Education ("TABE"), which measures basic reading and math skills.[6] Approximately 4,000 inmates (29%) scored below the sixth grade level.[7] The average score of DOC inmates for which test scores were available at the *204 time of trial was eighth grade, one month.[8]
28. Inmates who score below the sixth grade level on the TABE are encouraged to participate in a 90-day basic literacy program that emphasizes reading and mathematics.[9] Of the inmates who retook the test after 45 days of instruction, 54.7 percent scored at the sixth grade level or above. 32 percent of those who retook the exam after 90 days of instruction scored at the sixth grade level or higher.[10] Not all inmates retake the test. 1,228 inmates retook the test during 1990. Of these, fewer than half scored at or above the sixth grade level. PX 126, supra, TRENDS AND ISSUES 91, p. 110.
29. Dr. Joanne Carlisle, a professor in the Department of Communications Sciences and Disorders at Northwestern University, testified as a literacy expert. Professor Carlisle graduated from Vassar College with a degree in English. She has a master's degree in educational psychology with a specialization in special education and learning disabilities, and a Ph.D. in learning disabilities from the University of Connecticut.
30. Dr. Carlisle testified that it was unlikely that a person who tested below the sixth grade in reading ability would undergo a significant overall change in reading ability in a 90-day reading course. The report of the Illinois Criminal Justice Information Authority, PX 126, TRENDS AND ISSUES 91, supports this opinion. That report noted that more inmates retaking the TABE after 45 days received scores of sixth grade or higher than those taking the test after 90 days and concluded that the first group might have come close to passing the first time, whereas inmates remaining in the program for the full 90 days might have had more serious deficiencies. Id. at 110.[11]
31. Dr. Carlisle testified that a person's reading ability is measured by the level of difficulty of text that he can read. The difficulty of a passage is a function of several variables. Among those variables is the vocabulary used, the grammatical structure of the passage and the knowledge base required to understand the passage. Dr. Carlisle testified that, in order to advance beyond a functional literacy stage, a reader must have acquired critical reading skills, such as the ability to evaluate text, interpret text, make inferences on the basis of statement in text, and draw conclusions from information in text. These critical reading skills generally begin to appear as individuals develop high school level reading skills.
32. Dr. Carlisle testified that there are various, well-accepted formulas that are accurate for establishing the readability of text. The readability, or difficulty, of text is identified by assigning it a grade level. For example, text that has a third grade difficulty is text that an average third grader could understand.
*205 33. A driver's manual would often be written at about a sixth grade level, as would easier articles in magazines such as Reader's Digest. Most magazines are written at about a tenth or eleventh grade level. The NEW YORK TIMES and other nationally-ranked newspapers are written at about an eleventh grade level, while most local newspapers are written at a lower level.
34. Dr. Carlisle used the Fry, Dale-Chall and Raygor formulas to perform a readability analysis on several items of legal material that inmates would typically use in attempting to access the courts: the section of the Illinois statutes that relates to post-conviction remedies; Rule 8 of the FEDERAL RULES OF CIVIL PROCEDURE; excerpts from Bounds v. Smith, supra; Duckworth v. Franzen, 780 F.2d 645 (7th Cir.1985); and the PRISONER'S SELF-HELP LITIGATION MANUAL. All of the passages analyzed required at least an eleventh grade reading ability and some of the tested passages required a college graduate reading ability. For example, the headnote summary of Duckworth v. Franzen required graduate level reading ability. The fact section of that case required an eleventh grade level. The Illinois statute dealing with post-conviction hearings tested at college or post-college graduate level.
35. Dr. Carlisle testified that a person with an eighth grade reading ability and a high degree of motivation might be able to understand the tested materials better than she would normally predict. However, she thought that a person with a sixth grade reading level would be unable to comprehend the materials tested regardless of their level of motivation.[12] She also testified that a person at an eighth grade level of reading ability might think that he understands materials when he does not, or might comprehend only part of material intended for persons at a higher literacy level. In general, it is only at higher literacy levels at the high school level and beyond that people develop critical reading skills, that is, the ability to evaluate and interpret text, and to make inferences and draw conclusions on the basis of statements and information in text.
36. The testimony of several individuals confirmed that literacy levels are a problem in the institutions involved in this case. A paralegal at Dwight, for example, testified that some inmates were unable to understand mailing instructions. An inmate law clerk at Dwight, a defense witness, testified that inmates often did not understand the step-by-step "fill in the blank" instructions and form used to file a Section 1983 action in federal court. She also testified that some of the inmates did not even have the capacity to understand a form requesting appointment of counsel.
37. Dr. Carlisle's analysis is consistent with the testimony of many of the inmates who were confined to segregation. Those inmates testified that, when they were given cases by inmate clerks, they could read the words, but they were unable to determine how these cases applied to their situations or how they could be used to present a claim to the courts.
38. Finally, virtually every inmate clerk who testified at trial stated that inmates in segregation regularly requested their assistance for such easy tasks as filing a grievance or completing some of the simpler forms available in the library. Many of the clerks testified that some of the inmates in segregation could not even fill out the straightforward request forms (e.g., DX 37) to request supplies or copies and that the inmate clerks had to complete these forms for them.
39. Based on my analysis of the expert testimony and the testimony of the civilian DOC employees and inmates, I conclude that the average inmate in segregation is unable to make meaningful use of the typical reported *206 court opinion and would have great difficulty making meaningful use of the PRISONER'S SELF-HELP LITIGATION MANUAL without assistance. Furthermore, plaintiffs have shown that at least one third of the inmates in segregation those reading at the sixth grade level or below and many of those reading at the eighth grade level would be unable to obtain meaningful access to the courts without assistance.
Inmate Clerk Training
40. In the months immediately preceding commencement of the first trial of this case, defendants contacted Dr. Thomas Eimermann, who had founded the Paralegal Training Program at Illinois State University. Defendants contracted with Dr. Eimermann to prepare a curriculum which would be used in the maximum security institutions to train inmates to become inmate clerks. Dr. Eimermann prepared a curriculum consisting of 48 sessions covering a wide variety of topics ranging from the basics of legal research to constitutional law, prisoners' rights, torts, and other topics.
41. Defendants subsequently hired and placed paralegals at each of the institutions involved in this case and had them teach Dr. Eimermann's course to inmate law clerks.
42. Many of the inmates who graduated from Dr. Eimermann's course did not work as clerks. In some instances, inmates took the course without any intention of working as a clerk but were concerned solely with obtaining assistance for their own personal cases. Thea Chesley, the Department of Corrections official who had overall responsibility for the law libraries, also advised Dr. Eimermann that an inmate clerk's pay was too low in comparison with other jobs available to inmates and that many inmates therefore chose other jobs, even after completing the course. In other cases, inmates were transferred to another institution before they were able to begin work (or, in some cases, before finishing the course).
43. Dr. Eimermann's consulting contract with the DOC terminated in July, 1989. At about that time, the DOC transferred responsibility for the ongoing training of inmate clerks from DOC personnel to local junior colleges.
44. Although the evidence was inconclusive, it appears that the junior college teachers were sometimes provided with a copy of the Eimermann curriculum but followed only part of his outline. The course omitted, at least sometimes, segments specifically targeted at inmates' rights and the administrative and due process procedures available to inmates to challenge disciplinary proceedings and other violations of their rights.
45. Defendants did not call as witnesses any teachers or inmates who either were currently enrolled in or had completed the course. The only instructor in the college courses to testify, James Barford, testified that inmates, after completing the course, could not reasonably advise inmates in segregation of their legal options.
46. Defendants have not provided any ongoing training for inmate clerks. As discussed below, defendants have not required law clerks to take or pass any course before undertaking the duties of a law clerk.[13]
Changes Made During Trial
47. During or immediately before trial, defendants instituted numerous changes, in particular, hiring numerous additional law clerks. The changes made by defendants under these circumstances can be given little weight, especially in light of the fact that this case had been pending for several years before trial and the fact that Bounds had explicitly required defendants to provide assistance in lieu of direct access to a law library more than one decade earlier. It seems clear that many changes were made by defendants solely to improve the trial record. Having heard the evidence, I find that there is no reason to believe that any improvement made by defendants under these circumstances will not be changed back after this case is closed. See, e.g., Gluth v. Kangas, 951 F.2d 1504, 1507 (9th Cir.1991). *207 It "cannot be said `with assurance' that there is no `reasonable expectation' that the alleged violations will recur." Id. (quoting from Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854 (9th Cir.1985)).
Credibility
48. My conclusions with respect to plaintiffs' access to the courts at each of these institutions are based in part on my judgments of the credibility of various witnesses. There were too many witnesses over the course of the long trial in this case for me to comment on the credibility of each witness. I have, however, considered the credibility of every witness in reaching my conclusions.
Joliet Correctional Center
General Background
49. There are 1350 inmates at Joliet Correctional Center ("Joliet"). Approximately 90 to 100 of these inmates are housed in two segregation units. The North segregation unit is located in a free-standing building. The building has two floors, each of which contains ten cells. Some of the inmates are double-celled; accordingly, the unit holds between 20 and 30 inmates.
50. The doors on segregation cells in the North unit are made of solid steel. Near the top of the doors is a six-inch viewing panel. Within the viewing panel is a mesh voice panel through which the inmate can communicate with someone outside the cell. In the middle of the door is a 14" by 8" hinged opening referred to as a chuckhole, which is kept locked. Legal materials, food and other items can be passed through the chuckhole when a lieutenant is present to unlock it. There is a ventilation panel near the bottom of the door. When a lieutenant is not present, the law clerks pass legal materials into the cell through the one-inch gap at the bottom of the door, if the materials are small enough.
51. The West segregation unit is housed in the West cellhouse. There are 40 double cells in the unit, two of which are used for showers and one of which is used for medical examinations. The cell doors in West segregation are made of steel bars and it is possible to pass items back and forth between the bars. There are approximately 60 to 70 inmates housed in the West segregation unit.
52. The segregation inmates are not allowed to participate in educational courses, to go to the library, or to check out law books from the law library.[14] They eat and shower on the unit. When a segregation inmate is transported from the segregation unit to the health care unit or the visiting room, he is shackled and wears a waist belt that allows the escorting correctional officer to control his movements. Segregation prisoners are always escorted on and off the unit by security officers one-on-one.
53. To transport a segregation inmate to the library, a security officer would have to restrain the inmate as described above and bring him to the library. The library is not designed to confine and restrict movement as is the segregation unit. There is one study cell in the library that is not used.
54. From July 13, 1991 through August 11, 1991, Joliet was on lockdown and no inmate law clerks went to the segregation unit.
The Law Library
55. The law library subscribes to all of the essential state and federal statutes and case reporters. It contains digests, form books, legal treatises, and legal encyclopedias and dictionaries. Missing volumes, however, are replaced only once a year. Chapter 38 of the Illinois Statutes, which contains the Criminal Code, and the volume containing 42 U.S.C. § 1983 are lost or stolen every year. Copies of material from missing volumes can be obtained by an interlibrary loan from the DOC's School District Library Services. It takes approximately ten days from the time the Joliet librarian makes a request to obtain the materials.
56. The library keeps many legal forms available for use by inmates. Examples include forms for Section 1983 complaints, petitions for habeas corpus, petitions for executive clemency and motions for a new trial. A list of the forms is available in the library. *208 However, this list was compiled only two months before the trial of this case began, and it is not clear that the list is given to segregation inmates. If it is, it is provided only on request. It is not clear whether inmates are informed of the existence of such a list unless they ask.
57. The library makes available an "appeal package" that contains a notice of appeal, an affidavit of service, a certificate of service and mailing, a motion for appointment of counsel, and a motion to proceed in forma pauperis.
58. The library also keeps a list of all of the titles maintained in the legal collection. However, there was no testimony that this list is distributed to segregation inmates by request or as a matter of course.
Civilian Librarian
59. Suluha Swati Wagh was the librarian at Joliet from May 8, 1988 until early 1992.[15] Ms. Wagh graduated from the University of Alabama in 1988 with a master's degree in library science. Her only legal training consists of a course in government documents and two legal training seminars offered by the DOC.
60. Ms. Wagh had supervisory authority over the entire library, including the law clerks. When there was no paralegal, Ms. Wagh checked the law clerks' work to ensure that it matched the segregation inmates' requests.
61. Ms. Wagh testified that she was not trained to and did not give legal advice. She testified that she relied upon the law clerks to give legal advice.
Civilian Paralegal
62. Over the last few years, Joliet has had difficulty in keeping the civilian paralegal position filled.[16] In 1990, the paralegal was Ms. Wolstein. Ms. Wolstein resigned in December, 1991, after she was threatened with physical harm by a segregation inmate. On February 26, 1992, she was replaced by Derrick Johnson, who quit two or three weeks later. In April, 1992, Julie Terlep, who had recently been hired as the paralegal at Dwight, was temporarily assigned to Joliet. Ms. Terlep was replaced with Patty Torres, who became the paralegal near the end of trial.[17]
Inmate Law Clerks
63. During part of the trial in this case, Joliet had one inmate law clerk.[18] The law clerk, Raymond Green, has a GED certificate and takes college courses as an inmate from Lewis University. A second inmate law clerk, James Newsome, was terminated from this job after three weeks. An assistant warden testified that Joliet planned to hire more law clerks, but she did not know when. The law clerk or clerks serve 1,350 inmates.
64. Joliet does not require that the inmate law clerks pass the Paralegalism I and II courses taught by Lewis University before they are hired. Inmate clerk Zavorski was put to work without receiving any legal training. Mr. Zavorski worked as a law clerk for six months in 1990. He testified that, when he started working as a law clerk, he was given no guidance on how to assist the inmates and no criteria as to the kinds of cases on which he should help. An experienced clerk was not assigned to give him assistance or instruction.
65. Some law clerks attended the paralegalism training course prior to or during their employment as law clerks. One such clerk was Wilbert Blanch. Although Mr. *209 Blanch had passed both Paralegalism I and II, Ms. Wagh terminated him soon after he was hired because he was unable even to read a legal citation.
66. Lewis University's "Site Coordinator" at Joliet, Nathaniel Richards, is responsible for the college academic programs at Joliet. He was not familiar with Dr. Eimermann's course outline, which the courses were supposed to follow. He testified that the course actually taught did not include prisoners' rights in its syllabus.
67. When there was more than one law clerk and library staff, the law clerk would visit the segregation wings accompanied by the paralegal or librarian at 1:00 p.m. on Mondays, Wednesdays and Fridays. He would return to the library, which closes between 2:30 and 2:45 p.m., at approximately 2:30 p.m. On Tuesdays and Thursdays, the law clerk was scheduled to fill segregation requests. However, inmates from the East cellhouse have access to the library during that time and require assistance.
68. Ms. Wagh testified that she directed inmate law clerks to give priority to the segregation inmates' needs. She also testified that the law clerks had four hours per day, four days per week, to work on the segregation requests.[19] It is clear that, even when there was more than one law clerk, the law clerks did not have four hours per day to devote to the segregation inmates' needs. Even if Ms. Wagh did instruct the law clerks to give priority to segregation inmates[20], the reality is that while the clerks are in the library there are always other inmates using the facilities and seeking assistance from the few available law clerks.
69. When the law clerk is on the segregation unit, he distributes and collects legal request forms and delivers previously requested materials. Mr. Zavorski testified that, as a law clerk, he would stop and try to answer inmates' questions verbally while he was collecting their request forms. However, because of time constraints, Mr. Zavorski was usually only able to get halfway down the line of cells before he was forced to leave the unit. Mr. Zavorski stated that the officers required the law clerk to be off the unit during shift change, which occurred between 2:30 p.m. and 3:00 p.m. He also testified that he had complained that he was not given enough time on the unit to see all those who needed help and that he requested permission to go to the segregation unit earlier, but the schedule was not changed.
70. When visiting the segregation unit, the law clerk does not have time for in-depth interviews with inmates that would enable him to prepare substantive legal documents such as complaints or petitions. In addition, a prison officer is often nearby, thus making the transmission of any confidential information difficult.
71. Edna Lee, Assistant Warden of Programs at Joliet, testified that, if a segregation inmate informed a librarian or paralegal that he had violated a prison rule, the librarian or paralegal would have to report what the inmate said in a disciplinary ticket.
72. The ability of segregation inmates to communicate with the law clerk is further hampered by the generally loud noise conditions on the segregation unit. In the West segregation unit, this is particularly a problem because the doors are barred and the noise from the inmates and their radios and televisions make it difficult to hear.
73. A segregation inmate can receive photocopies of any material in the library for five cents per page. If an inmate has no money in his trust account, he is provided copies of the requested material and his account is debited when he has the money. If an inmate returns copies of cases, he is not charged. However, in order to see a case, an inmate must first sign a voucher authorizing payment from his inmate account.
74. Mr. Zavorski testified that, as a law clerk, he did not draft any Section 1983 complaints, habeas corpus petitions, postconviction *210 complaints, or any pleadings for any inmate in segregation because he did not know how to draft these documents. Mr. Green testified that, during his three stints as a law clerk, he received many requests for drafting assistance but had also never drafted pleadings because he did not have enough time to do so. This testimony is supported by the evidence. The request forms for legal assistance used at Joliet do not include a space where substantive legal assistance might be requested, and my own review of the library's responses to requests over a three-year period did not indicate that any drafting assistance was provided. In addition, the sheer volume of requests for materials and the paucity of law clerks and other staff would not have allowed even an accomplished attorney to write briefs or draft materials in the available time.
75. Defendants claim that they rely on volunteers and "jailhouse lawyers," i.e., inmates who are not law clerks, to supplement their system of law clerk assistance. I found no credible evidence that any other inmate provided assistance to prisoners in segregation or otherwise. In addition, a regular inmate is not allowed to go to segregation to discuss a segregation inmate's legal problems.
Pontiac Correctional Center
General Background
76. Pontiac Correctional Center ("Pontiac") is a maximum security institution operated by the Illinois DOC, located in Pontiac, Illinois. There were approximately 1,930 inmates at Pontiac at the time of the trial. There are approximately 265 inmates in segregation at Pontiac at any given time.
Pontiac Law Library
77. Segregation inmates at Pontiac are not permitted to go to the law library or even to borrow books from the law library. The Pontiac law library contains a single study cage, but inmates from segregation are not allowed to use it.
78. The Pontiac library contains neither the official nor the annotated version of the UNITED STATES CODE covering 42 U.S.C. § 1983 (although the statute is included in the PRISONERS' SELF-HELP LITIGATION MANUAL).
Civilian Librarian and Paralegals
79. Pontiac has one librarian, Malini Patel. The record contains no information about her, other than the fact that she supervises the paralegals. She apparently had no involvement with segregation inmates. She did not testify.
80. At the time the trial of this case began, a single civilian paralegal, John Holmes, served the Pontiac law library. In addition to his responsibilities at the maximum security prison, Mr. Holmes spent part of his time operating the law library at the medium security institution in Pontiac, Illinois,[21] which has a separate library.
81. Mr. Holmes did not have a college degree. He completed a paralegal course sponsored by Carthage College of Kenosha, Wisconsin in the summer of 1987. This course met for approximately 72 hours and covered a wide variety of topics. Mr. Holmes did not take any tests prior to being hired. The DOC relied entirely upon the "certificate of completion" awarded by Carthage College. Mr. Holmes was hired as a paralegal in 1987. Prior to that time, he had worked in a variety of jobs, none of which were in any way related to the law. Mr. Holmes received no training in areas of particular interest to prison inmates such as habeas corpus petitions, post-conviction remedies, Section 1983 civil rights suits, or related areas.
82. Mr. Holmes understood that he was prohibited from giving legal advice because he was not a lawyer. He understood that his responsibilities were limited to advising inmates as to basic procedural issues such as the number of copies that had to be filed with the court, the address of the clerk of the court, and the correct form or format in which a pleading should be filed.
*211 83. At the time Mr. Holmes began working at Pontiac in 1987, he was employed by the Cornbelt Library System, which had a contract to operate the law library on behalf of the DOC. On June 30, 1989, the DOC assumed the direct operation of the law library and became Mr. Holmes' employer.
84. Mr. Holmes was generally responsible for supervising the inmate law clerks. In addition, he had responsibility for directly servicing the condemned unit, processing all books received by the library, ordering and inserting pocket parts, updating periodicals, and all of the other recordkeeping and filing for the law library.
85. Mr. Holmes did not have the time to supervise the actual legal work done by the inmate law clerks. He did not know which cases any individual law clerk was working on.
86. Mr. Holmes had no opportunity to pursue his own continuing education, nor did he have any opportunity to deal with outside groups which provide assistance to inmates.
87. After the trial began in this case, defendants hired a second paralegal, Joni Stahlman, to serve the inmates in the maximum security prison at Pontiac. The written job description for Ms. Stahlman's position states that a paralegal's job does not include drafting legal documents, representing inmates, or conducting research on behalf of inmates.
88. Although the written job description requires Ms. Stahlman to provide workshops for inmates, she had never conducted any such workshops at the time of the trial. Ms. Stahlman said that she had requested that workshops be provided in which attorneys would come in and teach inmate law clerks about research, but her superiors had not approved any such workshops.
89. Ms. Stahlman, like Mr. Holmes, believed that, as a paralegal, she was not permitted to give legal advice. She also testified that the inmate clerks often know more about prisoner-related issues than she, and that, therefore, she could not meaningfully review the substance of their work. She also discourages the inmate clerks from giving legal advice because she is concerned that they are not lawyers and therefore might give incorrect advice on constitutional and other issues.
90. Ms. Stahlman did not serve the segregation inmates and had never been on the segregation unit.
91. The civilian paralegals can give only very limited assistance to either inmates or inmate clerks. For example, Ms. Stahlman testified that one of the Pontiac library forms is a "criminal complaint." Ms. Stahlman did not know whether an inmate could initiate a criminal action in this manner. Similarly, Ms. Stahlman did not know what appeal rights an inmate might have from a finding of guilty on charges contained in a prison disciplinary ticket.[22]
92. Ms. Stahlman had not reviewed all of the legal forms in the Pontiac library that are given to inmates. She reviewed some of them with a DOC attorney who told her that the forms did not need to be changed.
93. The law library keeps a list of attorneys, which is given to inmates. The law library does not keep a record of referrals to attorneys, and Ms. Stahlman said that she does not know whether any attorney on that list had ever taken a case from an inmate at Pontiac.
Inmate Law Clerks
94. In the time leading up to the trial of this case, there had been four law clerks at Pontiac, although sometimes there were only three. According to Mr. Holmes, the paralegal, *212 three clerks were not adequate to serve the legal demands placed on the law library by the 1,930 inmates at Pontiac. As a result, Mr. Holmes had been requesting permission for many months to hire additional clerks. Six weeks before the trial of this case began, defendants assigned six additional inmate clerks to the Pontiac law library.
95. There is generally a high turnover of clerks at Pontiac. As of December, 1991, only one of the nine clerks assigned to the law library, Clayton Rockman, had more than two years of experience.
96. John Reese, a Pontiac inmate, was assigned as the segregation librarian from 1985 through August, 1988. As a segregation librarian, he helped distribute general library reading materials. He did not have responsibility for providing legal assistance or legal materials to inmates in segregation.
97. During this three-year period, there were from 250 to 265 men in segregation. More than half of those seen by Mr. Reese at one time or another asked him for legal assistance, even though providing legal assistance was not one of his responsibilities.
98. Mr. Reese later began working as an "unofficial jailhouse lawyer." (Mr. Reese has a bachelor's degree in criminal justice.) In October, 1988, Mr. Reese received a disciplinary ticket and was charged with having contraband in his cell. This "contraband" consisted of law books (Illinois and Federal Codes of Civil Procedure) and typing supplies.
99. In November, 1989, Mr. Reese received another disciplinary ticket for providing legal assistance to other inmates. He admitted that he gave such help and was found guilty by the Adjustment Committee.
100. In April, 1990, Mr. Reese applied for the position of law clerk at the Pontiac library. He was interviewed by Mr. Maus, the supervisor in charge of all library operations at Pontiac. At the interview, Mr. Maus informed Mr. Reese that he would be assigned to the library only if he refrained from filing any lawsuits against the Pontiac Correctional Center for 90 days.
101. In August, 1990, Captain Skidmore, the DOC official responsible for the supervision of the segregation unit, advised Mr. Reese that he could no longer speak to inmates who requested his assistance in segregation; he was only to deliver documents to those inmates who had submitted written requests to the library for assistance.
Inmate Clerk Training
102. Mr. Holmes began teaching a paralegal course based on the Eimermann model to inmate clerks in January, 1988. Responsibility for teaching the inmate paralegal course was later transferred to McMurray College. McMurray College has held two different sessions of courses known as "Paralegal I" and "Paralegal II."
103. Mark Barford, a licensed attorney, taught the paralegal course at Pontiac from January, 1992 to May, 1992. Mr. Barford testified that he did not follow the Eimermann course outline because he found the material to be too difficult for his students. The course was scheduled to meet from 6:00 p.m. to 9:00 p.m. twice per week. In fact, many of the classes were cancelled due to lockdowns and the students regularly came to the class late, which substantially reduced the time during which the course could be taught. Mr. Barford testified that the two courses he taught were not sufficient to teach a law clerk how to file a Section 1983 civil rights case, a mandamus case, or a petition for post-conviction relief.[23]
104. Mr. Barford's ability to teach the course was hampered by DOC representatives. During the session, Mr. Barford attempted to teach the inmates about the various aspects of Section 1983 litigation by using as an example a grievance regarding tuberculosis which had been filed by some of the inmates in the class. Within a week of giving students an assignment based on this example, Mr. Barford was advised by Mr. Maus that the assignment created a "security *213 problem" and was ordered to terminate the assignment.
105. There is no ongoing in-service training provided for inmate clerks. Whatever training they receive after they are hired is through on-the-job experience.
Service to Inmates in Segregation
106. Inmates in segregation cannot go to the law library. Therefore, their only means of access to legal assistance is through the periodic visits of the inmate clerks to the segregation unit.
107. Prior to the hiring of six additional inmate clerks six weeks before the trial began, the clerks were supposed to go to the segregation unit three times per week. However, the library was unable to maintain any set schedule for servicing the segregation unit. Mr. Holmes, the paralegal, directed the clerks to go to segregation as often as possible. One of the inmate law clerks, Mr. Rockman, testified that the duties of the three law clerks included assisting general population inmates with their legal needs, going to the condemned unit, the protective custody unit, and both segregation units.
108. Pontiac failed to maintain any procedure for clerks or civilian personnel to sign in and out of the segregation unit. Therefore, it is impossible to determine with any precision the regularity with which library personnel actually went to segregation prior to September, 1991, when Pontiac began to keep more accurate records. DOC records for that month indicate that only one inmate law clerk went to segregation, and he only a total of five times, during the month.
109. After the assignment of six new clerks shortly before trial, Mr. Holmes requested that five of the inmate clerks be permitted to service segregation. The assistant warden responsible for programs at Pontiac refused permission.
110. Mr. Rockman is one of the three inmate clerks responsible for serving the segregation unit. When Mr. Rockman visits the segregation unit, he is subject to either a pat-down or strip-search.[24] Warden Gramley testified that inmates going into segregation are supposed to be subjected to a strip-search either when entering or leaving the unit in order to discourage the introduction of contraband.[25]
111. In addition to a search of the inmate clerk, the officer on duty reviews the materials the inmate clerk is bringing into the segregation unit. At least one of the officers, Officer Eddleman, not only reviews the material for contraband but reads each document and makes his own determination as to whether the document is in fact a "legal" document. Any document which Mr. Eddleman determines, in his own judgment, is not a legal document, is taken from Mr. Rockman and given to the captain of the segregation unit. Although defendants agreed that the officer searching the inmate is not supposed to read each page, defendants did not rebut Mr. Rockman's testimony regarding Officer Eddleman's review of materials.
112. After entering the unit, the inmate clerk walks down one of the galleries in the unit. In order to reduce the number of inmates who request assistance, Mr. Rockman does not announce or otherwise advise inmates that a clerk is present. He delivers material to individual inmates who previously have filed requests, and stops to talk with those inmates requesting assistance that he has time to see.
113. Of the 50 inmates on each gallery, Mr. Rockman sees approximately 10 to 15 inmates on each visit. On a typical visit, Mr. Rockman receives five to ten requests from segregation inmates to which he is unable to respond.
114. The Pontiac paralegals and law clerks do not keep records of requests for substantive assistance. There are no procedures or criteria governing which inmates will be given substantive assistance. Mr. Holmes testified that the decision of whether or not an inmate clerk will help an individual inmate in segregation is left to the clerk. It was also clear from Ms. Stahlman's testimony *214 that she had no idea what, if anything, any law clerk was working on.
115. A number of inmates have advised the law library that they are functionally illiterate, and, therefore, unable to perform any research or writing on their own. Mr. Holmes has sometimes verified their functional illiteracy. Mr. Holmes has no reason to disbelieve the inmates' statements in other cases.[26]
116. At the time he testified, Mr. Rockman was working on substantive matters for five inmates. Mr. Rockman does not respond to all of the requests he receives from inmates in segregation because there are many more requests than he has time to process. In order to provide additional assistance to inmates in segregation, Mr. Rockman uses four "writ writers" inmates in segregation who have some legal experience. However, even with this additional help, Mr. Rockman testified that he cannot begin to meet the demand by inmates in segregation for legal assistance.
Lockdowns
117. During a lockdown, inmate clerks are not permitted to go to the library or to the segregation units. The inmate clerks are permitted to do some legal work in their cells; however, Mr. Holmes testified that their ability to perform meaningful work is "greatly hampered" during a lockdown. There have been a minimum of 15 lockdowns in the last four years at Pontiac. The shortest of these lockdowns has been two days, and the longest has lasted in excess of one month. During a lockdown, Mr. Holmes and the other library personnel attempt to provide service to inmates in segregation. However, the civilian personnel must provide legal services to the entire population of Pontiac. As a result, their assistance is limited to distributing forms requesting extensions of time. Mr. Holmes testified that he did not have time to help the inmates complete these forms.
Miscellaneous
118. No outside agency is available to the inmates at Pontiac to provide substantive help. Although Ms. Stahlman indicated that she could call Prairie State Legal Services for assistance, she could cite only one example involving a divorce matter where she had actually called for information. Ms. Stahlman testified that Prairie State Legal Services did not take any cases for inmates.
Menard Correctional Center
General
119. Menard Correctional Center ("Menard") is the largest maximum security prison in Illinois. There are 2,400 inmates at Menard. Seventy-eight percent of the inmates have been convicted of murder, Class X, or Class 1 offenses.
120. Although Menard has more inmates than any other Illinois maximum security facility, it has fewer staff members. There are five or six correctional officers for every 300 inmates. Many of the inmates are violent.
Segregation
121. There were 270 inmates in the segregation unit at Menard in April, 1992. On occasion, there have been 300 or more inmates in segregation. The segregation unit includes 100 double cells; the remainder are single cells. Most have bars in front, but 55 cells have solid doors, some with plexiglass view panels. A segregation cell is 4½ feet by 10½ feet, with a bed, sink, toilet, and light.
122. Segregation inmates are prohibited from participating in prison programs. Segregation inmates are brought to the showers in shifts during the course of the day, and to the yard three times per week for two hours.
123. The segregation unit has a higher incidence of serious and violent behavior problems than the other units. Therefore, it is more difficult to maintain safety and order with respect to inmates confined in segregation. Nonetheless, defendants escort inmates out of the segregation unit to the *215 health care unit daily as well as to the grievance committee and the administrative review board.
124. Segregation inmates are also escorted out of the segregation unit for personal and legal visits. There are small rooms available for attorneys to visit with inmates. The correctional officer escorts the inmate, waits, and returns him to his cell.
125. A segregation inmate is permitted one telephone call per month. In addition, he is permitted to call an attorney if he can verify that he has an attorney; otherwise, permission to call an attorney is discretionary with the correctional officer.
Access to Legal Services
126. Menard has a law library with a collection that plaintiffs agree is adequate.[27] When fully-staffed, the library employs a library associate, who performs the functions of a librarian; a paralegal; and a library assistant. At the time of the trial, the library associate at Menard was Leanne Pate. She has a bachelor's degree in history with a minor in library science. Her responsibility is to oversee the library, which houses both a general collection and a law library. In the absence of a paralegal, she provides direct supervision of the law library. There was no testimony to indicate that she had any legal training. A library assistant works under both Ms. Pate and the paralegal, performing such functions as making up lists of segregation inmates who can come to the library, notarizing documents, and delivering supplies to cells.
127. The law library contains five study cells for segregation inmates. A segregation inmate must make a request in order to be allowed to visit the library. Library visiting hours for segregation inmates are 8:00 a.m. to 10:00 a.m. and 11:00 a.m. to 1:00 p.m., four days per week.[28] (Shortly before the trial began in this case, an additional period was added one day per week.) Testimony indicated that, in practice, inmates did not have two full hours in the library and could have as little as one hour. Because more persons want to visit the library than can be accommodated, each inmate requesting time is allowed to go only once per day. Those with verified court deadlines have priority, but because these would be the only inmates who would be able to visit the library if they used all of the allowable time slots, inmates with verified deadlines are only given a certain portion of the five spots available in any time slot. An inmate may sometimes have to wait weeks to get to the library if he does not have a court deadline. (In at least one case documented by the DOC, an inmate could not visit the library until two months after making his request.) While a person with a deadline may be able to go to the library several times in one week, others will go only once.
128. Once a segregation inmate arrives at the Menard law library, he is placed in one of the five study cells in a room separate from the rest of the library. He must rely upon an inmate law clerk to receive materials. Inmates sometimes have difficulty in obtaining materials because the law clerk is too busy to fill requests.[29] The evidence was disputed as to whether segregation inmates have access to a library list of available forms and books.[30]
*216 129. Segregation inmates are not allowed to take books out of the library. The library also does not allow inmates to borrow copies of court opinions.
Inmate Clerks
130. Apart from scheduled time in study cells in the library, segregation inmates at Menard have contact with the library through inmate clerks who visit segregation.[31] However, until the time of the trial, only one law clerk had been assigned to segregation inmates. During the trial, Menard assigned a second law clerk to the segregation unit. These law clerks were scheduled to go to the segregation unit four times a week for two hours.[32] In the segregation unit, the clerk takes requests for forms, materials and paper, which are filled by the library. The clerks do not attempt to interview inmates because of noise and other distractions on the segregation unit.[33]
131. At the time of the trial, there were five inmate law clerks at Menard to serve the entire prison population, apart from those prisoners in protective custody. Until the trial, there were only three prisoner law clerks to serve the entire prison population. Thea Chesley, the DOC Library Services Coordinator, testified that Menard should have between 10 and 20 clerks to properly serve the needs of all inmates. The evidence indicated that 10 clerks would be insufficient.
132. The inmate law clerks are paid between $20 and $45 per month. At the time of trial, most received $20 per month.
133. Ms. Pate, the library associate, testified that, beginning in the fall of 1991, she required inmates to pass a "law skills" test written by a paralegal in order to become law clerks.[34] Law clerks are supposed to take the paralegalism course discussed earlier in this opinion. As was the case elsewhere, the actual course taught did not cover all of the topics needed. Topics not covered in one session included prisoners' rights and habeas corpus petitions. At least two of the three law clerks at the time of the trial who went to segregation or were assigned the segregation cells in the library had not yet taken a paralegal course. The other clerk assigned to segregation finished the course during the trial.
*217 134. The orientation manual distributed to inmates at Menard says that inmate law clerks should get inmates started on their legal research but that the clerks will not draft documents or conduct actual research. At the time of the trial, it appeared that this policy was not enforced. Nevertheless, there was little evidence that law clerks prepared petitions, complaints or other legal papers for inmates other than themselves. Although Ms. Pate and Mr. Chappell both testified that law clerks told them that they were doing work for inmates, neither identified any work that they had seen, and both indicated they never reviewed any such work. One inmate law clerk testified that he had not filed a habeas petition on his own behalf because he did not know how to file a petition. There was evidence that, at times, law clerks did prepare legal papers for inmates other than themselves and charged them for their services.[35] There was also evidence that inmate law clerks do not hold in confidence information given to them by other inmates.
135. Even if the inmate law clerks are willing to work on petitions for prisoners other than themselves, the small number of clerks for the prison population and the other work required of them would prevent them from doing so. The duties of the inmate law clerks[36] include updating legal materials, requesting photocopies and examining photocopies when made, going to segregation to take requests and bring materials, helping inmates in the library with citations and requests for materials, and attending the "paralegalism" class when enrolled in the course. All of these duties must be carried out by five clerks (not including the two clerks whose duties were to serve protective custody inmates) for a prison population of 2,400 inmates, including between 270 and 300 inmates in segregation at any one time.
136. Defendants relied on the experience of one law clerk, Arthur Rico Stringer.[37] Mr. Stringer has been in the system for many years and had been a law clerk at several institutions at various times since 1975. However, despite his attempts to become a law clerk at Menard, he was hired only a few weeks before the trial. He was not one of the clerks who visited segregation.[38] In addition, the fact that Mr. Stringer's duties began only with the trial of this case fails to account for the many years before trial.
Paralegal
137. The inmate law clerks work under the direction of the library's paralegal, when one is employed. During 1990 and early 1991, for a period of eight or nine months, Menard did not have a paralegal.[39] In 1991, Gene Chappell was hired as Menard's paralegal. He quit shortly after testifying in April, 1992. There was testimony that, at least by July, 1992, he had not yet been replaced.
138. From the testimony of both Mr. Chappell and inmates, it is apparent that, in practice, the inmate clerks receive essentially no supervision with respect to their work. For instance, Mr. Chappell testified that he cannot, and does not, give legal advice, or *218 advice as to legal strategy.[40] He was not allowed to draft pleadings and did not conduct research. He testified that he was prohibited from performing either of these activities both by his job description and by his understanding of the legal and ethical limitations on what a paralegal may do.
139. Apparently Mr. Chappell would have been unable to provide much supervision even if he chose to get involved. He did not know whether the forms provided by the library met the filing requirements for the various federal courts in Illinois, did not know whether the post-conviction relief form introduced in court was the same form distributed by his library, did not know whether there was a new sentencing code, and did not appear to understand the post-conviction petition. Mr. Chappell stated that he never told inmates whether a requested form was the correct form to use for a particular action. He did not even know who drafted the forms distributed by his library, although he thought that they had been prepared by inmate law clerks.
140. Mr. Chappell also testified that, if an inmate, in asking him for advice, told him that the inmate had broken a rule, he would be required to document the infraction and report it.
Photocopy Policy
141. Inmates may purchase photocopies of documents at five cents per page. If an inmate does not have the money, it is charged to his account. At the time of trial, the library had a posted policy that allowed inmates to have photocopied only five cases per week. This policy had been in effect for about 18 months at the time of trial.[41] The library associate, Ms. Pate, testified that the library will relax the policy if an inmate shows that he needs more cases copied and the library is not too busy.
Dwight Correctional Center
General
142. Dwight Correctional Center ("Dwight") is the DOC's reception and classification center for female offenders. It houses minimum, medium and maximum security inmates.[42] It also has a condemned unit and the mental health facility for female offenders in Illinois. Approximately 662 prisoners are incarcerated at Dwight, roughly 20 percent of which are maximum security inmates. There are approximately 200 correctional officers serving in three shifts at the institution.
143. Inmates arriving at Dwight receive an orientation presentation which informs them of the services available at the prison. They do not receive a presentation about the law library, but a prison manual given to each inmate contains a paragraph describing the law library.
Segregation
144. The segregation unit at Dwight is composed of 21 cells. Fourteen cells hold two inmates and seven hold one. At the time of the trial, 29 women were in segregation. As many as 48 women have been in segregation at one time. The average stay in segregation is between 15 and 20 days. However, the assistant warden testified that some inmates have been in segregation for many months. A few inmates have been there for up to one year and at least one woman was in segregation for a longer period. In addition, some inmates are in and out of segregation throughout their sentence.
145. Each segregation cell has a solid door with a food slot that is approximately 12 *219 inches wide and 6 inches high. The door has a plexiglass window, approximately 8 × 8 inches and a perforated speaking panel that allows someone standing in the hallway to communicate with an inmate in the cell.
146. Segregation inmates are allowed out of their cells only for showers, recreation, hearings, medical examinations and for personal visits or visits with attorneys.
147. When an inmate is taken out of her segregation cell, she is handcuffed through the food slot before the door is opened and is then escorted by two officers. Segregation inmates at Dwight are never transported in groups of more than one except when they are taken in a line to the recreation yard which is adjacent to the segregation unit.
148. Segregation inmates are not allowed to go to the law library because of security concerns. Defendants say that two guards would be required to escort inmates to the library. Moreover, both doors of the library would need to be secured and the library would need to be staffed with security officers. The library would also need to be cleared of other inmates to accommodate the segregation inmates. Segregation inmates would have to be brought down a hallway past several classrooms, raising concerns that they would disrupt the educational programs occurring in the building.
Law Library
149. The general library is run on a day-to-day basis by a librarian. The law library is supervised by a paralegal. The paralegal and inmate law clerks are hired by the DOC.
150. The law collection includes all essential state and federal statutes, case reporters, numerous digests, form books, legal treatises, legal encyclopedias, dictionaries and other research tools and secondary authorities. The law library has a budget which is separate from the educational budget and is open-ended for legal updates which West Publishing sends automatically.
151. The law library maintains a list of all of its available resources. Copies of this list are kept in the segregation unit and inmates can obtain a copy by asking the officers. However, there was testimony which indicated that inmates may not know the list is available. The law library also contains several copies of the PRISONERS' SELF-HELP LITIGATION MANUAL. Inmates are allowed to check out this book and segregation inmates may keep this book in their cells.
152. Segregation inmates are not allowed to have typewriters in their cells.[43]
153. The paralegal is responsible for ordering legal materials for the library. Dwight does not have a problem with respect to missing legal materials.
154. The library has civil and criminal legal forms available for inmates to use, including forms for civil rights cases, post-conviction petitions, family law cases and other state and federal cases. The evidence indicated that Nancy Nicklies, the paralegal at Dwight from April, 1987 until February, 1992, attempted to update and correct forms. There was testimony that some forms in the library were of no use, or even harmful. The testimony indicated that forms which could harm an inmate's request concerned custody matters.
Paralegal
155. Nancy Nicklies has a Bachelor of Arts degree in sociology and a certificate from the American Institute for Paralegal Studies. Starting in 1987, Ms. Nicklies taught the inmate law clerks using the Uniform Law Clerk Training Program designed by Dr. Eimermann. She taught the class three times.
156. Julie Terlep replaced Ms. Nicklies as the paralegal at Dwight in February, 1992. She had been a paralegal for six weeks at the time she testified. She has a Bachelor of Arts degree from Eastern Illinois University and a certificate in paralegal studies from the American Institute for Paralegal Studies.
157. The paralegal supervises the inmate law clerks. The paralegal at Dwight at the time the trial began, Ms. Nicklies, reviewed the clerks' projects as they were completed *220 and assisted them when they encountered problems. Although Ms. Nicklies also testified that she could not give legal advice or prepare legal documents because she was not working under the supervision of an attorney, she gave numerous examples of advice that she gave inmates. (Tr. 4132, 4134, 4140.) Her advice seemed appropriate in those examples. Although she is not supervised by an attorney, the evidence indicated that Ms. Nicklies obtained legal advice from an attorney with CLAIM and that she attended legal seminars.
158. The paralegal goes to the segregation unit about once a week and is permitted to visit as often as she wants.
Inmate Law Clerks
159. At the time of trial, there were two inmate law clerks and one trainee. The number of law clerks tends to vary from two to three and there is a fair amount of turnover in the position. The paralegal interviews prospective clerks and makes a recommendation to the Educational Administrator, who then interviews the applicants and makes the final recommendation. The warden gives final approval on recommendations. Each inmate clerk works five days per week from 8:00 a.m. to 3:00 p.m.
160. At the beginning of the trial, the inmate law clerks were Eriabee Chiles and Rochelle Crum. During the course of the trial, Ms. Chiles was transferred to another institution and was replaced by Mary Nelson. Ms. Chiles began taking the Eimermann law clerk training program (which she finished) at the time she began working as a law clerk. She also has a bachelor's degree in sociology from Roosevelt University and attended law school for two months. The record does not include information on Ms. Crum's education. Ms. Nelson had spent two years in college at the University of Minnesota before coming to Dwight.
161. The DOC has a contract with Lewis University to teach Paralegalism I and II, the courses used to train the law clerks. The EIMERMANN UNIFORM LAW CLERK TRAINING BOOK is used. Ms. Nicklies worked with Lewis University to ensure that inmates received adequate library time and appropriate training.
162. Since inmates in segregation are not permitted to go to the library, they are dependent on inmate law clerks and the civilian paralegal. Segregation inmates can request assistance by speaking to the law clerks or paralegal when they are in the unit or they can send a referral to the law library. They can also ask the panel officer to contact the law library.
163. The inmate law clerks are scheduled to visit the segregation unit on Mondays, Tuesdays and Thursdays. They speak to inmates and deliver papers through food slots in the solid doors. When the law clerks enter the segregation unit, they announce their presence.
164. Ms. Nicklies testified that inmates generally draft their own petitions, but the law clerks draft complaints when help is needed. The clerks do not write briefs or memoranda of law. Ms. Nelson, a law clerk, testified that more inmates requested assistance than she was able to help. She also testified that the new paralegal, Ms. Terlep, told her that she could only assist an inmate whose TABE score was below the sixth grade. Ms. Nelson also testified that she requested advice from Ms. Terlep on two occasions because inmates wanted to file a Section 1983 complaint against prison officials, but that Ms. Terlep refused to discuss any suit against a staff member. It appears, however, that these inmates were not in segregation. I also note that Ms. Nelson's testimony includes inconsistencies with other evidence on a number of different issues.[44]
Accordingly, I give it little weight.
165. Plaintiffs assert that the amount of time that the law clerks spend in segregation is so short that adequate legal access could not possibly be provided. However, Ms. Chiles testified that the law clerks may stay on the segregation wing as long as they wish. Furthermore, plaintiffs did not elicit testimony *221 from any inmate which indicated that her communications with a law clerk were cut short because of external time constraints imposed by defendants.[45]
Provision of Legal Materials
166. Most legal materials are not allowed out of the library, but copies are furnished on request at five cents per page.[46] If an inmate has no funds and she has a deadline, copies are furnished at no charge. In addition, the library staff will photocopy any noncirculating materials upon an inmate's request. The inmate can keep the copies as long as she wants and there is no charge for their use if she returns them undamaged. Inmates are also allowed to keep papers and pens in their cells. They can obtain these materials from the commissary or the paralegal will furnish them on request.
167. Some materials are allowed out of the library and in segregation, such as the department rules, Chapter 38, BARRON'S LAW DICTIONARY, the PRISONERS' SELF-HELP LITIGATION MANUAL and another book on prisoner's rights. Ms. Nicklies testified that inmates generally know about the department rules and Chapter 38. She testified that their knowledge about other books is limited. Segregation inmates may obtain a list of books available in the law library by requesting it from officers in the segregation unit. It is not clear, however, that all inmates are aware that the list exists.
168. In addition to being able to ask for copies of specific legal materials that the inmate knows exists, the inmates can present their particular problem to the inmate law clerks. The law clerks will give the inmate books and materials that address the problem.
Additional Sources of Legal Assistance
169. The Legal Assistance for Prisoners Project was started to furnish legal assistance to Dwight inmates. Sally Elison is the only attorney working for the project and she works only half-time. Inmates must fit within very narrow guidelines to be eligible for her services. She helps only inmates who are residents of Chicago, she does not handle criminal matters, and she does not take cases related to conditions of confinement. Ms. Nicklies testified that she understood that the Project is currently out of money.
170. Attorney Gail Smith, the director of Chicago Legal Assistance to Incarcerated Mothers ("CLAIM"), testified that CLAIM provides limited assistance to inmates at Dwight. CLAIM assists only inmates from Cook County and deals only with legal problems related to family law issues. Ms. Smith testified that she is able to help only about one in three inmates requesting assistance because of the organization's limitations. CLAIM often hears from inmates with complaints relating to medical care and other conditions of confinement but does not accept such cases. CLAIM has not been generally successful in referring these women to other agencies or private attorneys.
CONCLUSIONS OF LAW
1. In considering plaintiffs' motion for a preliminary injunction, Judge Moran found that the system utilized by defendants did not allow plaintiffs direct access to law libraries, consisted principally in the utilization of inmate law clerks who acted as "runners" to bring legal materials to inmates in segregation, did not provide adequate training to the law clerks, limited the number of photocopies that an inmate could receive in a year, limited the amount of paper given to inmates, and restricted telephone communications with at *222 torneys. Based on these facts, Judge Moran concluded that plaintiffs had been denied access to the courts required by the U.S. Supreme Court in Bounds v. Smith, supra, 430 U.S. 817, 97 S.Ct. 1491.[47]Walters v. Thompson, 615 F.Supp. 330, 339 (N.D.Ill.1985). In so holding, Judge Moran noted that systems relying entirely on inmate runners had been repeatedly held unconstitutional. Id. In the present case, that system was exacerbated by the other practices alleged to exist.
2. Judge Moran's conclusions were based on affidavits alone. There has now been a lengthy trial and my conclusions necessarily must be based on the facts as found at trial. Nevertheless, the beginning point for analysis now (as on the motion for a preliminary injunction) is Bounds v. Smith, supra. In Bounds, the Supreme Court held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." 430 U.S. at 828, 97 S.Ct. at 1498. The right of access to the courts is embodied in the guarantee of due process because prisoners must "be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights." Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974). Accord, Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974). The Seventh Circuit has noted that the right of access to the courts is the most fundamental right that an inmate holds. DeMallory v. Cullen, 855 F.2d 442, 446 (7th Cir.1988).
3. "[T]he Constitution protects with special solicitude, a prisoner's access to the courts." Davidson v. Scully, 694 F.2d 50, 54 (2d Cir.1982); Sostre v. McGinnis, 442 F.2d 178, 189 (2d Cir.1971) (en banc), cert. denied sub nom., Oswald v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). "All other rights of an inmate are illusory without it, being entirely dependent for their existence on the whim or caprice of the prison warden." DeMallory v. Cullen, supra, 855 F.2d at 446 (quoting from Adams v. Carlson, 488 F.2d 619, 630 (7th Cir.1973)). Consistent with this protection, the burden is on the state to show that its assistance to inmates is adequate to enable inmates to prepare and file meaningful legal papers. Alston v. DeBruyn, 13 F.3d 1036, 1041 (7th Cir.1994); DeMallory v. Cullen, supra, 855 F.2d at 446; Caldwell v. Miller, 790 F.2d 589, 606 (7th Cir.1986). Accord, Casey v. Lewis, 43 F.3d 1261, 1266 (9th Cir.1994), cert. granted, ___ U.S. ___, 115 S.Ct. 1997, 131 L.Ed.2d 999 (1995).[48] Access to the courts means the ability to file a legally sufficient claim, or as stated by one court, "getting the courthouse door opened in such a way that it will not automatically be slammed shut." Knop v. Johnson, 977 F.2d 996, 1006-07 (6th Cir.1992), cert. denied sub nom., Knop v. McGinnis, ___ U.S. ___, 113 S.Ct. 1415, 122 L.Ed.2d 786 (1993).
4. Defendants argue that plaintiffs may only proceed if they have proved that they lost a case or were unable to file a case as a result of defendants' actions. A number of Seventh Circuit decisions have held that an inmate must show "some quantum of detriment caused by the challenged conduct." Alston v. DeBruyn, supra, 13 F.3d 1036, 1041 (quoting from Shango v. Jurich, 965 F.2d 289, 291 (7th Cir.1992)). The court has *223 also held that the "showing of detriment is waived, however, where the inmate alleges `a direct, substantial and continuous, rather than a "minor and indirect" limit on legal materials.'" Alston v. DeBruyn, supra, 13 F.3d at 1041 (quoting from DeMallory v. Cullen, supra, 855 F.2d at 448-49). As a practical matter, it must often be impossible for an inmate to prove that he would have won his case or at least would have been able to bring a meaningful claim if he had had the access to the courts that he is claiming he lacked. The Supreme Court in Bounds v. Smith noted that inmates without meaningful access may not know "whether they have claims at all." Bounds v. Smith, supra, 430 U.S. at 826 n. 14, 97 S.Ct. at 1497 n. 14. In this case, Judge Moran similarly commented
that inmates may need to have access to legal resources in order to learn that they have a colorable claim as well as to frame a cause of action. A requirement that inmate plaintiffs be thwarted in their active pursuit of an existing lawsuit before they can bring an access-to-court claim assumes a degree of access to legal resources that may not exist.
Walters v. Thompson, supra, 615 F.Supp. at 338. The Supreme Court in Bounds added:
[A] lawyer must know what the law is in order to determine whether a colorable claim exists, and if so, what facts are necessary to state a cause of action. If a lawyer must perform such preliminary research, it is no less vital for a pro se prisoner. Indeed ... it is often more important that a prisoner complaint set forth a nonfrivolous claim meeting all procedural prerequisites, since the court may pass on the complaint's sufficiency before allowing filing in forma pauperis and may dismiss the case if it is deemed frivolous.... Moreover, if the State files a response to a pro se pleading, it will undoubtedly contain seemingly authoritative citations. Without a library, an inmate will be unable to rebut the State's argument. It is not enough to answer that the court will evaluate the facts pleaded in light of the relevant law. Even the most dedicated trial judges are bound to overlook meritorious cases without the benefit of an adversary presentation.
430 U.S. at 825-26, 97 S.Ct. at 1496-97.
5. The purpose of the detriment requirement is to be certain that there is a controversy.[49]Hossman v. Spradlin, 812 F.2d 1019, 1022 n. 5 (7th Cir.1987). Accordingly, most courts have found that an allegation of need for a particular purpose satisfies the detriment requirement. In Petrick v. Maynard, 11 F.3d 991, 996 (10th Cir.1993), for example, the Tenth Circuit held that a prisoner alleging a need for particular materials must articulate a need for the requested material with sufficient particularity so that the need could be measured against legitimate penological concerns. The Court emphasized, however, that the prisoner need not prove the materiality of the items sought since that "will often be impossible." Id.
6. Defendants' argument must be rejected in this case for two additional reasons. First, the Seventh Circuit has specifically held that
when an inmate complains of prison rules that substantially and continuously limit his or her access to legal materials and counseling, the complaint carries an inherent allegation of prejudice.
DeMallory v. Cullen, supra, 855 F.2d at 449. The complaint in this case, and the proof, concern specific prison rules that continuously restrict plaintiffs' access to legal materials and assistance in presenting claims to the courts. Plaintiffs allege that the restrictions are so substantial that they violate their constitutional rights under Bounds. As discussed below, I conclude that the restrictions do substantially restrict plaintiffs' access to the courts at three of the institutions involved *224 in this case. Accordingly, the plaintiffs have met their burden in this regard.
7. Plaintiffs have done more than allege a substantial and continuous limit on their access to legal materials and assistance. Numerous witnesses, including the DOC Library Services Coordinator, testified that the assistance currently provided inmates is inadequate. Another of defendants' witnesses, a paralegal at one institution, testified that inmates at his institution who needed help, and were in many cases illiterate, were not getting help. A law clerk at Joliet also testified that he did not even have sufficient time to respond to all requests for materials from inmates in segregation. Finally, numerous members of the plaintiff class testified that they were unable to adequately present claims. Having listened to the testimony and reviewed pleadings filed by some of the inmates, I find this testimony to be credible. Thus, plaintiffs have shown a detriment.
8. It is undisputed that plaintiffs do not have direct access to a library. Those plaintiffs who are incarcerated at Menard are allowed in the library, but they are restricted to study cages where they must rely upon inmate law clerks to bring materials to them. They cannot browse among the books. At the other institutions involved in this case, inmates are confined to their cells in segregation. They may see and use only those legal materials which are brought to them by inmate law clerks or library personnel.
9. Where inmates are not provided with access to a law library, the inquiry is whether prison officials are providing "adequate assistance from persons trained in the law." Bounds v. Smith, supra, 430 U.S. at 828, 97 S.Ct. at 1498. Accord, e.g., Casey v. Lewis, supra, 43 F.3d at 1267 ("For those inmates deemed security risks and denied access to the library, Bounds requires the State to provide legal assistance."). Bounds suggested that this could be achieved by
the training of inmates as paralegal assistants to work under lawyers' supervision, the use of paraprofessionals and law students, either as volunteers or in formal clinical programs, the organization of volunteer attorneys through bar associations or other groups, the hiring of lawyers on a part-time consultant basis, and the use of full-time staff attorneys, working either in new prison legal assistance organizations or as part of public defender or legal services offices.
430 U.S. at 831, 97 S.Ct. at 1499. Bounds also noted the difficulties in a system dependent on inmate clerks, commenting that "[l]egal services plans not only result in more efficient and skillful handling of prisoner cases, but also avoid the disciplinary problems associated with writ writers, ..." Id. Nevertheless, the Court emphasized that it was not mandating one option, but rather, that the inquiry was whether a particular plan, evaluated as a whole, satisfied constitutional standards. Id. at 832, 97 S.Ct. at 1500.
10. Despite the Court's recognition that an attorney or law student-assisted program had clear benefits,[50] it is clear that the Constitution does not require an attorney to assist an inmate in filing a claim. E.g., Knop v. Johnson, 977 F.2d 996, 1004-05 (6th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1415, 122 L.Ed.2d 786 (1993); Morrow v. Harwell, supra, 768 F.2d at 623.
11. All of the institutions involved in this case attempt to satisfy Bounds through the use of inmate law clerks. Bounds contemplated that such clerks would work under the supervision of lawyers. Bounds v. Smith, supra, 430 U.S. at 831, 97 S.Ct. at 1499. Moreover, all courts considering the issue require that inmate clerks receive legal training. E.g., Bounds, id.; Casey v. Lewis, supra, 43 F.3d at 1267 (providing assistants without legal training "directly contravenes the rule set forth in Bounds that legal assistance must be provided by persons `trained in the law'."); Valentine v. Beyer, 850 F.2d 951, 956 (3rd Cir.1988) ("An untrained legal *225 research staff is insufficient to safeguard an inmate's right of access to the courts.").
12. It appears equally clear that a runner system alone, that is, a system in which law clerks serve as messengers only, bringing books to inmates who do not have access to a library, is not constitutionally adequate. E.g., DeMallory v. Cullen, supra, 855 F.2d at 447 (7th Cir.1988) ("[W]hen inmates have no access to a law library they must be provided with assistance by trained, skilled, and independent legal personnel") (quoting Walters v. Thompson, supra, 615 F.Supp. at 340); Toussaint v. McCarthy, 801 F.2d 1080, 1109-10 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). A runner system presents at least two problems. The first relates to the nature of legal research. As Judge Moran noted:
Legal research often requires browsing through various materials in search of inspiration; tentative theories may have to be abandoned in the course of research in the face of unfamiliar adverse precedent. New theories may occur as a result of a chance discovery of an obscure or forgotten case. Certainly a prisoner, unversed in the law and the methods of legal research, will need more time or legal assistance than the trained lawyer in exploring his case. It is unrealistic to expect a prisoner to know in advance exactly what materials he needs to consult.
Walters v. Thompson, supra, 615 F.Supp. at 339 (quoting from Williams v. Leeke, 584 F.2d 1336, 1339 (4th Cir.1978), cert. denied, 442 U.S. 911, 99 S.Ct. 2825, 61 L.Ed.2d 276 (1979). Accord, Toussaint v. McCarthy, supra, 801 F.2d at 1109-10; Morrow v. Harwell, supra, 768 F.2d at 623 ("Even a quick research project by a trained lawyer may require reference and cross reference to numerous volumes"). Likewise, Judge Shadur explained:
[A]s anyone who has done legal research knows, it is essential to have free access to the books to know just which ones you really need. No one even the most skilled legal scholar can work effectively by having to designate in advance precisely which books (or which pages) are needed, then having those books (or pages) brought to the individual, then designating other books (or pages) as a result of reviewing the first designation, and so on. Even if an inmate were sophisticated and attuned to the nuances of legal meaning, the limitations imposed by defendants would convert the possible work of minutes into a need to spend hours and, moreover, hours to which no plaintiff could gain access.[51]
Williams v. Lane, 646 F.Supp. 1379, 1389 (N.D.Ill.1986), aff'd, 851 F.2d 867 (7th Cir. 1988), cert. denied, 488 U.S. 1047, 109 S.Ct. 879, 102 L.Ed.2d 1001 (1989).
13. A runner system is even less adequate to meet the needs of illiterate prisoners. For these inmates, "as a practical matter, there can be no meaningful access to the judicial system unless some literate person is available to reduce their stories to intelligible written pleadings." Knop v. Johnson, supra, 977 F.2d at 1006. As other courts have noted, "[i]t goes without saying that `a book and a library are of no use, in and of themselves, to a prisoner who cannot read.'" Casey v. Lewis, supra, 43 F.3d at 1267 (quoting from Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 855-56 (9th Cir.1985)). For this reason, numerous courts have held that meaningful access to the courts requires assistance to illiterate inmates in researching and drafting pleadings regardless of whether the inmates have access to a library. E.g., Casey v. Lewis, supra (requiring sufficient legal assistants under organized plan for functionally illiterate inmates and inmates in segregation); Knop v. Johnson, supra (requiring paralegal rather than inmate help for inmates needing assistance); Valentine v. Beyer, supra (affirming injunction that prevented prisons from substituting messenger service for paralegal system); Cruz v. Hauck, 627 F.2d 710, 721 (5th *226 Cir.1980) ("Library books ... cannot provide access to the courts for those persons who ... are illiterate." The issue under Bounds is meaningful access); Walters v. Thompson, supra.
14. Defendants argue that the Seventh Circuit has nevertheless upheld the constitutionality of a runner system alone under Bounds, citing Caldwell v. Miller, 790 F.2d 589 (7th Cir.1986), and Campbell v. Miller, 787 F.2d 217 (7th Cir.1986), cert. denied, 479 U.S. 1019, 107 S.Ct. 673, 93 L.Ed.2d 724 (1986). Neither opinion so holds, as the Seventh Circuit clearly stated in DeMallory v. Cullen, supra, 855 F.2d at 447.[52] Each involved the United States Penitentiary at Marion, Illinois. At the time, Marion was the highest level maximum security prison in the federal system. For security reasons, officials at Marion instituted a two-part system of access to legal materials. The system relied in part on a runner system, in which an inmate could request specific materials which would be delivered to his cell. But the inmates also had direct access to a small library, containing many reference materials, including the UNITED STATES CODE ANNOTATED, the CRIMINAL LAW REPORTER, and numerous prisoners' rights manuals, as well as other books. See Appendix to Caldwell v. Miller, supra, 790 F.2d at 610-11. The Seventh Circuit concluded that the combination of a direct access limited library and supplemental access to any specific materials not available in the direct access library was constitutional under the facts of those cases. Neither case presented an issue as to whether the inmates involved could read or understand the materials.
15. More recently, the Seventh Circuit reversed the dismissal of a case alleging denial of access to the courts. See Alston v. DeBruyn, supra, 13 F.3d 1036. In holding that the district court had erred in implying "that the constitutional requirement is met whenever an inmate is given any time in a law library," the Seventh Circuit emphasized that the "touchstone is `meaningful' access, not just access." Alston v. DeBruyn, supra, 13 F.3d at 1041 (quoting from Bounds v. Smith, supra, 430 U.S. at 823, 97 S.Ct. at 1495).
16. Applying these principles to the present case, I conclude that the system of inmate assistance utilized by the Illinois Department of Corrections for inmates in segregation at Menard, Pontiac and Joliet maximum security prisons cannot withstand constitutional scrutiny. The evidence showed that segregation inmates are dependent on law clerks, who essentially act as runners in each of these prisons.
17. At Joliet, there are between 90 and 100 inmates in segregation at any time. They are not allowed to go into the library. One to three law clerks, a paralegal, and a librarian serve the 1,300 inmates at Joliet, including the inmates in segregation.[53] During the trial, both the librarian and paralegal quit. The law clerks are not required to have, and at least one did not have, any legal training at the time they begin their jobs. The law clerk acts as a runner for inmates in segregation, having no time to do more than fill requests for legal materials, and at times insufficient time to even take all requests. There was also evidence that noise would prevent inmates from discussing problems with law clerks if they wanted to attempt to get any legal advice, and that guards would be standing nearby.
18. In addition, the library at Joliet also appears to be inadequately maintained in that missing volumes are replaced only once a year. DOC officials testified that regularly missing volumes included the Illinois Criminal Code and the volume containing 42 U.S.C. § 1983. Inmates may well be responsible for taking the missing volumes, although there was no evidence to that effect and it is possible that inmates are not responsible. *227 At any rate, each plaintiff's right of access to the courts is individual, and therefore a plaintiff cannot be prevented access by the theft, if it occurs, of others. I conclude that defendants' efforts to make available substitute materials[54] or to reorder materials have not been shown to be adequate to ensure plaintiffs' reasonable access to the courts.
19. The library has other problems. Until the eve of trial, the library did not even keep a list of forms available to prisoners. Although a list of available forms was eventually developed, inmates in segregation may not receive the list.
20. The problems of access for inmates in segregation at Pontiac are equally severe. Until the eve of trial of this case, Pontiac's nearly 2,000 inmates were served by three or four inmate law clerks and a paralegal who worked part of the time in another prison. Although segregation inmates are not allowed in the library, the DOC maintained no documented schedule showing visits to segregation by law clerks until shortly before trial. The law clerks and paralegal agreed that they were unable even to fill legal requests for everyone who had requests for books and materials; they did not have time to provide additional assistance for those in need. The paralegal testified that the number of inmate law clerks was insufficient and that he had repeatedly sought to hire more clerks. While the law clerks had received training, the only teacher who testified said that the clerks did not understand the course and would be unable to provide assistance in crucial areas. In addition, there was evidence that officials harassed law clerks in an attempt to discourage them from giving even the little help they could give.
21. Pontiac's library is also deficient in that it does not contain an annotated version of 42 U.S.C. Considering that the vast majority of inmate lawsuits at least those in federal court are filed pursuant to 42 U.S.C. § 1983, a copy of the statute that includes case citations would appear to be a basic research tool.
22. At Menard, there was only one law clerk to serve between 270 and 300 inmates in segregation at the time this case went to trial, despite the fact that six years had elapsed between the time Judge Moran found that the DOC's practices at Menard violated plaintiffs' rights to access to the courts and the time of trial. Although one additional law clerk was assigned to segregation at the time of trial, there were only five law clerks to serve the entire prison population,[55] and the DOC itself agreed that there needed to be between 10 and 20 clerks. The law clerk or clerks assigned to segregation visited segregation but twice a week and took orders for materials. Although the clerks were ostensibly under the supervision of a paralegal, there was no paralegal for nearly eight months in the year before trial. The only paralegal hired subsequently quit during trial and was not replaced for several months. At any rate, the paralegal did not know what the law clerks were doing, and he understood that he could not give legal advice, conduct research or prepare pleadings. He also did not know basic information about various forms. Although inmates were allowed to go to study cages within the library, an inmate might be able to use a case for only two hours in a period of weeks unless he had a documented deadline. Time in the study cages was limited to two-hour segments (which might be cut short) even for those with documented deadlines, a time too short to engage in much research.[56] Until a new directive was issued at the end of trial, the official written policy forbade clerks from conducting research and drafting pleadings. *228 In general, the clerks refrained from giving such assistance. Sometimes clerks did do research and draft pleadings. However, they were not supervised when doing so, and there was evidence that inmates were at times charged for the work. Furthermore, by the end of the trial, there were only three law clerks who regularly dealt with segregation inmates, and two of those had no legal training. (The third finished the course offered by defendants during trial.) Clearly, the number of law clerks was insufficient to enable the clerks to provide assistance beyond providing specific materials even if Menard had a program to provide assistance or supervision.[57]
23. Defendants did not provide convincing evidence that the law clerks at any of these facilities were "capable of helping any inmate draft a legal document." Ramos v. Lamm, 639 F.2d 559, 584 n. 29 (10th Cir. 1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). To the contrary, the evidence showed that law clerks frequently were assigned to assist inmates in segregation although they had never had legal training, that paralegals and librarians never reviewed documents drafted by the law clerks (and in some cases did not have the training to provide such review), and that even when law clerks took courses, their own teachers believed they could not understand the material.
24. At each of these institutions, the problems are compounded for nearly one third of the inmates by the fact that they are illiterate, i.e., unable to read beyond the sixth grade level, a level that would not enable them to read or understand even the simplest legal material according to the expert testimony at trial.[58] Since one half of the inmates read at the eighth grade level or lower, the number who are unable to understand the material necessary to prepare or file a pleading sufficient to withstand a motion to dismiss is probably much greater than one third of the inmates. None of these institutions maintain any procedure to ensure that such inmates will be provided with the assistance they need to file a legally sufficient complaint or petition in court. These inmates do not have meaningful access to the courts.
Dwight Correctional Center
25. Dwight differs from the institutions discussed above not only in the fact that it houses female prisoners but also in its size. There are 662 prisoners at Dwight not all of them maximum security and of these there are between 29 and 48 inmates in segregation at one time. Unlike the segregation inmates at the men's prisons, those in segregation at Dwight generally remain there for short periods, although there are and have been prisoners in segregation for periods in excess of one year. Like those at the men's institutions, inmates in segregation at Dwight are not allowed access to a library. There are, however, two law clerks who go to segregation three times a week. They remain as long as they are needed and they provide substantive help. Furthermore, they have received legal training, and those who testified appeared to be better educated and have greater legal knowledge than the law clerks and some of the lay paralegals at the men's institutions.
26. In addition, the paralegal who worked at Dwight at the time the trial began appeared to provide real supervision to law clerks, reviewing their work, assisting them, and helping inmates directly. Bounds requires *229 that inmate law clerks receive substantive supervision. I conclude that, at least at the time the trial began, law clerks at Dwight were receiving such supervision. The evidence with respect to the paralegal who replaced Ms. Nicklies is more tentative. She had been working at Dwight for too short a time to allow anyone to draw conclusions about her supervision and assistance to law clerks and inmates once she learned her job. It is also possible that she is no longer working at Dwight. Thus, based on the evidence before me, I conclude that Dwight has provided inmates with access to the courts as required by Bounds. However, this conclusion is necessarily limited to the conditions existing at the time of trial.[59]
27. Dwight is not a perfect model for access to the courts. The fact that inmates in segregation are receiving access to the courts did not appear to be the result of institutional procedures, but was instead the result of better educated clerks, the small number of women in segregation, the small number of women in segregation over a lengthy period of time, and a paralegal who tried earnestly to do her job. Dwight also has problems that have not been addressed. In particular, plaintiffs' evidence showed that some legal forms used at Dwight for child custody matters might actually prejudice an inmate. However, the access to courts required by Bounds does not extend beyond "constitutional rights and other civil rights actions related to [inmates'] incarceration." Knop v. Johnson, supra, 977 F.2d at 1009. Accordingly, while the evidence indicated that many of the legal problems of interest to women at Dwight concerned their children, they have no constitutional right to assistance from defendants in this area.
Other Claims
28. Plaintiffs have raised other claims that can be discussed briefly and that may alleviate issues otherwise likely to arise in devising an appropriate remedy in this case. First, prisons are not required to provide inmates with typewriters. See, e.g., Taylor v. Coughlin, 29 F.3d 39 (2d Cir.1994). Second, although a former librarian testified in this case that paralegals and other civilian personnel would have greater independence if they were not on defendants' payroll, defendants are not required to take this step. See, e.g., Knop v. Johnson, supra, 977 F.2d at 1008.
Relief
The parties agreed at trial that the question of remedy would be addressed separately if I found that any of the institutions did not meet the requirements of Bounds. For that purpose, counsel for the parties shall meet and attempt to agree on a special master to oversee a proposed plan. Together with the special master, counsel shall attempt to agree on a plan for each of the institutions that will bring these institutions into compliance with Bounds as soon as possible. If the parties cannot agree, the special master shall submit a plan, and counsel for either side may submit alternative plans.
NOTES
[1] The parties had begun trial of this case before Judge Moran when it was reassigned to Judge James Alesia. Judge Alesia declared a mistrial. After settlement discussions broke down, the case was reassigned to me, originally by consent when I was a U.S. Magistrate Judge. It was reassigned to my calendar as a U.S. District Judge on my appointment to the district court.
[*] Due to the length of the proceedings and the amount of evidence, I have earlier provided the parties with proposed findings of fact and conclusions of law. Each side was given the opportunity to submit objections to findings. I have reviewed the objections and made changes where I thought they were appropriate. If I have not made a change pursuant to an objection, it is because I have considered the proposed change and specifically concluded that it is not supported by the evidence, which includes the record as a whole and my determination of credibility of witness testimony. In this opinion, I have referred to only a few of these objections.
[**] To the extent that any finding of fact includes a conclusion of law or any conclusion of law includes a finding of fact, it shall be treated as such.
[2] See, e.g., Morrow v. Harwell, 768 F.2d 619, 624 (5th Cir.1985). But, as the Morrow court noted, the right of access is individual. Id. Therefore, the fact that some inmates might be in segregation only a short time cannot limit the right of access of others.
[3] My findings of fact and conclusions of law with regard to Stateville will be entered separately.
[4] The vast majority have been convicted of murder or Class X felonies.
[5] In response to my proposed findings, defendants argued that segregation inmates have "significant telephone access to counsel." The evidence did not support that statement (and in most cases, there is no counsel). I also note that in my experience, even when I have appointed counsel, it frequently requires a court order for an inmate in the custody of the DOC, even one not in segregation, to contact counsel.
[6] Inmates with life sentences, those who did not speak English, and those with sentences of less than two years were excluded.
[7] Defendants note that the TABE score includes both a mathematical and reading component and argue that math scores may have reduced the total. Defendants did not produce any evidence to support this contention. The test material, however, is within the control of the DOC. In addition, TRENDS AND ISSUES 91, a publication of the Illinois Criminal Justice Information Authority, lists math and not English as the more popular subject among both men and women inmates. Id. at 99-100. Furthermore, almost 20 percent of the men admitted difficulty in reading, although fear of repercussions and embarrassment generally makes inmates reluctant to disclose reading problems. Id. at 98.
[8] At the time this calculation was made, the DOC was in the process of entering the TABE score of all inmates into a computer database. Thus, many scores were not in the database when the calculation was made. Testimony from the DOC indicated that the entries were being made in a random manner. In addition to this, as stated in footnote 4, not all inmates are administered the test. Thus, the court will assume that the 8.1 score represents a rough average of the total inmate population.
[9] The sixth grade was chosen as the minimum literacy level because the DOC determined that it had the resources to put those inmates below the sixth grade level into the basic education program without creating a serious backlog. Inmates may refuse to participate; however, the system is set up with incentives to encourage their participation.
[10] The percentages in the text do not account for those students who chose not to participate in the program. The testimony does not indicate that every inmate who participated in the program actually retook the test.
[11] As noted in footnote 8, the Illinois DOC program sets "literacy" at the sixth grade level. In contrast, the Federal Bureau of Prisons requires inmates to attend classes until they can read at the twelfth grade level and complete a GED or high school equivalency degree. Id. at 111. The difficulty in significantly improving an inmate's literacy level in a short period of time is compounded by the level of learning disabilities among prison populations. Although the DOC apparently has not measured the rate of learning disabilities among its population, the Report of the Illinois Criminal Justice Authority notes that one study found that 50 percent of juvenile delinquents have learning disabilities. Id. at 56. The DOC does provide special education assistance but only to inmates under the age of 21.
[12] Defendants assert that DX-135, Part V, 10987-88, reflects that Menard segregation inmate John Williams filed a Section 1983 suit on December 4, 1990 which clearly alleges an equal protection claim. Mr. Williams also filed a motion for appointment of counsel. Defendants note that Mr. Williams claimed to have a third grade reading level. Mr. Williams' claimed reading ability is not relevant to this case. His actual reading ability is relevant, but defendants have not provided the court with Mr. Williams' TABE score. Furthermore, defendants have not indicated whether Mr. Williams was aided in the preparation of his complaint by an inmate law clerk or other inmates who have above-average abilities and knowledge in the area.
[13] Defendants argue that John Castro, a DOC official, testified that all inmate law clerks were required to have legal training. Repeated testimony that I credited throughout the trial showed that this was not in fact true.
[14] They are allowed to borrow books from the general library.
[15] Ms. Wagh left her position as librarian soon after she testified in February, 1992. It is unclear as to when a new librarian was hired, although it was apparently a number of months later.
[16] Defendants argue in their post-trial proposed findings that a librarian aide performed some of the duties of a paralegal (or inmate clerk) such as filling and delivering requests for legal materials. Actually, it appears that the aide at one point may have been the only civilian or inmate worker to service the entire library due to resignations and dismissals of civilian personnel and inmate clerks. There was no testimony that the aide had any training for her work. (Tr. 5739-42.)
[17] With the exception of Ms. Terlep, none of the Joliet paralegals testified at trial. Ms. Terlep was assigned to Joliet after she had testified about her work at Dwight. She did not testify about her work at Joliet.
[18] At one time in 1990, Joliet had three law clerks.
[19] Ms. Wagh also stated that she had not seen illiterate inmates. That testimony is inconsistent with defendants' admissions. Later, she testified that the law clerk would draft papers or write letters for illiterate inmates. That testimony is inconsistent with other evidence and I specifically discredit it.
[20] As noted in the previous footnote, Ms. Wagh's credibility was impeached on numerous issues.
[21] Pontiac has two correctional facilities: one is a maximum security institution and one is a medium security institution.
[22] Ms. Stahlman claimed that she did some legal research. However, when questioned by me as to an example, she said that she deferred to the law clerks who were more knowledgeable than she. Defendants' proposed findings were particularly misleading with regard to Ms. Stahlman's testimony. Although Ms. Stahlman, who had obviously been coached in her testimony, made statements which defendants then referred to as "facts" in their proposed findings, in every case she herself gave contradictory testimony. Pontiac's other paralegal, Mr. Holmes, testified credibly, and his testimony is the best evidence that Ms. Stahlman's testimony was not credible. Her testimony was also contradicted by the various law clerks. As noted earlier, the librarian was not called as a witness.
[23] Defendants listed in their final pretrial order persons who had taught the paralegal training classes at each of the five institutions. However, defendants did not call any of these teachers as witnesses. I therefore assume that their testimony would be consistent with the testimony of Mr. Barford, except where noted in this opinion.
[24] Another inmate clerk testified that he was strip-searched every time he entered segregation.
[25] The practice at the other Illinois institutions involved in this lawsuit is to conduct random strip-searches.
[26] As defendants point out, in one case, Mr. Holmes did disbelieve an inmate and his investigation appeared to prove his point. My interpretation of Mr. Holmes' testimony that he has believed inmates' claims of illiteracy in other instances is that based on what he has heard or learned about the inmate, he has no reason to disbelieve the statement.
[27] They do note that books are often missing or have pages taken out but do not dispute that the library tries to replace missing items, either by new purchases or loans from other libraries. They do not allege that missing materials constitute a constitutional violation. The library's collection includes state and federal statutes and reporters, and secondary authorities and practice guides, such as the PRISONERS LITIGATION SELF-HELP MANUAL and POST CONVICTION SELF-HELP REMEDIES MANUAL.
[28] Sometimes, however, the library "line" is cancelled due to institutional problems. In one incident during trial, segregation inmates were not permitted to go to the library cells for several days.
[29] An inmate who wants to do research may encounter other problems. A defense witness testified that he had observed inmates in the study cells talking, verbally abusing other inmates or staff, and urinating on the floor.
[30] Ms. Pate, the library associate, testified that such a list was available to inmates. Two inmates testified that inmates did not have access to such a list. The list itself is ten pages long and is not descriptive (apart from whatever description exists in the title of a book). It does not appear to have been prepared for use by inmates as a reference source. It was not posted in the study cells.
[31] Defendants also rely on testimony of Mr. Chappell, the paralegal, that he went to segregation once or twice a week. However, defendants' records showed that this testimony was not accurate. According to these records, in some months Mr. Chappell was never on the segregation unit at all.
[32] Until shortly before the trial, defendants did not keep a log showing visits by the law clerks to segregation.
[33] Some of the other difficulties in interviewing segregation inmates were illustrated by one inmate law clerk, Mr. White, who testified that he could not see, and sometimes did not know, the inmate behind a solid cell door in segregation. In order to hear, he had to put his ear to the crack of the door; to be heard, he had to put his mouth to the crack of the door. He did not know what might be thrown at him by unfriendly inmates on these occasions. (Tr. 526-27.)
[34] Ms. Pate testified that clerks took and passed this test, even without a legal training course. There was no other testimony regarding the test. I have reviewed it, however, and I do not believe that anyone could pass it without substantial legal training. Furthermore, the test states that it is to be taken in two and a half hours. I doubt that most lawyers could complete the test in this time. The questions include essays on topics such as, "What are the differences in terms of function and content between a petition for post-conviction review and a petition for writ of habeas corpus?" and "Briefly discuss the circumstances under which a prison inmate would be likely to use a Section 1983 action, and those in which he would be likely to use an application for a writ of habeas corpus. What would be some of the remedies available under both actions?"
Defendants did not introduce any actual test papers. My skepticism in relying on Ms. Pate's testimony about this test is increased by the fact that the only paralegal skills instructor to testify at trial stated that inmates could not understand his course. My skepticism is further increased by examination of a test paper completed by an inmate law clerk at Dwight Correctional Center. That test, while similar in some respects to the test that Ms. Pate testified was taken by inmates at Menard, appeared to be less difficult. The inmate law clerk who took the test had two years of college at the University of Minnesota and had taken a paralegal course. She scored 78 points (out of a possible 95). Based on all of this evidence, I have not found defendants' reliance on inmates' allegedly passing the legal skills test to be worthy of any weight in assessing their legal knowledge.
[35] Ms. Pate testified that she fired one law clerk for charging for services.
[36] There was no specific testimony about their hours at Menard, but DOC regulations require them to work only four hours a day.
[37] Defendants also refer to the testimony of Howard Peters, Director of the Illinois Department of Corrections. After DOC records showing that official DOC policy prohibited inmate law clerks from drafting pleadings for other inmates were put in evidence, Mr. Peters testified that he wrote to the wardens of the institutions involved in this case, telling them to correct such policy statements. In his testimony, Mr. Peters stated that law clerks actually do write such petitions. He recited no basis for any knowledge of actual practice, however, and his testimony as a whole indicated he was unfamiliar with actual practice. Indeed, he was unable to identify any prior written policy in the control of the DOC that even allowed, let alone required, inmate clerks to assist other inmates in drafting pleadings.
[38] Indeed, although he testified that he took requests from the segregation inmates who came to the study cages, both the librarian, Ms. Pate (who testified some months later), and the paralegal, Mr. Chappell, testified that Mr. Stringer was primarily a reference clerk who hands out forms and books to all inmates. (Tr. 4603, 4632, 4675.)
[39] Ms. Pate testified that one paralegal left in July, 1990. A replacement was not hired until April, 1991.
[40] Defendants argue, from general testimony elicited from Mr. Chappell, that he did indeed advise inmates on such matters as the proper forms to use. It is clear from Mr. Chappell's testimony as a whole that he did not do so, and in fact was not even familiar with the forms. See, e.g., Tr. 4700. I specifically discredit any other testimony as not believable.
[41] Defendants introduced testimony that this posted policy was not followed after I indicated that the policy unconstitutionally limited inmates' access to courts. I did not find this later testimony credible and I find no reason not to believe Ms. Pate's testimony on this point. Defendants' testimony also showed that the policy is posted at various places in the library.
[42] Defendants assert that Dwight is not considered a maximum security facility because it houses inmates of all security classifications. However, defendants never objected to Dwight's inclusion as part of the class.
[43] The paralegal testified that as of April, 1991, the Prison Review Board requires that all clemency petitions be typed.
[44] On this issue, there was no contradictory testimony, but it came in on rebuttal, after Ms. Terlep had testified.
[45] One inmate, Lisa Forbes, who was in segregation from June, 1989 through September, 1990, testified that during that period she asked to see a law clerk approximately 15 times and was only visited three times. I did not find Ms. Forbes' testimony to be credible.
[46] At trial, Ms. Terlep testified that she had established a new policy allowing segregation inmates to have books in their cells. The testimony did not indicate which books were included in this policy. The testimony and apparent change in policy is another example of a problem that occurred frequently during this trial and that has been noted at various times in this opinion: a long-standing policy or practice was suddenly changed on the eve of, or in the course of, trial. Under the circumstances, I am unable to assume that the change represents an ongoing condition at Dwight.
[47] Judge Moran did not issue a preliminary injunction because insufficient facts had been presented with respect to several of the institutions involved in this lawsuit and because there had been no evidentiary hearing on the motion. Accordingly, he decided that the balance of hardships rested with defendants since the relief would require major institutional changes at each institution.
[48] Defendants argue that the plaintiffs bear the burden of proving the provision of meaningful assistance. In support of their position, defendants rely on statements in several Seventh Circuit cases, including Alston v. DeBruyn, supra, that say that an inmate must show that prison officials have failed to provide adequate assistance. See 13 F.3d at 1040-41. In addition to this statement, however, Alston reiterated previous Seventh Circuit holdings that "defendants ... bear the burden of proving the adequacy of the means provided." Id. at 1041. I conclude that defendants bear the burden of proof, as the Seventh Circuit has clearly stated.
[49] However, both the Seventh Circuit and the Supreme Court have treated this issue liberally. For example, in Buise v. Hudkins, 584 F.2d 223, 227 (7th Cir.1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979), a prisoner "jailhouse lawyer" was found to have standing to raise the claims of other prisoners concerning access to the courts. The Seventh Circuit relied on Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), in which the Supreme Court had allowed a "jailhouse lawyer" to assert a denial of access to the courts on behalf of his fellow prisoners.
[50] In addition to the above, the Court noted that "[i]ndependent legal advisors can mediate or resolve administratively many prisoner complaints that would otherwise burden the courts, and can convince inmates that other grievances against the prison or the legal system are illfounded, thereby facilitating rehabilitation by assuring the inmate that he has not been treated unfairly." Id. at 831, 97 S.Ct. at 1499.
[51] Judge Shadur made these comments in connection with the study cages available at Stateville, to which protective custody inmates, like those in segregation, have access. Judge Shadur concluded that this system denied plaintiffs their right to meaningful access to the courts under Bounds. 646 F.Supp. at 1407.
[52] In DeMallory, the Seventh Circuit also differentiated the justifications for the severe restrictions found acceptable at Marion ("the highest level maximum security prison in the federal penitentiary system," of which the "control unit" was for even more difficult inmates") from other maximum security facilities, including the segregation units at those facilities, such as the unit at issue in DeMallory. 855 F.2d at 447 n. 1. The facilities in question in this case are comparable to the Wisconsin institution in DeMallory.
[53] During part of the trial, there was only one law clerk serving the entire institution.
[54] Although defendants say that they can obtain material from a missing volume by interlibrary loan (which takes 10 days), this requires that an inmate, or library clerk or paralegal, know exactly what to ask for. Much of the utility of these volumes is to enable someone to browse through the case summaries under headnotes following the statutes.
[55] Several of these clerks were hired just before trial. These figures do not include law clerks assigned to service protective custody prisoners.
[56] As any lawyer knows, some time is spent simply getting organized. See also the cases and quotations cited above with respect to the need for time to browse through materials to begin to formulate a theory and to understand applicable law and precedent.
[57] After I had provided the parties with my proposed findings of fact and conclusions of law, the Seventh Circuit decided Smith v. Shawnee Library System, 60 F.3d 317 (7th Cir.1995). Defendants have not argued that Smith controls this case and I agree that it does not affect this decision. Smith did involve Menard, but was an individual action by a protective custody inmate. In addition, it was decided on summary judgment, rather than after a full trial on the merits. In the present case (apart from the other facts that I have found to exist), DOC witnesses themselves testified that the number of inmate law clerks was insufficient to provide adequate help to inmates.
[58] As noted earlier, defendants argued that the evidence showed only a combined reading and mathematical score. The evidence was in their possession. They also bear the burden of proof. In addition, as noted in the Findings of Fact, the evidence indicates that if the inmates have a higher score in one area, it is in mathematics, not reading.
[59] It is also based on my assessment of the credibility of one inmate law clerk, Ms. Nelson. If, as Ms. Nelson testified, Ms. Terlep, or the current paralegal if someone has replaced Ms. Terlep, did refuse to provide supervision or refused to allow an inmate to help another inmate (or to receive assistance) on the basis that a TABE score was not less than a sixth-grade level, I would find that the inmate's rights of access to the courts were infringed. Since I did not find Ms. Nelson's testimony to be credible in general, and since this testimony was offered only in rebuttal and did not appear to involve segregation inmates, it does not affect my conclusion in this case. I simply note this fact to emphasize that my conclusion is based on my findings of fact on the specific evidence before me. Particularly in view of the many changes that defendants made at each of these institutions on the eve of trial in this case, there is no assurance that the conditions at Dwight will remain the same. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262593/ | 306 A.2d 716 (1973)
DiSABATINO & SONS, INC. (Security Insurance Group) Employer-Appellant,
v.
Albert FACCIOLO, Claimant-Appellee.
DiSABATINO & SONS, INC. (Royal Globe Insurance Company) Cross-Appellant,
v.
Albert FACCIOLO and Security Insurance Group, Cross-Appellees.
Supreme Court of Delaware.
June 1, 1973.
*717 Alfred M. Isaacs, of Flanzer & Isaacs, Wilmington, for DiSabatino & Sons, Inc. and Royal Globe Ins. Co.
Howard M. Berg and William J. Taylor, III, of Berg, Taylor & Komissaroff, Wilmington, for Security Ins. Group.
Joseph S. Yucht, of Balick & Yucht, Wilmington, for Albert Facciolo.
WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.
CAREY, Justice:
In this workmen's compensation case, the question is which of two insurance carriers is responsible for payments of benefits for injuries sustained by Albert Facciolo, the nominal appellee, while employed by DiSabatino & Sons, Inc., the nominal appellant. The Industrial Accident Board imposed the liability upon Security Insurance Group (herein "security"), but ordered Royal Globe Ins. Co. (herein "Royal") to pay one-half of the medical witness fee and the attorney's fee. Both insurers have appealed.
*718 Facciolo was first injured on December 2, 1968, at which time Security was the insurer. While lifting a concrete block, he struck his back on some metal steps. Dr. LeRoy, a neurosurgeon, on April 8, 1969, performed a laminectomy on the right side of his L4, L5 disc because of a herniation. The claimant was permitted to do light work beginning on May 10, 1969. Later he returned to laying blocks. About the middle of November, 1969, he began to feel minor pains in his right leg, but continued to work. On December 9, 1969, he was working in a manhole fifteen feet deep. Someone yelled "Dirt!" (a signal for a cave-in), and Facciolo immediately turned and ran up a dirt ramp to avoid the cavein. He did not feel any pain at this time, and continued to work until December 16, 1969, by which time he was having pain to the extent that he went to see a doctor. On December 29, he again saw Dr. LeRoy because of pain in his back and leg. At that time, he said nothing to the doctor about the episode of December 9, but did tell him about it at some later date.
In the following February, Dr. LeRoy performed a second laminectomy on the right side of L4, L5. He found at that site an unusual amount of scar tissue, which he removed. The pain continued, however, and on March 26, a third laminectomy was performed on the L5, S1 disc; the doctor could not say how long the involvement of that disc had existed, but stated that the condition then found could have been the result of the accident of 1968, plus the effect of the surgery, or that it may have been the result of a later strain, possibly the episode of December 9, 1969. At the time of the hearing, the doctor believed that Facciolo had a 25-30 per cent disability to his back and right leg. This percentage is the same as that which followed the injury of December 2, 1968. Furthermore, the doctor said that the scar tissue itself could cause the pain. The work restrictions prescribed by the doctor thereafter were the same as those imposed following the earlier injury.
The Board made the following findings:
"The Board believes that the claimant on December 9, 1969 suffered a reoccurrence of an earlier disability first sustained on December 2, 1968 and that therefore, Security Insurance Company, the employer's carrier on December 2, 1968 must bear the full burden for all compensation due to the claimant. The Board's reasoning is as follows: The unusual exertion rule adopted by the Delaware Courts is used to determine if an accident has taken place within the meaning of the Delaware Workmen's Compensation Act, but we do not believe it is to be used to determine which insurance company is liable for compensation payments after a finding that an accident has taken place. But for the unusual exertion rule the claimant because of his pre-existing condition would not have suffered a compensable accident on December 9, 1969. We used this rule to determine eligibility for compensation not to determine who will pay it. It also must be remembered that the only medical expert, Dr. LeRoy, stated that the claimant already had the same permanent partial disability and work restrictions resulting from the first accident, well before the second accident. The subsequent events suffered by the claimant did not change the doctor's opinion on permanent partial disability or on the claimant's work restrictions. The doctor also stated that scar tissue from the first operation could have caused the claimant to give up working on December 19, 1969. The claimant suffered no external trauma in escaping the cave-in and no immediate pain thereafter. (He was not hit by any falling debris nor had he slipped, fallen or struck any object in attempting to escape the cave-in.) The Board believes that the scar tissue formations in the claimant's back were the result of the first operation. In addition the doctor stated that the claimant did not give any history to him on the first visit December 29, 1969 which related to *719 the cave-in; this is consistent with Royal Globe's Exhibit #1 where the claimant stated that he could not understand the increase in leg pain on or about December 16, 1969 and then finally he recalled having jumped from a manhole cave-in December 9, 1969. Even the claimant minimized his escape activities as the cause of his pain."[*]
I
The term "recurrence" is used in common parlance to describe the return of a physical impairment, regardless of whether its return is or is not the result of a new accident. As applied in most workmen's compensation cases, however, it is limited to the return of an impairment without the intervention of a new or independent accident. Here, we use it in that sense. We believe this definition is consistent with the use of the word "recurred" in 19 Del.C. § 2347, which reads in part as follows:
"§ 2347. Review by Board of agreements or awards; grounds; modification of award
"On the application of any party in interest on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred, or that the status of the dependent has changed, the Board may at any time, but not oftener than once in 6 months, review any agreement or award."
If an injured workman suffers a recurrence, he may apply for further compensation under the quoted section and if there has in the meantime been a change of insurers, the liability therefor falls upon that insurer which was liable for the original benefits. On the other hand, if his condition is not a true recurrence, but is brought about or aggravated by a new work-connected accident, the liability falls upon that insurer whose policy is in effect at the date of the new accident. This rule appears to have been followed in the majority of states which have not specifically provided otherwise by statute. Pace v. Industrial Commission, 71 Ariz. 216, 225 P.2d 705 (1950); Peters' Case, 331 Mass. 188, 118 N.E.2d 75 (1954); Crawford v. Tampa Inter-Ocean S. S. Co., 150 S. 875 (La.Ct. App.1933); Jenkins v. Tube Turns, Inc., 321 S.W.2d 48 (Ky.Ct.App.1959); Regis v. Lansing Drop Forge Company, 25 Mich. App. 637, 181 N.W.2d 656 (1970). Although this rule may appear somewhat arbitrary and may not be the best of all possible methods of handling such a situation, any other rule must be laid down by the Legislature rather than the Courts. See Alloy Surfaces Co. v. Cicamore, Del.Supr., 221 A.2d 480, 485 (1966).
We are of the opinion that the Board was mistaken as a matter of law in its holding that the "unusual exertion rule" is not used to determine which insurance company is liable in a case like the present one. An old injury, found to be caused or exacerbated by unusual exertion during the course of employment, is compensable; determination of the insurer liable therefor automatically follows the finding. 3 Larson on Workmen's Compensation § 95.12 and cases therein cited. If the later condition is a true recurrence, as defined herein, the original insurer is liable; if it is caused by a new work-connected accident or episode, whether or not due to unusual exertion, the liability is upon the insurer at that time.
II
From the foregoing discussion, it becomes obvious that liability as between Security and Royal in this case depends upon whether claimant's second disability was or was not a true recurrence. As to this, the Board's findings are self-inconsistent. *720 Its holding that that the claimant was entitled to additional compensation only because of his unusual exertion on December 9, 1969, necessarily implies an aggravation of his former condition by reason thereof. The result would then be a shifting of liability to Royal. But the Board also found, in effect, that the episode of December 9, 1969, was not the cause of the deterioration of his physical condition as observed by Dr. LeRoy a month or so later. This finding would necessarily imply a true recurrence for which Security would be liable. Since there is some evidence to support either conclusion, resolution of this discrepancy is a factual matter which must be resolved before a final determination can be made as between the two insurers. It is a matter which can be resolved only by the Board itself. For this reason, the existing Order must be set aside and the case remanded to the Board for further proceedings in accordance herewith.
III
The Board also ruled that, despite its finding in favor of Royal as to the principal contention, Royal nevertheless should be required to pay one-half of Facciolo's medical witness fee and attorney's fee. Apparently, the reason for this rather unusual Order was that Royal had disputed the happening of any accident at all within the Workmen's Compensation Act on December 9, 1969. We find no justification for this part of the Order. These costs should be taxed against the carrier which is liable for the other benefits, regardless of which insurer is ultimately held responsible. If it be finally determined that Facciolo's trouble was a true recurrence, Royal was certainly justified in contending that there was no accident causing compensable injuries on December 9, 1969; otherwise, it will be liable for all these expenses, in any event.
The decision below must be reversed and the cause remanded for further proceedings.
NOTES
[*] The fact, not mentioned by the Board, that the claimant had pains in his leg in November, 1969, is pointed out by Royal as adding weight to the belief that his latest trouble was a true recurrence, in the sense we herein use that term. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262594/ | 238 P.3d 444 (2010)
2010 UT App 209
STATE of Utah, Plaintiff and Appellee,
v.
Grant HILDRETH, Defendant and Appellant.
No. 20080615-CA.
Court of Appeals of Utah.
July 29, 2010.
Rehearing Denied September 27, 2010.
*445 Aaron S. Bartholomew and Carolyn E. Howard, Orem, for Appellant.
Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee.
Before Judges DAVIS, McHUGH, and ORME.
OPINION
DAVIS, Presiding Judge:
¶ 1 Grant Hildreth challenges his convictions for two counts of forcible sexual abuse, a second degree felony, see Utah Code Ann. § 76-5-404 (2008). Specifically, he argues that the trial court abused its discretion by denying his motion for severance. We reverse and remand.
*446 BACKGROUND[1]
¶ 2 Hildreth was a licensed chiropractor practicing in Utah County, Utah. In June 2007, Hildreth was charged by information with eight counts of forcible sexual abuse, see id., in connection with his conduct involving five women he treated as chiropractic patients from 2004 to 2007. Counts I and II pertained to C.W.; Counts III and IV pertained to B.B.; Count V pertained to M.W.; and Count VI pertained to A.W.[2] Prior to trial, Hildreth filed a motion requesting that the trial court sever the counts and hold a separate trial for the counts relating to each alleged victim.[3]
¶ 3 The trial court held a hearing on Hildreth's motion for severance. Ruling from the bench, the trial court denied the motion. Without determining whether a common scheme or plan existed or whether the crimes were connected in their commission, see Utah Code Ann. § 77-8a-1(1)(a)-(b) (2008), the trial court reasoned that joinder of the counts was proper because Hildreth would not be prejudiced under rule 404(b) of the Utah Rules of Evidence. Specifically, the trial court concluded that Hildreth would not be prejudiced by denying the motion for severance because under rule 404(b) "the evidence. . . as to one victim would be [ ]admissible as to the others . . . on the issue of absence of mistake, or accident, motive, mental state and plan." See generally Utah R. Evid. 404(b) (discussing when evidence of other crimes, wrongs, or acts is inadmissible). The trial court further stated that the "factors that the Court has focused upon in finding that [the evidence] is going to be admissible under 404(b)" included the following: (1) each count involved Hildreth, who "exploited a position of trust as a chiropractor"; (2) each count occurred while Hildreth was providing chiropractic care; and (3) each count happened in Hildreth's office.[4] Aside from these brief comments, the trial court did not otherwise analyze the issue of prejudice, including whether the evidence was relevant, see id. R. 401, 402, or whether the evidence would be more probative than prejudicial, see id. R. 403.
¶ 4 After the trial court denied the motion, the charges involving B.B., M.W., and A.W. remained joined with those involving C.W. and the case proceeded to trial on all those counts. All four women testified during the State's case-in-chief. Hildreth took the stand and testified in the defense's case-in-chief.
B.B.'s Testimony (Counts III and IV)
¶ 5 B.B. testified that in June or July 2006, she saw Hildreth for routine chiropractic care. During her second appointment, Hildreth had B.B. get undressed from the waist up and put on a hospital gown. After examining her spine, Hildreth had her lie down on the examination table and then lifted the gown up to her "neck area" so that her bare chest was exposed. B.B. testified that Hildreth felt down her chest and ribs on the right side and "went over the nipple." B.B. testified that after that, Hildreth "pulled [her] pants down just enough to where [her] pubic bone or hair was showing" and "proceeded to with his fingers just feel around on the pubic bone." B.B. testified that during the examination, no one else was in the room. *447 B.B. also testified that she did not say anything to Hildreth about the exam making her uncomfortable but that other chiropractors had previously done the same exam and she had "always" had her clothes on. B.B. testified that she saw Hildreth "probably 30, 40 times" after the second visit but usually had her husband with her.
¶ 6 B.B. testified that in February or March of 2007, she returned to Hildreth for another appointment. During her examination, Hildreth mentioned that he had a new ultrasound machine that could help repair the damaged muscle tissue on her back. B.B. testified that she undressed from the waist up and put on a hospital gown. After treating her with the machine, Hildreth had B.B. stand up with her back against his chest so that he could adjust a rib. B.B. testified that as Hildreth was doing the adjustment, he "reached his hand underneath [her] gown and around [her] waist so his hand was actually on [her] breast." This caused B.B. some concern because Hildreth had done this adjustment on her "probably twice" in 2006 and she had always been clothed. B.B. testified that although she went back to Hildreth four or five more times after that, he only did one more rib adjustment, after which she began telling him that she did not have time for that treatment. B.B. testified that she reported Hildreth's conduct to the police after she saw on the news that Hildreth had been arrested.
M.W.'s Testimony (Count V)
¶ 7 M.W. testified that in October 2006, she was seven months pregnant and went to see Hildreth for hip pain. M.W. testified that she remained fully clothed during her first appointment and that Hildreth adjusted her hip and then told her that he had an ultrasound machine that would repair any damage to the muscles in that area. After she sat in the chair of the machine, M.W. testified that Hildreth pulled her pants down on the side that was affected and applied the machine and some gel to her hip. M.W. testified that it made her "a little uncomfortable because [she] didn't know that was going to happen." M.W. also testified that she told Hildreth she was having pain in her shoulder blade. Hildreth had M.W. stand up and lean against him with her back to his chest. Hildreth then put his hand down M.W.'s shirt and under her bra. Hildreth's hand was "skin to skin" with the side of her breast but did not "get down to the nipple area." M.W. stated that they were alone in the examination room but that the door to the room was open. On her way out of the office that day, M.W. made a follow-up appointment.
¶ 8 M.W. testified that she saw Hildreth again the following week.[5] After the same hip adjustment and machine treatment, Hildreth offered to give M.W. a massage specifically designed for pregnant women. M.W. agreed. Hildreth took her to another room, handed her a gown, and told her to undress completely from the waist down, leaving the gown open in the front. M.W. did so. When Hildreth returned, he instructed M.W. to get on the examination table and lay down flat on her back. He then opened up the gown and tucked the bottom of her shirt up into her bra, completely exposing her naked body from the waist down. Using lotion, Hildreth then began to massage her hip and buttocks. At one point, M.W. "could feel [Hildreth] lifting up [her] back side" and "could feel [her] cheeks separating." M.W. testified that Hildreth also touched her pelvic area. M.W. "felt very, very uncomfortable" and "couldn't believe this was happening to [her]," but didn't cry out because she "just wanted it to be over." After the massage was over, Hildreth left the room and M.W. got dressed.
¶ 9 M.W. testified that although she soon thereafter reported Hildreth on a website, she did not initially go to the police because she "just wanted to let it go." However, after seeing Hildreth on the news and learning of his arrest, she finally contacted the police.
A.W.'s Testimony (Count VI)
¶ 10 A.W. testified that in the spring of 2004, she saw Hildreth one time for a chiropractic treatment that her mother had arranged for her. At the time, Hildreth had an *448 office set up in the basement of his home. A.W. testified that when she arrived at the home office, Hildreth told her to change in the bathroom and recommended that she remove her bra because it would make the adjustment easier. Hildreth also told her that it was "optional" to leave her underwear on, which she did. After changing, A.W. got on the massage table. Hildreth informed A.W. "that he was going to do some soft tissue work" and told her that he would be working on her arms, neck, shoulders, hips, and legs. A.W. testified that she consented to the treatment.
¶ 11 A.W. testified that during the course of the treatment, Hildreth "lightly brushed over" her crotch area over the top of her underwear. Initially, A.W. thought it was just "inadvertent touching," but then she felt Hildreth's "hands kind of reach a little bit to the edge of where the side of [her] crotch and [her] panties were." After his hand again "brushed" over her crotch area, A.W. testified that Hildreth's "finger slightly slid underneath" her underwear and "advanced further into the crotch of [her] panties touching [her] labia." After the massage, Hildreth then did a more typical chiropractic "adjustment." A.W. testified that at one point, Hildreth lifted the sheet covering her, exposing her bare breasts. A.W. testified that she was "100 percent sure there was nobody else in the room" and that she did not say anything to Hildreth because she was scared.
¶ 12 A.W. testified that after Hildreth was arrested, A.W.'s mother read of his arrest in the newspaper and recommended that A.W. contact the police and report the incident. A.W. acknowledged that at the time she made the police report, she stated that she thought the touching was an accident. At the time of trial, however, she testified that she "kn[ew Hildreth] had done something wrong."
C.W.'s Testimony (Counts I and II)
¶ 13 Having heard the testimony of B.B., M.W., and A.W., the jury then heard C.W.'s testimony. C.W. testified that she originally began seeing Hildreth as a patient in 2005. She testified that after she stopped seeing him as a patient, Hildreth called her and offered her a job as a part-time receptionist and chiropractic assistant. After several calls from Hildreth, C.W. accepted the position in October 2006. C.W. testified that after beginning her employment, she resumed seeing Hildreth as a patient and that Hildreth routinely treated her for problems related to her scapula.[6]
¶ 14 C.W. testified that in early May 2007, she had a bladder infection, which she mentioned at work. Shortly thereafter, during a routine examination of her scapula, Hildreth and C.W. had a conversation about the bladder infection. Specifically, C.W. told Hildreth that the bladder infection had cleared up but that she had now developed a vaginal infection. C.W. testified that Hildreth said, "`Well, let me take a look at it. You know in California chiropract[ors] are allowed to work in this area as well.'" C.W. agreed to allow him to examine her.
¶ 15 After C.W. pulled her pants down past her knees, Hildreth inspected the area and confirmed that C.W. had an infection. Hildreth then applied colloidal silver gel to C.W.'s vaginal area. C.W. testified that a few days later, Hildreth again examined her and applied colloidal gel to her vaginal area. C.W. testified that although these examinations were "uncomfortable," she did not feel Hildreth had acted inappropriately.
¶ 16 C.W. testified that at the end of the work day on Friday, May 18, 2007, Hildreth again examined her scapula. For the examination, C.W. testified that she removed her clothing from the waist up and put on a hospital gown that tied in the back. At some point, Hildreth and C.W. again discussed C.W.'s vaginal infection. C.W. lowered her pants, and Hildreth examined her vagina. C.W. testified that unlike the previous two examinations, this time when Hildreth applied the colloidal gel, he inserted his hand more fully into her vagina. In fact, C.W. testified that Hildreth's "hand was all the way up in there, and he rubbed for a longer time . . . after he put the gel in there" and that "[i]t felt like his whole hand" was inside her vagina. C.W. also testified, "[Hildreth] *449 was rubbing it this way and up and down all around in there. He just rubbed for a long time."
¶ 17 C.W. testified that at some point her hospital gown came unloose, exposing her naked body from her chest to her knees. Hildreth, who was standing next to the examination table with his right hand inside C.W.'s vagina, then began "flicking" her nipple with his left hand. C.W. did not know exactly how long this continued but testified that it was "too long." C.W. also testified that she did not cry out because she was "in shock," and that Hildreth eventually left the examination room and she got dressed. C.W. testified that over the weekend she thought about what had happened and decided to confront Hildreth.
¶ 18 The following Monday, May 21, 2007, C.W. arrived at work for her normal shift. C.W. testified that when Hildreth saw her, he asked, "`What's the matter? You look upset about something.'" C.W. testified that, at that point, she thought perhaps Hildreth had not meant the examination in "that way" and decided not to confront him. Instead, at the end of the work day, three of C.W.'s children came in for chiropractic treatments. C.W. testified that she got her children settled in different rooms on various machines and then went into the massage room and set herself up on a neck pump.
¶ 19 Hildreth came into the room with a hospital gown and told C.W. that he had time and wanted to work on her scapula. C.W. agreed. After Hildreth left the room, she removed her clothing from the waist up and put on the gown. When Hildreth came back in the room, he closed the door and pushed the massage table against the door, "barricading" the doorway. After working on her scapula, Hildreth asked to examine her vagina. C.W., who admitted she is not "the most assertive person sometimes," then testified that she did not say anything to Hildreth and lowered her pants. Hildreth examined the area and again began rubbing the colloidal gel inside her vagina. This time, he rubbed her vagina "for a really long time. . . . to the point where it hurt." C.W. testified that she told him, "`That's enough. It's starting to hurt,'" but that Hildreth continued "rubbing that whole area, especially where [her] clitoris was," and "did the inside and the outside." C.W. testified that her hospital gown had again somehow slipped off and her bare breasts were exposed. Hildreth began rubbing her breasts, and C.W. testified that she "felt like he was trying to sexually arouse [her] or something." C.W. then tried to reach for the hospital gown, but Hildreth took it away. C.W. testified that Hildreth also turned off the light and then "kept doing what he was doing."
¶ 20 C.W. testified that she did not cry out to her children in the next room and that Hildreth eventually stopped, tried to give her a hug, and left the room. When C.W. exited the room into the main office area, Hildreth asked, "`That was okay, wasn't it?'" C.W. told him "it was too much rubbing."
¶ 21 C.W. testified that she later confided in her brother, her parents, and her LDS bishop about what had been happening. She also reported Hildreth's conduct to the police and quit her job.[7]
Hildreth's Testimony
¶ 22 At trial, Hildreth took the stand during the defense's case-in-chief. He testified that he had a friendly relationship with C.W. and that he had helped her out on numerous occasionswith money, car rides, and car repairsbecause "all [his] employees were single mothers and had kids; and it wasn't unusual for [him] to help just one person out." Hildreth also testified that C.W. confided in him about her personal life, including her divorce and her finances, and that at one point, she told him that she could not afford a gynecologist.
¶ 23 Hildreth testified that in early May 2007, C.W. had been complaining in the office about a vaginal infection. Hildreth also testified that during a routine examination involving her scapula, C.W. asked him to inspect *450 her vaginal area. Although Hildreth admitted that doing such an exam was "not allowed under the Utah chiropractic guidelines" and that it was "stupid of him" to do it, Hildreth agreed to do the exam because he and C.W. "were good friends" and he "knew she couldn't afford it." Hildreth also testified that during the exam, C.W. removed her own clothing and pointed out the infection to him. After he confirmed the presence of an infection, Hildreth testified that he asked C.W. if she would like him to apply colloidal silver gel on it for her or if she would like to do it herself. Hildreth testified that C.W. told him, "`Go ahead,'" and that after placing a rubber finger cot on his finger, he applied the gel to her vagina. Hildreth testified that he conducted another similar examination a few days later, again at C.W.'s request.
¶ 24 Hildreth testified that on Friday, May 18, 2007, he performed a routine examination of C.W.'s scapula. During the examination, C.W., who had this time removed all of her clothing for the exam, again asked him to look at her vagina to see if the infection had cleared up. Hildreth testified that C.W. also asked him to see if he could "feel anything odd" on her right breast, so he checked both breasts for any lumps, even though he acknowledged that was "not in [a chiropractor's] scope of practice." Hildreth then conducted the vaginal examination and applied the gel "very thoroughly." Hildreth testified that C.W. never indicated that she was unhappy with the exam or asked him to stop.
¶ 25 Hildreth testified that the following Monday, May 21, 2007, C.W. arrived at work for her scheduled shift. At the end of the work day, C.W.'s children came to the office for treatments, and C.W. set them up in rooms on machines. Hildreth testified that he then examined C.W.'s scapula and that during this examination, he asked C.W. about her vaginal infection. Hildreth testified that C.W. again asked him to inspect it. Hildreth testified that he moved the table up against the door of the examination room "to prevent [C.W.'s] children [from] walking in on the procedure." Although the infection was "`almost gone,'" Hildreth asked her if she wanted him to apply the colloidal gel and C.W. agreed. Hildreth testified that after the exam, C.W. got up from the examination table "bare butt naked" and "didn't even put the robe up against her." Hildreth also testified that C.W. never cried out during the examination or asked him to stop. Finally, Hildreth testified that he had no intent whatsoever to sexually gratify either himself or C.W. by conducting the vaginal examinations.
¶ 26 Hildreth also testified about his examinations of B.B. Hildreth testified that he palpated B.B.'s ribs "skin-to-skin" during a chest examination because he had been taught to do the examination that way while in chiropractic school. He also testified that he performed a standing chest adjustment skin-to-skin according to his training because it avoided "slippage," which could cause her injury. Hildreth also acknowledged that it was possible that he could unintentionally touch the nipple during the procedure. Hildreth also testified that he lowered B.B.'s pants to her pubic bone because he was examining her Psoas muscle and it was necessary to get all of the clothing out of the way to avoid discomfort to the patient. Hildreth also testified that B.B. consented to the procedures and never objected in any way. Finally, Hildreth testified that he had no intent to sexually gratify himself or B.B. in conducting the examinations.
¶ 27 Hildreth also testified regarding his examinations of M.W. Again, he testified that he had performed the standing chest adjustment skin-to-skin according to his chiropractic training. Hildreth also testified that he had performed a pregnancy massage on M.W. because there are limited procedures available to pregnant women. Hildreth testified that during the massage, M.W. was not exposed from the waist down; rather, Hildreth testified that he "made sure [M.W.] had a double gown on her" but acknowledged it was "very possible" the gown could have slipped off. Finally, Hildreth testified that M.W. consented to the pregnancy massage and "[a]bsolutely" did not complain while he was conducting the examination.
¶ 28 As to A.W., Hildreth testified that he performed a chiropractic massage for her in the spring of 2004. Hildreth testified that during the massage, A.W. was unclothed except *451 for her underwear, and that they were not alone but that "[t]here w[ere] many people in and out of the room." Hildreth further testified that it was possible that the "side of [his] hands or something" could have "bumped into" A.W.'s vaginal area during the massage but that he did not intentionally touch her in an inappropriate manner. Hildreth also testified that A.W. consented to the full body massage, that she told him it felt "really good," and that she gave him no indication "whatsoever" that she was uncomfortable with what he was doing. Finally, Hildreth testified that he had no intent to sexually arouse either himself or A.W. during the massage.
¶ 29 At the conclusion of the trial, the jury convicted Hildreth of Counts I and II, for his conduct relating to C.W., but acquitted him of Counts III through VI for his conduct relating to B.B., M.W., and A.W. Hildreth now appeals his convictions relating to C.W., arguing that the trial court erred by denying his motion for severance. We reverse and remand.
ISSUE AND STANDARD OF REVIEW
¶ 30 Hildreth contends that the trial court erred in denying his motion for severance.
[T]he grant or denial of severance is a matter within the discretion of the trial judge, so we reverse [a denial] only if the trial judge's refusal to sever charges is a clear abuse of discretion in that it sacrifices the defendant's right to a fundamentally fair trial. Under [the abuse of discretion] standard, we will not reverse . . . unless the decision exceeds the limits of reasonability.
State v. Balfour, 2008 UT App 410, ¶ 10, 198 P.3d 471 (alterations and omission in original) (citation and internal quotation marks omitted).
ANALYSIS
I. Severance of Charges
¶ 31 Hildreth argues that the trial court abused its discretion in denying his motion to sever. Utah Code section 77-8a-1 allows the joinder of offenses and defendants if certain criteria are met. See Utah Code Ann. § 77-8a-1 (2008). More specifically, that section provides,
(1) Two or more felonies, misdemeanors, or both, may be charged in the same indictment or information if each offense is a separate count and if the offenses charged are:
(a) based on the same conduct or are otherwise connected together in their commission; or
(b) alleged to have been part of a common scheme or plan.
. . . .
(4)(a) If the court finds a defendant or the prosecution is prejudiced by a joinder of offenses or defendants in an indictment or information or by a joinder for trial together, the court shall order an election of separate trials of separate counts, grant a severance of defendants, or provide other relief as justice requires.
Id. § 77-8a-1(1), (4)(a). "Thus, joinder of multiple offenses is appropriate if the requirements of Utah Code section 77-8a-1(1) are met and neither the defendant nor the prosecution is prejudiced as a result of the joinder." Balfour, 2008 UT App 410, ¶ 18, 198 P.3d 471. As discussed in more detail below, we conclude that the trial court erred in denying Hildreth's motion to sever because the charges were neither connected in their commission nor part of a common scheme or plan.
A. The Alleged Crimes Were Unconnected in Their Commission.
¶ 32 Hildreth argues that the charges do not satisfy section 77-8a-1(1)(a) because they were not connected in their commission.[8] While the case law in Utah construing this language is limited, as a general rule, charges are connected in their commission when there is a "direct relationship" between them, often because the conduct resulting in one charge was "precipitated" by conduct resulting in another charge. See *452 State v. Scales, 946 P.2d 377, 385 (Utah Ct.App.1997) (holding that the theft and murder charges were connected in their commission where defendant's purpose in stealing the car and firearms was to facilitate his flight from the scene of the murder). Charges are also connected where one crime is committed in an effort to conceal another or previous crime. See State v. Smith, 927 P.2d 649, 653 (Utah Ct.App.1996) (concluding that the evidence tampering and manslaughter charges were sufficiently connected for purposes of section 77-8a-1(1)(a) where the defendant threw the drug paraphernalia in the trash can to conceal the illegal drug activities that caused him to be charged with manslaughter). But such is not the case here. Other than the fact that all of the conduct was committed by Hildreth, the charges were not directly related to one another. Moreover, none of the charges was precipitated by the commission of the others, nor were any of the charges committed in an attempt to conceal the others. Accordingly, we conclude that the charges were not connected in their commission as contemplated by section 77-8a-1(1)(a), see Utah Code Ann. § 77-8a-1(1)(a).
B. The Crimes Were Not Part of a Common Scheme or Plan.
¶ 33 Hildreth also argues that the trial court erred in denying his motion to sever because the charges were not part of a common scheme or plan. "`[T]o be classified as a common plan or scheme it is not necessary for the crimes to have been perpetrated in an absolutely identical manner, so long as the court perceives a visual connection between the . . . crimes.'" Balfour, 2008 UT App 410, ¶ 20, 198 P.3d 471 (alteration in original) (additional internal quotation marks omitted) (quoting State v. Lee, 831 P.2d 114, 117 (Utah Ct.App.1992)). Thus, while absolutely identical conduct is not required, "striking similarities" in the conduct more readily supports a determination that the conduct occurred as part of a common scheme or plan. See Lee, 831 P.2d at 118; cf. State v. Nelson-Waggoner, 2000 UT 59, ¶¶ 3, 29, 6 P.3d 1120 (concluding, in the context of rule 404(b) analysis, that "there were significant and striking similarities in the manner in which [the] defendant carried out [several rapes]" where defendant had invited each victim to his room on a pretense; worn clothing that could be easily removed; locked the door before each rape; requested that each victim kiss his body before he raped her; used the same highly unusual and confining sexual position during the commission of the rapes; and told each victim to "enjoy the moment" or to stop "ruining a beautiful thing" (emphasis added)).
¶ 34 Furthermore, "[t]his court has interpreted the phrase `common scheme or plan' to apply when the crimes involve a similar fact pattern and proximity in time." Balfour, 2008 UT App 410, ¶ 20, 198 P.3d 471 (emphasis added). Accordingly, the facts and the timing of the incidents should be considered in their totality, that is, factual similarities should be viewed in light of their temporal proximity to one another. See id.; see also Lee, 831 P.2d at 118 (holding that "the striking similarities . . . in each incident, coupled with the proximity in time of the offenses, supplied a sufficient basis for the trial court to conclude that the crimes were alleged to have been part of a common scheme or plan" (emphasis added) (internal quotation marks omitted)); cf. United States v. Drew, 894 F.2d 965, 970 (8th Cir. 1990) ("[P]roximity in time combined with similarity in type of crime virtually guarantees admittance of prior bad acts evidence. . . ." (emphasis added)); Nelson-Waggoner, 2000 UT 59, ¶ 29, 6 P.3d 1120 (considering the combination of the "significant and striking similarities" as well as the "brief ten week[]" period between the crimes in conducting 404(b) analysis).
¶ 35 We conclude that under these rules, the facts of this case do not demonstrate the existence of a common scheme or plan. C.W. testified that in May 2007, Hildreth penetrated her vagina with his "whole hand" on two separate occasions; that he rubbed her vaginal area, including her clitoris, for "too long," until it began to hurt; that he simultaneously touched her bare breasts and "flicked" her nipple; that she told him to stop but he continued anyway; that he barricaded the door to the examination room on one occasion; and that she felt Hildreth was trying to *453 sexually arouse her. In contrast, B.B. testified that in June or July 2006, Hildreth exposed her naked body from the waist up and that as he was palpating her rib cage, his fingers "went over [her] nipple"; that he pulled her pants down "enough to where her pubic bone or hair was showing" and felt around her pubic bone; and that in a subsequent examination, some seven to nine months later, Hildreth put his hand underneath her gown and touched her breast skin-to-skin. M.W. testified that during an examination in October 2006, she remained fully clothed but that Hildreth had put his hand under her shirt and bra and had touched the side of her breast skin-to-skin, not quite to her nipple area; that the following week, Hildreth exposed her from the waist down, massaging her stomach and buttocks; and that during the massage, she "could feel [him] lifting up [her] back side" and "could feel [her] cheeks separating." Finally, A.W. testified that during a chiropractic massage in spring 2004, Hildreth had "lightly brushed" her crotch area and also touched her labia under her underwear.
¶ 36 Aside from the fact that Hildreth was all of the women's chiropractor and that all of the conduct occurred during the course of treatment while the women were alone with him, there are too many variations in the circumstances and conduct to conclude that there is a "parallel fact pattern . . . [that] plainly demonstrates the existence of a calculated plan," see Lee, 831 P.2d at 118.[9] Given that the incidents involved different body parts, different levels of undress and possibly unnecessary exposure, and different types of touchingfrom light brushing and massage to vigorous rubbing and actual penetration we cannot say that there are striking similarities in Hildreth's conduct with each woman. See State v. Balfour, 2008 UT App 410, ¶ 30, 198 P.3d 471 (concluding that no common scheme or plan existed as to one of the complainants because, among other factors, she alleged that the defendant had rubbed his naked penis against her covered vagina, while the other women alleged only that defendant had touched their breasts).
¶ 37 Our conclusion is underscored when Hildreth's conduct is viewed in light of the lack of temporal proximity of the events. See id. ¶¶ 28-30 (refusing to "interpret . . . temporal proximity so broadly" as to include an incident involving one woman that took place sixteen months before the incidents involving the other women); Lee, 831 P.2d at 118 (concluding that, where the two criminal offenses occurred only five days apart, "[t]he striking similarities, coupled with the proximity in time of the offenses," justified the trial court's determination that the crimes were part of a common scheme or plan (emphasis added)). Here, the incidents occurred in May 2007 (C.W.), October 2006 (M.W.), June or July 2006 and February or March 2007 (B.B.), and 2004 (A.W.). While the relatively short time differences between the incident involving C.W. and the incidents involving M.W. and B.B. present a closer call,[10] we are obliged to "resolve the issue in favor of assuring the defendant a fair trial." Balfour, 2008 UT App 410, ¶ 31, 198 P.3d 471.
"[C]are must be taken that [Utah Code section 77-8a-1] is not misused to deprive an accused of a fair trial upon an offense by joining different offenses so that evidence concerning charges unrelated in time and nature . . . could be admitted as to the multiple offenses in an effort to stigmatize the defendant and thus make it questionable that the jury would give a fair *454 and dispassionate consideration to the evidence on the first charge."
Id. (second alteration and omission in original) (quoting State v. Gotfrey, 598 P.2d 1325, 1328 (Utah 1979)). Accordingly, we conclude that Hildreth's conduct did not constitute a common scheme or plan under Utah Code section 77-8a-1(1)(b). Because we have determined that the charges in this case were unconnected in their commission, see Utah Code Ann. § 77-8a-1(1)(a) (2008), and not part of a common scheme or plan, see id. § 77-8a-1(1)(b), we conclude that the trial court exceeded its permissible range of discretion in denying Hildreth's motion for severance.
¶ 38 The severance statute further provides,
If the court finds a defendant or the prosecution is prejudiced by a joinder of offenses or defendants in an indictment or information or by a joinder for trial together, the court shall order an election of separate trials of separate counts, grant a severance of defendants, or provide other relief as justice requires.
Id. § 77-8a-1(4)(a). See generally State v. Scales, 946 P.2d 377, 385 (Utah Ct.App.1997) ("If we determine that the offenses either were connected together in their commission or were alleged to be part of a common scheme or plan, we must then examine whether the trial court complied with subsection (4)(a)."). Although we have determined that joinder was improper here, in cases where it has been determined joinder was proper and the defendant claimed prejudice under subsection (4)(a) of the severance statute, we have equated prejudice with whether the evidence would have properly come in anyway under rule 404(b) of the Utah Rules of Evidence, see Utah R. Evid. 404(b). Stated another way, an otherwise proper joinder of multiple charges is prejudicial if evidence of the other bad acts would not have been admissible in a separate trial. See, e.g., State v. Mead, 2001 UT 58, ¶¶ 58-59, 27 P.3d 1115. Here, the State argues that such analysis is equally appropriate.
II. Rule 404(b) Analysis
¶ 39 Under rule 404(b) of the Utah Rules of Evidence, evidence of a defendant's prior bad acts is not admissible to show that he or she acted in conformity with the bad behavior. See Utah R. Evid. 404(b). Rule 404(b) does, however, allow for admission of prior bad acts evidence "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. "Thus, `evidence . . . offered under [rule] 404(b)[ ] is admissible if it is relevant for a non-character purpose and meets the requirement of Rules 402 and 403 [of the Utah Rules of Evidence].'" State v. Marchet, 2009 UT App 262, ¶ 28, 219 P.3d 75 (alterations and omission in original) (quoting Utah R. Evid. 404(b) advisory comm. note), cert. denied, 221 P.3d 837 (Utah 2009).
¶ 40 Whether testimony regarding prior bad acts is admissible requires a three-part analysis. The first inquiry is "whether the bad acts evidence is being offered for a proper, noncharacter purpose, such as one of those specifically listed in rule 404(b)." State v. Nelson-Waggoner, 2000 UT 59, ¶ 18, 6 P.3d 1120; see also Marchet, 2009 UT App 262, ¶ 29, 219 P.3d 75. "If the purpose is deemed proper, `the court must [next] determine whether the bad acts evidence meets the requirements of rule 402, which permits admission of only relevant evidence.'" Marchet, 2009 UT App 262, ¶ 29, 219 P.3d 75 (alteration in original) (quoting Nelson-Waggoner, 2000 UT 59, ¶ 19, 6 P.3d 1120). Finally, "the court must analyze the evidence in light of rule 403 to assess whether its probative value is substantially outweighed by the risk of unfair prejudice to the defendant." Id.
A. Proper Noncharacter Purpose
¶ 41 The rebuttal testimony of B.B., M.W., and A.W. would be admissible in a separate trial for a proper, noncharacter purpose under rule 404(b), namely, to show Hildreth's intent and absence of accident. At trial, Hildreth specifically testified that he did not intend to arouse or sexually gratify himself *455 or the women during the examinations.[11] Thus, the evidence from all three women would be admissible to respond to or rebut that testimony for the noncharacter purposes of showing Hildreth's intent. Moreover, while Hildreth's defense during his case-in-chief was that the women consented to his conduct, Hildreth also claimed that at least as to B.B. and A.W., any improper touching could have been inadvertent. Thus, the evidence from B.B. and A.W. would also be admissible to rebut that testimony for the noncharacter purposes of showing absence of an accident. Cf. State v. Fedorowicz, 2002 UT 67, ¶ 30, 52 P.3d 1194 (concluding that the defendant had raised the defense of accident "despite not affirmatively presenting that defense in his case-in-chief" where he had told investigators that the child was injured accidentally and also questioned the State's witnesses about the possibility of accidental injury). The evidence would therefore be admissible for a proper noncharacter purpose.
B. Relevance Under Rules 401 and 402
¶ 42 Like all evidence, prior bad acts evidence must be relevant or it is inadmissible. See Utah R. Evid. 402. Relevant evidence is broadly defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. R. 401. In this case, the rebuttal evidence regarding B.B., M.W., and A.W. is relevant because it tended to show Hildreth's intent. It is therefore relevant and admissible under rules 401 and 402.
C. Prejudicial Versus Probative Value Under Rule 403
¶ 43 Rule 403 of the Utah Rules of Evidence provides, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id. R. 403. In State v. Shickles, 760 P.2d 291 (Utah 1988), the Utah Supreme Court outlined several guiding factors to be considered in balancing the probative value of bad acts evidence against its prejudicial effect. See id. at 295-96. These Shickles factors include the following:
[ (1) ] the strength of the evidence as to the commission of the other crime, [ (2) ] the similarities between the crimes, [ (3) ] the interval of time that has elapsed between the crimes, [ (4) ] the need for the evidence, [(5)] the efficacy of alternative proof, and [ (6) ] the degree to which the evidence probably will rouse the jury to overmastering hostility.
Id.
¶ 44 We conclude that, on balance, the Shickles factors weigh in favor of exclusion of the prior bad acts evidence. First, the strength of the evidence involving B.B., M.W., and A.W. is relatively weak, particularly given that Hildreth was acquitted of those charges, thus undercutting the credibility of the women's testimony. Cf. Nelson-Waggoner, 2000 UT 59, ¶ 31, 6 P.3d 1120 (acknowledging that while the victim's prior bad acts testimony was not necessarily inadmissible, it "was suspect because defendant had already been acquitted of the alleged rape to which she testified" (emphasis added)). Second, as discussed in Part I, the prior bad acts are not sufficiently similar to the conduct involving C.W. Third, the interval of time that had elapsed between the prior bad acts and the incident involving C.W. is fairly lengthy.[12]But see State v. Marchet, 2009 UT App 262, ¶ 45, 219 P.3d 75 (upholding the trial court's decision that two-year time difference between another bad act and alleged crime was sufficiently proximate to warrant admission). With respect to the final factor, the cumulative prior bad acts evidence may have the tendency to suggest a verdict on an improper, emotional basis.
*456 ¶ 45 The other two Shickles factorsfactors four and fivetend to weigh in favor of admission of the prior bad acts evidence. Particularly, given that the incident involving C.W. is a "he said/she said" situation, there would be a need for the prior bad acts evidence. See Nelson-Waggoner, 2000 UT 59, ¶ 30, 6 P.3d 1120 (stating that "the need for the bad acts evidence was great" where the defense was consent and the trial involved a "contest of credibility" between the accuser and the accused). Moreover, "no alternative evidence regarding consent exist[s] other than [C.W.]'s and [Hildreth]'s directly conflicting testimonies." See id.[13]
¶ 46 On balance, however, the majority of the Shickles factors weigh in favor of exclusion of the prior bad acts evidence. Moreover, given the nature of the State's case vis-a-vis C.W., we conclude that any possible probative value of the evidence would be substantially outweighed by the danger of unfair prejudice to Hildreth. Because we conclude that all of the prior bad acts evidence would not properly come in at a trial on the charges concerning only C.W., we readily conclude there was prejudice, as defined in the severance statute. On that basis, we reverse and remand for a new trial on the charges relating to C.W.
CONCLUSION
¶ 47 We conclude that the trial court exceeded its permissible range of discretion in denying Hildreth's motion for severance and that Defendant was prejudiced thereby. Accordingly, we reverse Hildreth's convictions and remand for a new trial. On remand, the prior bad acts evidence relating to B.B., M.W., and A.W. should be excluded.
¶ 48 I CONCUR: GREGORY K. ORME, Judge.
McHUGH, Associate Presiding Judge (concurring in the result):
¶ 49 I agree that the pretrial severance motion should have been granted and that Hildreth is entitled to a new trial. Because my analysis with respect to the new trial issue is different than that of the lead opinion, I write separately.
¶ 50 I agree with the lead opinion that the offenses related to C.W. were not connected to or part of a common scheme or plan with the charges related to the other women. Thus, I also agree that because the charges are not connected or part of a common scheme, our error analysis is complete and we need not consider prejudice in connection with that question, see generally Utah Code Ann. § 77-8a-1(4)(a) (2008) (requiring the court to hold separate trials if joinder will prejudice the prosecution or the defense will be prejudiced, even if joinder would otherwise be permissible under the statute); State v. Balfour, 2008 UT App 410, ¶¶ 30-31 & n. 11, 198 P.3d 471 (holding, without considering prejudice, that the trial court erred in denying the defendant's motion to sever where there was no connection between or common scheme or plan involving the charges); State v. Scales, 946 P.2d 377, 385 (Utah Ct.App.1997) ("If we determine that the offenses either were connected together in their commission or were alleged to be part of a common scheme or plan, we must then examine whether the trial court complied with subsection [77-8a-1](4)(a).").
¶ 51 However, this case comes to us after the charges were improperly joined at trial and Hildreth was convicted only on those charges arising out of the allegations of C.W. Thus, in determining whether a new trial is warranted, we must decide whether the trial court's erroneous decision to try the charges together was harmless or prejudicial. See State v. Calliham, 2002 UT 86, ¶ 34, 55 P.3d 573 ("Any error in denying severance will be deemed harmless unless [the] defendant can `establish a reasonable likelihood of a more favorable outcome if the court had granted a severance.'" (quoting State v. Ellis, 748 P.2d 188, 190 (Utah 1987))). Hildreth argues that he was prejudiced because the testimony of B.B., M.W., and A.W. negatively impacted the jury's view of the evidence relating to C.W.'s allegations. However, if the testimony *457 of the other women would have been admitted anyway, even if the charges related to C.W. had been severed from the others, Hildreth's argument fails. Thus, to assess Hildreth's claim of prejudice, I engage in virtually the same analysis as required under subsection 77-8a-1(4)(a) of the severance statute, see Utah Code Ann. § 77-8a-1(4)(a). This analysis focuses on whether the testimony related to the other charges would have been admissible as other bad acts under rule 404(b) of the Utah Rule of Evidence in a trial limited to the offenses related to C.W.
¶ 52 In implementing that three-part analysis, see supra ¶ 40, I agree with the majority that the evidence was offered for proper purposes and was relevant. With respect to the third part of the 404(b) analysis, whether the probative value of the evidence was outweighed by unfair prejudice under rule 403, I first note that there is little indication in the record that the trial court considered the applicable factors identified in State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988), see supra ¶ 43, let alone that it "scrupulously examined" them, see State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120 (internal quotation marks omitted). Thus, I undertake that analysis in the first instance on appeal to evaluate whether the error here was prejudicial. In weighing those factors, I agree that B.B. and A.W.'s testimony would have been excluded but conclude that M.W.'s testimony would have been admitted under rule 404(b).
¶ 53 Starting with the application of the Shickles factors to the testimony of M.W., the fact that she reported her concerns about Hildreth on a website immediately after her second visit bolsters the strength of her allegations, although apparently not enough to convince the jury. I would resolve this Shickles factor as weighing slightly in favor of the State. Hildreth's touching of C.W.'s vaginal area is more disturbing than M.W.'s report that Hildreth touched her breast during the first visit and that he touched her buttocks during the second visit. However, both with C.W. and with M.W., Hildreth used the chiropractic setting to touch body parts traditionally considered relevant to sexual gratification, see Utah Code Ann. § 76-5-404 (2008) (providing that a person is guilty of forcible sexual abuse if the victim is fourteen or older and "the actor touches the anus, buttocks, or any part of the genitals of another, or touches the breast of a female," under certain defined circumstances). Therefore, I would weigh the similarity factor as balancing somewhat in favor of the State on this issue. Because M.W. saw Hildreth in October of 2006, seven months prior to his first touching of C.W.'s vagina, I would evaluate the temporal proximity as neutral. As to the fourth and fifth factors, I agree with the lead opinion that there was a need for the evidence and that alternative evidence was not available. Last, because C.W.'s allegations are more shocking than M.W.'s, I conclude that M.W.'s testimony would not arouse the jury to overmastering hostility. On balance, I conclude that M.W. would have been permitted to testify under rule 404(b) in a trial limited to the charges related to C.W.'s allegations.
¶ 54 With respect to B.B., I agree with the majority that her allegations were not strong. B.B. visited Hildreth thirty to forty times after the alleged first incident and four or five times after the second, and did not make a complaint about his conduct until she heard that he had been arrested. Indeed, these facts may have affected the jury's decision to acquit Hildreth on these charges. I also agree that the behavior described by C.W. was much more intrusive than that described by B.B. This is particularly evident with respect to the first incident, where although Hildreth pushed B.B.'s pants down to where her pubic hair was barely showing, he touched her only above her panties in the pubic bone area. The second incident, where Hildreth allegedly touched B.B.'s breast during a rib cage adjustment, is also not as disturbing as Hildreth's admitted examination and touching of C.W.'s vagina. Although, like the testimony of M.W., it describes the use of a medical setting to obtain access to a part of the body traditionally associated with sexual gratification, see Utah Code Ann. § 76-5-404, the alleged touching was fleeting. Therefore, I would weigh the Shickles similarity factor as neutral with respect to the second incident but against the State as to the first. Further, although the *458 first incident allegedly happened in the summer of 2006, M.W. claimed that the second incident occurred in March 2007, only two months before Hildreth's first examination of C.W.'s vagina in May 2007. Consequently, I would resolve the temporal proximity issue in favor of the State on the second incident, but against the State on the first. Because I conclude that M.W.'s testimony should have been admitted, I would resolve the Shickles factors concerning the need for the evidence and the availability of alternative evidence against the State. Finally, where the allegations of C.W. were much more shocking, I conclude that B.B.'s allegation that Hildreth touched her breast under her gown during the second incident would not rouse the jury to overmastering hostility. Based on my analysis of the proper balance of the Shickles factors under the circumstances, I conclude that B.B.'s testimony would not have been admissible under rule 404(b).
¶ 55 A.W. reported her concerns to her mother immediately after her only appointment with Hildreth, but she did not contact the authorities because Hildreth was a family friend and A.W.'s conversation with her mother convinced A.W. that she must have been mistaken about Hildreth's intentions. However, this evidence was not strong enough to convince the jury to convict Hildreth on this charge. On balance, I would resolve this Shickles factor as not weighing in favor of either party. A.W.'s allegation that Hildreth used his position as her chiropractor to touch her labia is similar to, although not as intrusive as, C.W.'s allegation that Hildreth used his medical status to insert his finger into her vagina and, therefore, weighs in favor of the State. Because A.W. saw Hildreth in the spring of 2004, three years before the first incident involving C.W., the interval of time between the two incidents weighs against the State. Likewise, M.W.'s testimony, which I conclude would be admitted, could be used for the same proper purposes as the testimony of the other accusers, thereby reducing the need to also introduce A.W.'s testimony. Moreover, there is danger that A.W.'s testimony might create hostility with the jury, even though her allegations do not actually involve digital penetration. C.W. was an adult woman who allowed her own children to see Hildreth professionally after the acts of which she complains. Although Hildreth was C.W.'s employer, their relationship had some unusual components, which included visits by Hildreth to C.W.'s home, as well as his provision of car maintenance and other support. In contrast, A.W. was a young woman whose mother made her appointment with Hildreth and who knew him as a trusted family friend. Considering all of the Shickles factors in the context of this case, I would conclude that A.W.'s testimony would not have been admitted under rule 404(b).
¶ 56 Although my application of the rule 403 analysis convinces me that M.W. would have been permitted to testify in a separate trial on the charges related to C.W., I agree with the lead opinion that Hildreth has established a "`reasonable likelihood of a more favorable outcome if the court had granted a severance.'" See State v. Calliham, 2002 UT 86, ¶ 34, 55 P.3d 573 (quoting State v. Ellis, 748 P.2d 188, 190 (Utah 1987)). This case presented a contest of credibility between Hildreth and C.W. In addition, C.W.'s conduct in allowing her chiropractor to apply vaginal gel is highly unusual; the nature of the relationship between C.W. and Hildreth was uncertain; and C.W. continued to see Hildreth as a patient after the first incident, allowing him to apply gel to her vagina again. These and other circumstances of this case convince me that there is a reasonable likelihood that the result might have been different absent the testimony from B.B. and A.W., even assuming M.W. was permitted to testify. Consequently, I concur that Hildreth is entitled to a new trial.
NOTES
[1] "In reviewing a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict. We recite the facts accordingly." State v. Shepherd, 1999 UT App 305, ¶ 2, 989 P.2d 503 (internal quotation marks omitted).
[2] Counts VII and VIII pertained to conduct involving T.W. The trial court severed these counts because T.W. was unavailable to testify at trial, and the court ultimately dismissed the counts without prejudice. No evidence relating to the dismissed counts was admitted into evidence at Hildreth's trial.
Hildreth was also charged with witness tampering, see Utah Code Ann. § 76-8-508 (2008), in connection with T.W. This charge was also dismissed without prejudice, and Hildreth does not challenge any aspect of this charge on appeal.
[3] Hildreth conceded that Counts I and II (C.W.) were properly joined but argued that those counts should be severed from the remaining counts; conceded that Counts III and IV (B.B.) were properly joined but argued that they should be severed from the other counts; and argued that Count V (M.W.) and Count VI (A.W.) should each be tried separately.
[4] Count VI occurred at Hildreth's home, which at the time, he used as his office.
[5] The follow up appointment was also in October 2006.
[6] The scapula is also known as the shoulder blade.
[7] The examinations on Friday, May 18, 2007, and Monday, May 21, 2007, were the basis of the two counts against Hildreth related to C.W. Hildreth was never charged in connection with the prior two examinationswhere C.W. felt uncomfortable but did not feel Hildreth acted inappropriately.
[8] Hildreth limits his argument to the "otherwise connected in their commission" language of section 77-8a-1(a), and we limit our analysis accordingly.
[9] And we cannot say that using a position of trust to gain access to a victim or physically isolating an individual in order to commit an assault are facts that are particularly unusual in the context of sexual assault cases generally. See State v. Cox, 787 P.2d 4, 6 (Utah Ct.App.1990) (noting that the similarities in the case "are common to many assault or rape cases and are not peculiarly distinctive of [the] defendant's conduct" where the defendant knew each victim, committed the assaults when the victims were isolated, laid on top of the victims, and left the premises after the assaults were over).
[10] Where the conduct involving A.W. occurred a full three years before the conduct relating to C.W., and over two years prior to the conduct involving B.B. and M.W., it was clearly not a part of a common scheme or plan. See State v. Balfour, 2008 UT App 410, ¶ 30, 198 P.3d 471 (concluding that no common scheme or plan existed as to one count where, inter alia, the underlying conduct occurred sixteen months before the conduct underlying the other counts).
[11] The forcible sexual abuse statute under which Hildreth was charged requires that he acted "with the intent . . . to arouse or gratify the sexual desire of any person." Utah Code Ann. § 76-5-404 (2008).
[12] This is undoubtedly true as to A.W. because the incident involving her occurred a full three years prior to the C.W. incident.
[13] We note, however, that in sexual assault cases where the defense is that the victim "consented," this will almost always be the case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262596/ | 83 Cal.Rptr.2d 777 (1999)
71 Cal.App.4th 483
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Petitioner,
v.
The SUPERIOR COURT of Riverside County, Respondent;
Mary M. et al., Real Parties in Interest.
No. E023977.
Court of Appeal, Fourth District, Division Two.
March 17, 1999.
*778 William Katzenstein, County Counsel, and Lisya McGuire, Deputy County Counsel, for Petitioner.
No appearance for Respondent.
Janet C. Michaels for Real Parties in Interest.
OPINION
WARD, J.
Petitioner, the Department of Public Social Services of Riverside County (DPSS) seeks a writ of mandate to compel respondent, the superior court, to vacate its order requiring DPSS to provide reunification services to real party in interest Mary M. (Mother) with respect to her son Russell.[1] We find that Mother is presumptively ineligible for services; we reverse the order and remand for further proceedings consistent with this opinion. This decision is based on our conclusion that if a parent's parental rights have been severed as to another child, it is immaterial that the severance occurs after the dependency petition is filed with respect to the subject minor. So long as the severance occurs before the dispositional hearing with respect to the subject minor, services may be denied to the parent.
STATEMENT OF FACTS
A simplified history of the case is all that is required.[2] The minor, Russell M., was born on March 16, 1998, and a dependency petition was filed under Welfare and Institutions Code section 300[3] three days later. In the petition, DPSS alleged that Russell was at risk because his two older siblings were currently dependent children of the court and *779 the parents had failed to correct health and safety hazards in the home. It was also alleged that Mother had not participated in a drug treatment and testing program, evidently as ordered in the existing dependency proceeding.
At a hearing on September 9, 1998, the court made true jurisdictional findings as to Russell. The dispositional part of the proceedings was continued first to October 1, 1998, and then subsequently to October 23.
The crux of this case is that at the September 9 hearing, the trial court also held a selection and implementation hearing for Mother's oldest child, Rosemary, with whom she had failed to reunify. At that time, the trial court terminated Mother's parental rights, and a permanent plan of adoption was selected for Rosemary. (§ 366.26, subd. (b)(1).) The trial court also held a 12-month review hearing as to Mother's second child, Rochelle, and terminated reunification services as to her. (§ 366.21, subd. (f).)[4] A selection and implementation hearing was calendared for Rochelle.
When the dispositional hearing was held for Russell in October, DPSS took the position that services should be denied to Mother under two separate provisions of the code. With respect that services should be denied due to Mother's current incarceration[5] pursuant to section 361.5, subdivision (e), DPSS does not contest the trial court's refusal to deny services based on this section.[6] However, DPSS also asked the court to deny services under section 361.5, subdivision (b)(10), and urges on this petition that the trial court erred in finding that the statute did not apply.
DISCUSSION
As a rule, the trial court's selection of a dispositional order for a minor is reviewed only for abuse of discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006, 57 Cal.Rptr.2d 861.) However, this deferential standard of review does not apply if the trial court plainly misapplies the law.
Section 361.5, subdivision (b) provides that reunification services "need not" be provided to a parent who falls into any of several categories. Among them is subdivision (b)(10), which applies to a parent as to whom "(A) a permanent plan of adoption, guardianship, or long-term foster care" has been ordered for any child after "the parent ... failed to reunify ... after the [child] had been removed from that parent ... pursuant to Section 361 ... or (B) the parental rights of a parent ... over any [child] had been permanently severed, and that, according to the findings of the court, this parent ... has not subsequently made a reasonable effort to treat the problems that led to removal of the [child]...." The issue raised by this petition is whether subdivision (b)(10) applies to a parent whose placement within the statute depends on judicial activity which occurs after the current child is detained. The trial court held that because Mother's rights to Rosemary had not been terminated until after Russell was detained, subdivision (b)(10) did not apply to her.
We disagree.
First, we must discuss the authority cited by DPSS, In re Joshua M. (1998) 66 Cal. App.4th 458, 78 Cal.Rptr.2d 110. In that case, the appealing father argued that subdivisions (b)(10) and (12)[7] of section 361.5 could not be applied to him with respect to conduct which occurred before those subdivisions were enacted. As relevant to subdivision (b)(10), the father in Joshua M. had had *780 his parental rights terminated as to an older child in 1992, while the current proceedings were held in 1997. The court had no difficulty determining that the cited provisions were intended "to be triggered by prior dependency proceedings or other events occurring before these provisions were enacted." (66 Cal. App.4th at p. 469, 78 Cal.Rptr.2d 110.) Aptly analogizing to authority applying the "Three Strikes Law" (Pen.Code, § 667, subds.(b)-(i)) to convictions occurring before its enactment (see e.g. People v. Reed (1995) 33 Cal.App.4th 1608, 1611-1612, 40 Cal.Rptr.2d 47), the court noted that the effectiveness of the new denial-of-services rules would be delayed and impeded substantially if they could only be applied to conduct occurring after their enactment.[8]
This case does not involve a true retroactivity issue and Joshua M. is not directly on point. However, the discussion in that case contains valuable points which direct our analysis.
We recognize that there has long been a presumption that parents would receive reunification services. Section 361.5, in fact, begins in subdivision (a) by providing that services shall be provided unless the parent or parents fall into one of the carefully-described exceptions in subdivision (b). In In re Luke L. (1996) 44 Cal.App.4th 670, 678, 52 Cal.Rptr.2d 53, the court commented that "[i]t is difficult, if not impossible, to exaggerate the importance of reunification in the dependency system."[9] However, public resources are not infinite, and although courts have traditionally enforced the obligation to provide services "in spite of the difficulties of doing so or the prospects of success" (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777, 8 Cal.Rptr.2d 416), it is also now recognized that "it may be fruitless to offer reunification services under certain circumstances." (In re Rebecca H. (1991) 227 Cal. App.3d 825, 837, 278 Cal.Rptr. 185.) That is to say, the courts have recognized that the Legislature has made the decision that in some cases, the likelihood of reunification is so slim that scarce resources should not be expended on such cases.[10] If the language of the statute permits it, obviously we should adopt a construction which is in accordance with the legislative intent (People v. Jenkins (1995) 10 Cal.4th 234, 246, 40 Cal.Rptr.2d 903, 893 P.2d 1224) and enhances the ostensible objects to be achieved. (Conway v. City of Imperial Beach (1997) 52 Cal.App.4th 78, 85, 60 Cal.Rptr.2d 402.)
Here, there is no impediment to a construction of subdivision (b)(10) which permits its application to a parent whose rights to another child are terminated after the subject child is detained but before a disposition of that minor is made. The premise for the subdivision is clear: that a parent who has failed in one course of reunification services, or who has suffered the drastic step of termination of parental rights, is unlikely to succeed with a new round of services. (See In re Baby Boy H., supra, 63 Cal.App.4th at p. 478, 73 Cal.Rptr.2d 793.) The reasonableness of this premise is buttressed by the fact that subdivision (b)(10) does not have any effect unless the state had found it necessary to make the subject minor a dependent child too. Thus, built into the statute is not only one prior completed parental failure, but a new, additional parental failure to provide adequate care. With this in mind, it should make no difference whether Mother's parental *781 rights to Rosemary were terminated in September (as actually happened), or in February (before Russell was detained). The fact is, she has failed to reunify with one child despite the active threat of permanent loss and has failed to make such improvements as would make the subject minor safe in her custody.
Indeed, it could well be argued that a parent who comes under subdivision (b)(10) due to long-past conduct has a better argument in favor of services simply on the theory that time may have made him or her more receptive.[11] In a case such as this, there is simply no reason to suppose that Mother, who apparently made no changes in her life-style over the two-plus years of Rosemary's dependency, would be any more responsive to a new round of services.[12]
The trial court appears to have been concerned that DPSS' desire to justify denial of services with respect to a subject minor might influence its decision to press for judicial action with respect to another minor which would then bring the parent under subdivision (b)(10). There was discussion at the October hearing over the possibility of "horse races," with the parent demanding a speedy hearing so that services would be ordered before (for example) a permanent plan of adoption was ordered for an older child, or DPSS attempting to delay the dispositional hearing for a subject minor until a terminating order could be obtained for the older child. Due to these concerns, the trial court accepted the argument that the "triggering date" was the filing of the petition with respect to the subject child, so that subdivision (b)(10) would not come into play unless the specified judicial action had been taken with respect to a sibling before that date.
Although the trial court's approach appears, at first glance, to have the merit of clarity, it suffers from at least two problems, First, as we have discussed above, it would have the effect of removing from the operation of subdivision (b)(10) at least some of those parents for whom the statute appears to have been designed. Second, it is based upon an assumption that the Department will act in bad faith in rushing to terminate parental rights to other childrenan assumption we decline to accept as valid. Furthermore, the trial court's rule would not prevent the effective use of such bad faith tactics; DPSS would only have to press forward to terminate parental rights to an older sibling before filing the petition for the subject minor. If DPSS determined to pursue unjustified terminations of parental rights, or to unjustifiably promote permanent plans for other children of the parent, it will not be prevented from doing so simply by making the filing date the "trigger date" for the purposes of subdivision (b)(10).[13]
As a last note on this subject, we point out that even if actions taken after the filing of a dependency petition affect a parent's status under subdivision (b)(10), it is unlikely that DPSS (or the comparable agency in any county) could routinely use a "tactical" termination of rights or selection of a permanent plan as to a sibling of the subject minor to bring the statute into play. If a minor is detained in custody, the jurisdictional hearing is required to be held within 15 days of the filing of the petition.[14] (§ 334.) Continuances require a showing of good cause. (§ 352.) If the minor is found to be a dependent *782 child, the dispositional hearing is to be held within thirty days if denial of services is an issue. (§ 358, subd. (a)(3).) Thus, if a parent insists upon prompt proceedings, it is not likely that DPSS would be able to rush ahead with a proceeding as to the other child which would bring subdivision (b)(10) into play, unless such a proceeding were already in prospect.[15]
It is true, of course, that in this case the jurisdictional hearing itself was delayed for six months after the filing of the petition. However, the record does not reflect the reason, or reasons, for this delay. We do observe that Rosemary M., Russell's sister, was adjudicated a dependent child in February of 1996 after she had been detained in August of 1995. As the statutory scheme contemplates that in no case will reunification services extend more than 18 months from the time a minor is detained out of the parent's custody (§ 366.21, subd. (g)(1)), it is apparent that Rosemary should have reached the stage of the section 366.26 hearing many months before it was actually held in September of 1998. On the record before us, Mother has no basis for suggesting that DPSS somehow manipulated the time schemes.[16]
Finally, we examine section 361.5, subdivision (b) in all its subparts, and find therein additional support for our conclusion. One of these subparts, (b)(12), does contain a specific "triggering date." That is, services may be denied to a parent with a serious drug problem who has "resisted prior treatment for this problem during a three-year period immediately prior to the filing of the petition which brought that minor to the court's attention. ..." This is logical; it ensures that the provision will not be applied to parents who may have resisted treatment during a three-year period long ago, but who are currently attempting to rehabilitate themselves. But no other subpart contains a specific triggering date, and for many it is apparent that whether or not the subpart becomes applicable before or after the dependency petition is filed should make no difference whatsoever. For example, under subdivision (b)(4), services may be denied to a parent who has caused the death of another child. It could not reasonably be argued that a parent who kills a child after a dependency petition is filed on the subject minor may nevertheless demand services. Similarly, the court should be able to deny services to a parent who disappears after the petition is filed, or to a parent whose mental condition develops to a stage that would render him or her incapable of using services after the dependency petition is filed. (§ 361.5, subds.(b)(1) and (2).) In neither case would it make sense to allow such a parent to demand services simply because the statutory bar did not arise until after the dependency petition was filed.[17]
In summary, we hold that subdivision (b)(10) authorizes the court to deny services to any parent whose rights to another child have been terminated, or who has another child under a permanent plan after reunification efforts have failed. It does not matter whether the described actions were taken before or after the current dependency petition was filed; the only requirement is that they have occurred before a disposition is made in the instant case. The trial court therefore erred in believing that subdivision (b)(10) did not apply to Mother.
*783 That subdivision does not, however, require that services be denied, although it certainly creates a provisional bar. Under subdivision (c), services may be offered even to a parent who falls under subdivision (b)(10) if the court finds, by clear and convincing evidence, that it is in the best interests of the minor to do so.[18] We therefore direct the trial court to vacate its order compelling petitioner to provide reunification services to Mother, but to consider under subdivision (c) whether the best interests of the minor indicate that services should be offered.
HOLLENHORST, Acting P.J., and McKINSTER, J., concur.
NOTES
[1] Father is not a party to this petition. The trial court ordered that he be provided services, and DPSS does not contest this order.
[2] Nothing more is possible, in fact, given the scanty factual information in the record. We will sometimes use the terms "evidently" or "apparently" in describing actions or circumstances which are not clearly established in the record, but are not disputed or contested.
[3] All subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified.
[4] This statute, like several others in the Code, was replaced by a section of the same number on January 1, 1999. We cite to the former version, which governed these proceedings. In any event, there are no significant changes in the provisions which apply to this case.
[5] Mother was to serve a 16-month prison term for a drug charge. She had been on probation, but probation was revoked in approximately September 1998.
[6] Section 361.5, subdivision (e) requires the court to order services even for an incarcerated parent unless it determines, by clear and convincing evidence, that services would be detrimental to the minor. The trial court did not make such a finding.
[7] Subdivision (b)(12) governs denial of services to parents with described histories of substance abuse.
[8] For example, subdivision (b)(12) permits denial of services to a parent with a serious drug problem, but only if the parent has resisted treatment for the problem for three years. Thus, if (b)(12) only applied completely prospectively, it could not be relied upon to authorize denial of services for at least three years after its effective date.
[9] In light of the steady multiplication of the subdivision (b) exceptions, it may be questionable how long this comment will hold up. Our analysis of the history of the subdivision indicates that it originally contained five bases on which the court could deny services. Subdivision (b)(6) was added in 1992, and subdivision (b)(7) in 1994. In 1996, a large-scale amendment added subdivisions (b)(8) through (12), and subdivision (b)(13) was added in 1997. (See Historical and Statutory Notes, 73 West's Ann. Welf. & Inst. Code (1998) § 361.5, pp. 346-350.)
[10] The favored term for describing such cases seems to be "fruitless." (See In re Rebecca H., supra. 227 Cal.App.3d 825, 278 Cal.Rptr. 185; see also Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750, 50 Cal.Rptr.2d 858; Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163, 64 Cal.Rptr.2d 33; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478, 73 Cal.Rptr.2d 793; and Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 70, 74 Cal.Rptr.2d 770.)
[11] Although any such argument would be to a considerable extent undercut by the fact that the parent was not providing adequate care to the current child despite one round of experience with losing a child due to neglect or abuse.
[12] It will be recalled that Mother's experience with DPSS and services after Rosemary was made a dependent did not result in any improvement with respect to her care of Rochelle.
[13] Mother attempts to make something suspicious out of the fact that DPSS in this case did not originally recommend a denial of services, but did so only after her parental rights to Rosemary were terminated. There is nothing suspicious in this, because until Mother lost her parental rights to Rosemary, there was no legal basis to recommend a denial of services. Similarly, it does not appear that mother was incarcerated until approximately the time of the September hearing, so her incarceration could not have been used earlier as a grounds for denial.
[14] If the minor is not detained, the hearing shall be held within 30 days. However, if DPSS intends to recommend a denial of services, presumably the minor will have been detained.
[15] We also assume that a trial court would look askance at any request by either side for either a continuance or an advancement designed solely with subdivision (b)(10) in mind.
[16] We are, of course, aware that the strict time frames of the dependency law are honored more in the breach than the observance. However, these time frames are designed to expedite matters and limit the amount of time a minor spends in the "limbo" of foster care before a permanent plan, preferably adoption, can be implemented if the parent fails to reunify. (See In re David H. (1995) 33 Cal.App.4th 368, 387-388, 39 Cal. Rptr.2d 313.) Thus, we cannot, and do not, consider the common failure to comply with these limitations to be "normal."
[17] See also subdivision (b)(11), which authorizes the denial of services to a parent who has been convicted of a violent felony, and subdivision (b)(13), which authorizes denial of services if the parent informs the court that he or she does not want them. In the latter case, the subdivision could not become applicable until judicial proceedings were commenced and the parent made the necessary concession in court.
[18] As we have noted above, the record does not permit us to resolve this issue even if we were inclined to attempt to do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262599/ | 900 F.Supp. 574 (1995)
Willie Victor ORTIZ PIÑERO, Plaintiff,
v.
Hon. Victor RIVERA ACEVEDO, et al., Defendant.
Civ. No. 93-1449 (JP).
United States District Court, D. Puerto Rico.
September 14, 1995.
*575 *576 Carlos Del Valle Cruz, Lespier & Muñoz Noya, San Juan, PR, Ricardo Torres Muñoz, San Juan, PR, for plaintiff.
Luis Plaza, San Juan, PR, Héctor Quijano, Hato Rey, PR, for defendant.
OPINION AND ORDER
PIERAS, District Judge.
The Court has before it defendants' Motion for Summary Judgment and plaintiff's Opposition (docket Nos. 18 and 25).
I. INTRODUCTION
This is an action for injunctive relief and damages brought pursuant to 42 U.S.C. *577 § 1983. On January 22, 1993, defendant Rivera Acevedo, the newly elected Mayor of the Municipality of Gurabo, of the New Progressive Party (hereinafter referred to as "NPP"), rescinded and refused to renew plaintiff's employment contract for his position as the Director of the Office of Federal Programs for the Municipality of Gurabo. Plaintiff alleges that defendant Rivera Acevedo rescinded and failed to renew his employment contract based solely on plaintiff's political affiliation with the Popular Democratic Party (hereinafter referred to as "PDP"). Plaintiff asserts that the recision and nonrenewal of his contract violated his rights to free speech and free political association under the First Amendment, and right to notice and an opportunity to be heard prior to the discharge under the Due Process Clause of the Fourteenth Amendment.
Defendants first assert that plaintiff was dismissed pursuant to a valid unilateral termination clause in plaintiff's employment contract. Next, defendants argue that political affiliation was a valid requirement for the position of Director of Office of Federal Programs, therefore plaintiff's dismissal did not violate his First Amendment rights. Defendants further assert that the position of Director of Office of Federal Programs was one of trust, subject to removal at any time. Therefore, plaintiff did not have any property interest in his continued employment, and was not entitled to notice and an opportunity to be heard prior to his dismissal. Defendant Rivera Acevedo, in his individual capacity, asserts that his conduct did not violate any clearly established law, thus he is entitled to qualified immunity.
The Court finds as a matter of law that political affiliation is an appropriate requirement for the position of Director of the Office of Federal Programs for the Municipality of Gurabo. Furthermore, plaintiff did not have a reasonable expectation in the continuation of his temporary, confidential position, thus he was not entitled to due process considerations before his dismissal. Consequently, defendants' motion for summary judgment is hereby GRANTED for the reasons hereinafter stated.
II. UNCONTESTED FACTS
The parties have agreed to the following facts. See Initial Scheduling Conference Order (docket No. 38).
1. On October 1, 1992, plaintiff, Willie Victor Ortiz Piñero, signed a contract with Mr. Ramón García Caraballo, PDP Mayor of the Municipality of Gurabo at that time. Pursuant to the contract, plaintiff agreed to perform the services of Director of the Federal Programs for the Municipality of Gurabo for a term of one year.
2. On August 30, 1991, plaintiff and Mr. García Caraballo extended the contract for another one year term, which would end on September 30, 1992.
3. The same contract was extended again for another term which would end on September 30, 1993.
4. The fifth clause of the contract provides as follows:
"... The Honorable Ramón García Caraballo as representative of the Municipality of Gurabo, reserves the right of terminating this contract at any moment before its maturity, sending a prior written notice 30 days in advance of the date whereby the same is to be resolved."
5. The Municipality of Gurabo does not enjoy immunity under the Eleventh Amendment, and it is a person for the purpose of the Civil Rights Act 42 U.S.C. § 1983.
6. Plaintiff is a well-known member of the PDP and has held the political positions of PDP Municipal Assembly Member, PDP Gurabo Electoral Commissioner, and the Finance Director for PDP Mayoral Candidate Angie Flores, who ran against defendant Rivera Acevedo during the 1992 mayoral election.
7. Defendant Rivera Acevedo, a member of the New Progressive Party, ("NPP") was elected Mayor of the Municipality of Gurabo at the November 4, 1992 elections, and assumed office on January 11, 1993.
8. On January 22, 1993, defendant Rivera Acevedo sent Ortiz a written letter notifying him that his contract with the Municipality was terminated, effective March 5, 1993. *578 This notification was more than 30 days in advance.
9. After plaintiff's discharge, defendant Rivera Acevedo named Luis R. Figueroa Ramos, a member of the NPP, as plaintiff's replacement as Federal Programs Director.
10. The amount of funds received from the federal government vis a vis the budget of the Municipality was substantial.
III. SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides for the entry of summary judgment in a case where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993); Lipsett v. University of Puerto Rico, 864 F.2d 881, 894 (1st Cir.1988).
Summary judgment is appropriate where, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, there is not the slightest doubt as to whether a genuine issue of material fact exists. Kennedy v. Josephthal & Co., 814 F.2d 798, 804 (1st Cir.1987). A "genuine" issue is one that is dispositive, and which consequently must be decided at trial. Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir. 1989); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). A material fact, which is defined by the substantive law, is one which affects the outcome of the suit and which must be resolved before attending to related legal issues. Mack, 871 F.2d at 181.
The party filing a motion for summary judgment bears the initial burden of proof to show "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Thereafter, the burden shifts to the non-movant to provide the Court, through the filing of supporting affidavits or otherwise, with "some indication that he can produce the quantum of evidence [necessary] to enable him to reach the jury with his claim." Hahn v. Sargent, 523 F.2d 461, 468 (1st Cir.1975). The non-movant cannot rest upon mere allegations or denial of the pleadings. Fed.R.Civ.P. 56(e). Indeed, the non-movant must affirmatively show that "sufficient evidence supporting the claimed factual dispute [exists] to require a jury or judge to resolve the parties' differing versions of truth at trial." First National Bank v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968).
IV. FIRST AMENDMENT CLAIM
In order to establish a prima facie case of political discrimination for a patronage dismissal violative of the free association rights protected by the First Amendment, plaintiff must show that his affiliation with the PDP was the substantial or motivating factor underlying the recision and nonrenewal of his employment contract. Ferrer v. Zayas, 914 F.2d 309, 311 (1st Cir.1990) (citing, inter alia, Metropolitan Housing Development Corp., 429 U.S. 252, 270, 97 S.Ct. 555, 565, 50 L.Ed.2d 450 (1977); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980)). Plaintiff bears the initial burden of demonstrating that political affiliation is the motivating factor for defendant's decision to dismiss plaintiff, and circumstantial evidence may be sufficient to support this contention. Estrada-Izquierdo v. Aponte-Roque, 850 F.2d 10, 14 (1st Cir.1988). Defendant then has the opportunity to come forward and rebut plaintiff's contention by proving that there was a legitimate and non-pretextual reason for dismissing plaintiff. Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
Plaintiff points to the following facts to support his contention that his dismissal was politically motivated. First, plaintiff argues that the Puerto Rico Civil Code establishes a rebuttable presumption that any employment discharge within six months of a political election was politically motivated, 29 L.P.R.A. § 137. Defendant rescinded plaintiff's contract during January 1993, within six *579 months of the November 1992 mayoral election. In addition, plaintiff asserts that Luis R. Figueroa Ramos, the individual who replaced plaintiff as the Director of the Office of Federal Programs, was a member of the NPP.
Defendants do not contend that political affiliation was a factor in their decision to terminate the contract. They argue, however, that political affiliation is an appropriate requirement for the effective performance of certain positions. Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980) and Elrod v. Burns, 427 U.S. 347, 367-368, 96 S.Ct. 2673, 2686-2687, 49 L.Ed.2d 547 (1976). In Branti and Elrod, the Supreme Court recognized that for certain government positions, an employee's private political beliefs might interfere with the performance of his public duties. Thus, the state's vital interest in maintaining governmental effectiveness and efficiency outweigh the individual's First Amendment rights to free association. Branti, 445 U.S. at 517, 100 S.Ct. at 1294; Elrod, 427 U.S. at 366, 96 S.Ct. at 2686. Defendants assert that the position of Director of the Office of Federal Programs for the Municipality of Gurabo was a position for which political affiliation was an appropriate requirement.
The First Circuit has further defined the relevant analysis of whether political affiliation is an appropriate requirement for a particular position through a two-prong test. First, one must determine whether the position at issue relates to partisan political interests or concerns; and second, whether the inherent duties of the position are such that party affiliation is an appropriate requirement of the position. Jiménez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-242 (1st Cir.1986) cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987); see also Collazo Rivera v. Torres Gaztambide, 812 F.2d 258, 260-261 (1st Cir.1987).
Under the first prong, it is necessary to analyze whether the agency or department was involved in public policymaking activities about which political differences were possible. It is not essential that an actual conflict about political concerns exists. The mere possibility that disagreement could arise as to the goals of the agency or the implementation of those goals demonstrates the importance of political differences. Méndez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258 (1st Cir.1987). See also Juarbe-Angueira v. Arias, 831 F.2d 11, 15 (1st Cir. 1987) cert. denied, 485 U.S. 960, 108 S.Ct. 1222, 99 L.Ed.2d 423 (1980).
As a matter of law, the Office of Federal Programs for the Municipality of Gurabo is an agency whose mission involves the implementation of public policy of the municipality. The agency was directly involved in receiving and distributing a substantial amount of federal funds, through direct grants and guaranteed loans, to be used for the construction or repair of significant municipal projects. For instance, while plaintiff was director, the agency acquired funds or continued to receive funds for the following projects: construction of a new City Hall building involving a loan from the Farmer's Home Administration; construction of a public car terminal, with funds provided by the Federal Transportation Act; and construction of a treatment plant (plaintiff's Deposition, ("Deposition") docket No. 25, at 65). Furthermore, these projects required significant expenditures. While plaintiff was Director of the Office of Federal Programs, approximately one million dollars in funds and loans passed through the office for various projects during the year 1992 (Deposition at 29-30).
In analyzing the possibility that political disagreement could exist regarding the goals and the implementation of the goals of the Public Building Authority of the Commonwealth of Puerto Rico, the First Circuit has held that "[w]here, how and when the government will repair or reconstruct public buildings, which towns will have which priorities, when and where money is to be spent, may well be a matter of considerable interest to government officials including political leaders." Juarbe-Angueira v. Arias, 831 F.2d 11, 15 (1st Cir.1987) cert. denied, 485 U.S. 960, 108 S.Ct. 1222, 99 L.Ed.2d 423 (1980). Similarly, where, how and when a municipal government will build or repair municipal projects, which municipal project *580 will have priority, and when and where money is to be spent, may well be a matter of considerable interest to municipal government officials, especially when it is federal money being spent on municipal projects. Therefore, political disagreement could arise concerning the implementation of the goals of the Office of Federal Programs.
Moving to the second prong of the analysis, one must analyze the inherent powers and responsibilities of the individual position within the agency. Méndez-Palou, 813 F.2d at 1258. It is clear from the evidence provided that there is no official delineation of plaintiff's duties while he was Director. In general, public employees for the government of Puerto Rico receive and acknowledge an official Job Classification Questionnaire (Form "OP-16"), which states the specific job duties of a particular position. In plaintiff's deposition, however, he states that he never signed an OP-16, nor was there a clear list of his official duties. Plaintiff performed whatever duties the Mayor requested and demanded, as long as the Mayor's requests did not contravene binding law. (Deposition at 24, 39, 46). In general, "[a]n employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position." Méndez-Palou v. Rohena-Betancourt, 813 F.2d at 1262 (citing Elrod, 427 U.S. at 368, 96 S.Ct. at 2687).
Although courts generally rely upon the OP-16 as a concise, detailed account of the inherent powers and responsibilities of the job description, the OP-16 is not the only relevant evidence describing the duties of an individual position. Méndez-Palou, 813 F.2d at 1260. In plaintiff's deposition, he states that the Director of the Office of Federal Programs was required to inform the Mayor of the amount of funds which would be received by Municipal Services; obtain and maintain the documents substantiating the need for federal funds; follow-up on existing projects; receive Small Block Grant Program funds; and administer funds from the Department of Housing and Urban Development, loans from the Municipality and Farmer's Home loans (Deposition at 18). Plaintiff argues that these duties involved requesting federal grants for programs and assuring compliance with the terms of those grants. Therefore, plaintiff asserts, his position merely required the application of technical criteria. However, it is apparent from looking at the inherent duties of the Director of Federal Programs, that the position involved the implementation of public policy.
First, the duties that the Director of the Office of Federal Programs performed on a daily basis are not of the technical type, which "are measured solely by strictly technical or professional criteria." Méndez-Palou 813 F.2d at 1258. Neither plaintiff's educational background[1] or work experience[2] qualifies him as an expert in the field of compliance with the requisites of federal funds and loans. In fact, he admitted that he had no specialization as to fiscal matters, since he would depend upon either the Director of Finance or the accountant for all financial information (Deposition at 31). Nor did plaintiff have the ability to decide if the federal funds were being invested properly, since it was the responsibility of the engineer to decide how the funds were being invested (Deposition at 27).
Plaintiff's duties related directly to the Mayor's interests and concerns. First, the Mayor would chose what projects to complete and how to finance the various projects (Deposition at 24). Then, plaintiff had the responsibility of keeping the Mayor informed about the status of the projects. For instance, plaintiff was responsible for relaying information to the Mayor about whether or not the construction employees were actually working or were on strike, whether something was missing from the construction site, *581 or whether there was an accident at the construction site (Deposition at 27, 28).
Second, plaintiff was privy to certain kinds of confidential information. Rosario Nevárez v. Torres Gaztambide 820 F.2d 525 (1st Cir. 1987); Juarbe-Angueira, 831 F.2d 11 (1st Cir.); Candelario v. González Chapel, 681 F.Supp. 107 (D.P.R.1988). Plaintiff had direct access to audits and oversights of the status of the municipal projects. These financial documents were either sent to plaintiff first, or they were sent to the Mayor and then passed on to him. It was plaintiff's responsibility to review these documents on behalf of the Mayor. (Deposition at 50-64).
Third, it is uncontested that the Mayor of the municipality was plaintiff's direct supervisor, although the Vice Mayor and the Director of Finance also had supervisory powers over plaintiff (Deposition at 24, 25, 35, 36 and 39). His close contact with the Mayor ensured that there was a higher probability that he would have access to "a substantial amount of confidential information relating to the politically sensitive operations of the office." Méndez-Palou 813 F.2d at 1263.
As a final consideration, it is apparent that the previous Mayor considered political affiliation as an important factor in the performance of the duties of the Director of the Office of Federal Programs. After the 1992 mayoral election, the previous Mayor wrote a letter to plaintiff, and the other directors of municipal administrative agencies recommending that they step down from their positions of confidence because he had lost the election (Deposition at 47). The Mayor's perceptions that plaintiff's position was one involving the implementation of public policy is a relevant, although not dispositive, factor.
Plaintiff's generalized duties and close contact with the Mayor demonstrate that plaintiff was the eyes and the ears of the Mayor concerning several projects. Therefore, we must conclude that political affiliation was an appropriate requirement for the position of Director of the Office of Federal Programs, and the recision and nonrenewal of plaintiff's contract did not violate his First Amendment rights.
V. FOURTEENTH AMENDMENT CLAIM
The Due Process Clause of the Fourteenth Amendment guarantees the right to an informal hearing before the termination of a property interest, Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). A property interest in continued public employment is created by "existing rules or understandings that stem from an independent source such as state law." Id., 470 U.S. at 538, 105 S.Ct. at 1491. Whether a property interest exists depends upon whether it was objectively reasonable for the employee to believe, based upon either statute or employment contract, that he could rely on continued employment. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976).
The parties dispute both which is the proper independent source of Commonwealth law which creates and defines plaintiff's property interest in continued employment, and how the law applies to the position of the Director of the Office of Federal Programs. The Puerto Rico Personnel Law, ("Act") 3 L.P.R.A. § 1301, et seq., divides government employees into two categories, career employees and confidential employees. 3 L.P.R.A. § 1349. Confidential employees are "those who intervene or collaborate substantially in the formulation of public policy, who advise directly or render direct services to the head of the agency...." 3 L.P.R.A. § 1350. These employees are "of free selection and removal." 3 L.P.R.A. § 1336(4). In contrast, career employees are those who enter the civil service system after following the procedures established for competition based upon merit, 3 L.P.R.A. § 1352, and may only be dismissed for "good cause, after preferment of charges in writing." 3 L.P.R.A. § 1336(4). The Autonomous Municipality Act ("AMA") which applies specifically to employees of municipalities, as opposed to employees of the Commonwealth government, provides for two classifications in addition to the already recognized trust and career positions: that of the temporary employee, whose position is that of a fixed duration which shall not exceed one year, 21 *582 L.P.R.A. § 4554(c), and that of the irregular employee. 21 L.P.R.A. § 4554(d).
Both sources of law create plaintiff's property interest in his continued employment as Director of the Office of Federal Programs. It is undisputed that plaintiff's position was contractual for a period of one year, which was renewed on two occasions. Therefore under the AMA, his position is classified as temporary ("transitorio"), and he had no interest in continued employment after the term of his contract had expired. The question here, however, revolves around the definition of plaintiff's interest in continued employment during the duration of the contractual period. The Court finds as a matter of law, that in addition to being a temporary employee, the Director of the Office of Federal Programs was a confidential position.
The Puerto Rico Personnel Act provides that the Mayor of each Municipality shall submit a plan to the Municipality Assembly designating which positions are confidential positions. 3 L.P.R.A. § 1351. The Central Office of Personnel Administration ("COPA") then has the responsibility of assuring that the plans comply with the provisions of the Act. Id. Defendants contend that the Municipality of Gurabo designated Federal Programs Director, as one of its eleven trust positions. Municipal Ordinance Number Three (3), Series 1981-82, dated September 14, 1981.
Plaintiff counters that the municipal ordinance cited by defendants was not in effect in September 1991 when plaintiff signed his first employment contract with the Mayor of Gurabo, therefore, the ordinance is inapplicable. Plaintiff further asserts that the Municipality failed to comply with all pertinent regulations provided in the Act. 3 L.P.R.A. § 1351. Although defendants submitted the proposed plan as an exhibit to its motion for summary judgment (docket No. 18, Exhibit No. 6 Spanish version, docket No. 44, Exhibit No. 9 English version), they have not submitted any evidence that COPA actually approved Gurabo's plan. Plaintiff argues that the failure to receive COPA approval nullifies the effect of Gurabo's proposed trust position designations.
Plaintiff's contention relies upon an erroneous interpretation of the statutory language. The relevant provision reads as follows:
Each agency shall present for approval of the Office a plan containing the confidential positions by which it desires to operate. In the case of municipalities, the Municipal Assembly shall follow the ordinance or resolution approving the plan submitted by the mayor and shall send it to the Office for the sole purpose of ascertaining that the provisions of section 1350 of this title have been complied with. 3 L.P.R.A. § 1351.
Approval by COPA of a plan is essential for an agency of the Commonwealth. Municipalities, however, are subject to separate requirements. Therefore, the failure to present evidence demonstrating that COPA actually approve the designations of confidential employees does not preclude the determination that a certain position was one of confidence.
Moreover, the previous Mayor wrote a letter to each of the individuals who held what he believed were confidential positions, suggesting that they renounce their positions. Thus, it is apparent that the Mayor considered plaintiff's position one of confidence by the time he was leaving office. Plaintiff, therefore, held a temporary, confidential position as Director of Office of Federal Programs. Confidential employees are not entitled to notice and hearing prior to dismissal. Consequently, the rescission and nonrenewal of plaintiff's contract did not violate his Fourteenth Amendment rights.
VI. CONCLUSION
Political affiliation was an appropriate requirement for the position of Director of the Office of Federal Programs for the Municipality of Gurabo. Thus defendants' action in rescinding plaintiff's contract did not violate plaintiff's First Amendment rights. Further, the Director of the Office of Federal Programs was a temporary, confidential position. Therefore, plaintiff did not have a reasonable expectation in the continued employment in his position pursuant to Commonwealth law. Consequently, defendant was not required to provide plaintiff with notice and an opportunity *583 to be heard prior to dismissal. Thus, defendant's employment decision did not violate plaintiff's Fourteenth Amendment rights. For the foregoing reasons, defendant's motion for summary judgment is hereby GRANTED.
IT IS SO ORDERED AND ADJUDGED.
NOTES
[1] Plaintiff had no special training for the position of Director of Office of Federal Programs prior to signing his original contract. Plaintiff's only training occurred on the job. (Deposition at 16).
[2] Plaintiff held the following positions prior to becoming Director of the Office of Federal Programs: Assemblyman for the Municipality of Gurabo; Director of Administración del Trabajo; Legislative Services (Deposition at 7). After his dismissal as Director of Federal Programs, plaintiff became a Legal Technician for the Municipality of San Juan (Deposition at 68). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262600/ | 84 Cal.Rptr.2d 616 (1999)
71 Cal.App.4th 1465
Dave PARK, Plaintiff and Appellant,
v.
DEFTONES et al., Defendants and Respondents.
No. B124598.
Court of Appeal, Second District, Division Two.
May 11, 1999.
Review Denied July 28, 1999.
*617 Johnson & Rishwain and Neville L. Johnson, for Plaintiff and Appellant.
Browne & Woods, Allen B. Grodsky, Beverly Hills, and James D. Kozmor, for Defendants and Respondents the Deftones, Camillo Wong Moreno, Stephen Carpenter, Abe Cunningham and Chi Ling Cheng.
Greenberg, Glusker, Fields, Claman & Machtinger, Lawrence Y. Iser, Los Angeles, and Matthew N. Falley, for Defendants and Respondents Maverick Records and Guy Oseary.
NOTT, Acting P.J.
Dave Park appeals from the summary judgment entered against him in his action for breach of contract and intentional interference with contractual relations. His action arises from the termination of his personal manager contract by the Deftones, a music act whose members are Camillo Wong Moreno, Stephen Carpenter, Abe Cunningham, and Chi Ling Cheng (referred to collectively as the Deftones), without paying him commissions which he asserts are due him. In addition, Park alleges that after he secured a recording contract for the Deftones with Maverick Records (Maverick), the record company and one of its agents, Guy Oseary, purposefully interfered with Park's contractual relationship with the Deftones. The trial court granted summary judgment on the ground that the management contract between the Deftones and Park was void, Park having violated the Talent Agencies Act (the Act) by securing performance engagements for the Deftones without being licensed as a talent agency. (Labor Code, § 1700 et seq.)[1] We affirm on that ground.
PROCEDURAL AND FACTUAL BACKGROUND
Park filed this action in October 1996, alleging breach of certain management agreements against the Deftones and the individual band members and intentional interference with contractual relations against Maverick and Oseary. He attached to his complaint his written agreements with the Deftones entered into in February 1992, February 1993, and January 1994. In February 1997, the Deftones filed a petition before the Labor Commissioner, seeking to void the management agreements. Park unsuccessfully sought dismissal of the petition as untimely filed. The Labor Commissioner determined that Park had violated the Act by obtaining performance engagements for the Deftones on 84 occasions without a license. He issued an order stating that the personal management agreements entered into in 1992, 1993, and 1994 were "null, void and unenforceable." Park demanded a trial de novo in the administrative proceeding.
*618 Maverick and Oseary filed a motion for summary judgment on the grounds that the undisputed facts showed that (1) Park and the Deftones entered into a written contract for management services dated January 18, 1994, (2) between September 1991 and September 1994, Park procured numerous performances for the Deftones, and (3) Park was not a licensed talent agency during that period. Maverick and Oseary relied in part upon the transcript of the Labor Commission proceeding to establish the facts. The Deftones filed a similar motion.
Park opposed the motions. He objected to use of the Labor Commission hearing transcript, but admitted that he had obtained more than 80 engagements for the Deftones. He asserted that the Deftones' petition before the Labor Commission was untimely filed and that his services did not require a talent agency license because they were rendered without a commission and were undertaken in order to obtain a recording agreement. The trial court entered summary judgment in favor of all defendants.
DISCUSSION
I. Timeliness
Park contends that the Deftones' petition before the Labor Commissioner and the defense based upon the Act are barred by the one-year statute of limitations: "No action or proceeding shall be brought pursuant to this chapter with respect to any violation which is alleged to have occurred more than one year prior to commencement of the action or proceeding." (§ 1700.44, subd. (c).)
In declaration testimony, Park stated that the last time he booked a concert for the Deftones was in August 1994. He urges that the Deftones' petition, filed in February 1997, was therefore not timely. Park concludes that the Deftones may not rely upon the Act as a defense because Park's own action was filed more than one year after he last booked a concert for the Deftones.
The Labor Commissioner, who is statutorily charged with enforcing the Act (§ 1700.44, subd. (a)), found that the Deftones' petition was timely because it was brought within one year of Park's filing an action to collect commissions under the challenged contract.[2] The Commissioner stated that the attempt to collect commissions allegedly due under the agreements was itself a violation of the Act. (Moreno v. Park (Jan. 20, 1998, Lab.Comr.) No. 9-97, p. 4.)
In construing a statute, the court gives considerable weight to the interpretation placed on the statute by the administrative agency charged with enforcing it. (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 234, 5 Cal.Rptr.2d 782, 825 P.2d 767.) The Labor Commissioner's interpretation avoids the encouragement of preemptive proceedings before it. It also assures that the party who has engaged in illegal activity may not avoid its consequences through the timing of his own collection action. We conclude that the Labor Commissioner's interpretation is reasonable, and that the Deftones' petition was timely filed.
II. Incidental procurement of employment
The Act provides that "No person shall engage in or carry on the occupation of a talent agency without first procuring a license therefor from the Labor Commissioner." (§ 1700.5.) A talent agency is "a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists, except that the activities of procuring, offering, or promising to procure recording contracts for an artist or artists shall not of itself subject a person or corporation to regulation and licensing under this chapter ...."(§ 1700.4, subd. (a).)
Unlike talent agents, personal managers are not covered by the Act. Personal managers primarily advise, counsel, direct, and coordinate the development of the artist's career. They advise in both business and personal matters, frequently lend money *619 to young artists, and serve as spokespersons for the artists. (See Waisbren v. Peppercorn Productions, Inc. (1995) 41 Cal.App.4th 246, 252-253, 48 Cal.Rptr.2d 437 (Waisbren).)
Park argues that as a personal manager his goal in procuring engagements for the Deftones was to obtain a recording agreement. He contends that his actions were therefore exempt from regulation. That position was rejected in Waisbren, supra, 41 Cal.App.4th at p. 259, 48 Cal.Rptr.2d 437. In Waisbren, a promoter brought an action for breach of contract against a company engaged in designing and creating puppets. The defendant moved for summary judgment on the ground the parties' agreement for the plaintiffs services was void because he had performed the duties of a talent agent without obtaining a license. The plaintiff asserted that a license was unnecessary because his procurement activities were minimal and incidental. He had also assisted in project development, managed certain business affairs, supervised client relations and publicity, performed casting duties, coordinated production, and handled office functions. In return, he was to receive 15 percent of the company's profits. Waisbren holds that even incidental activity in procuring employment for an artist is subject to regulation under the Act.
The reasoning of Waisbren is convincing. It relies upon the remedial purpose of the Act and the statutory goal of protecting artists from long recognized abuses. The decision is also based upon the Labor Commissioner's long held position that a license is required for incidental procurement activities. The court in Waisbren found the Labor Commissioner's position to be supported by legislative history and, in particular, by the recommendations contained in the Report of the California Entertainment Commission, which were adopted by the Legislature in amending the Act in 1986.
Wachs v. Curry (1993) 13 Cal.App.4th 616, 16 Cal.Rptr.2d 496, relied upon by Park, does not further his cause. In Wachs, the personal manager plaintiffs brought a declaratory relief action challenging the constitutionality of the Act on its face. They took the position that the Act's exemption for procurement activities involving recording contracts violated the equal protection clause and that the Act's use of the term "procure" was so vague as to violate due process. Wachs rejected both of those positions. It also interpreted the Act, which applies to persons engaged in the occupation of procuring employment for artists, as applying only where a person's procurement activities constitute a significant part of his business. (Id. at pp. 627-628, 16 Cal.Rptr.2d 496.) The court did not define "significant part." The court acknowledged that "... the only question before us is whether the word `procure' in the context of the Act is so lacking in objective content that it provides no standard at all by which to measure an agent's conduct" (id. at p. 628, 16 Cal.Rptr.2d 496, italics omitted). We agree with Waisbren that the interpretation stated in Wachs is dictum and that even incidental procurement is regulated.
III. Absence of a commission
Park also contends that his procuring employment for the Deftones is not regulated by the Act because he was not compensated for that work. We disagree.
Park's 1993 and 1994 agreements with the Deftones expressly provided that Park was to receive a 20 percent commission on all income earned from employment that Park secured. Although Park stated in declaration testimony that he received no commission for procuring engagements for the Deftones, the contracts appear to provide for compensation.[3] In addition, Park would receive compensation for his services ultimately from commissions for obtaining a recording contract for the Deftones. Thus, it is not clear that Park should be treated as one who was not compensated for his services.
Park's position, moreover, is not supported by the language of the Act. The Act regulates those who engage in the occupation of procuring engagements for artists. (§ 1700.4, *620 subd. (a).) The Act does not expressly include or exempt procurement where no compensation is made. Waisbren states at footnote 6: "By using [the term `occupation'], the Legislature intended to cover those who are compensated for their procurement efforts." (41 Cal.App.4th at p. 254, 48 Cal.Rptr.2d 437.) The issue of compensation, however, was not before the court in Waisbren. The language in footnote 6 is dictum which we conclude is not supported by the purpose and legislative history of the Act. One may engage in an occupation which includes procuring engagements without receiving direct compensation for that activity.
As explained in Waisbren, the purpose of the Act is remedial, and its aim goes beyond regulating the amount of fees which can be charged for booking acts. For example, an agent must have his form of contract approved by the Labor Commissioner, maintain his client's funds in a trust fund account, record and retain certain information about his client, and refrain from giving false information to an artist concerning potential employment. (See §§ 1700.23, 1700.25, 1700.26, 1700.32, and 1700.41.) Because the Act is remedial, it should be liberally construed to promote its general object. (See Buchwald v. Superior Court (1967) 254 Cal.App.2d 347, 354, 62 Cal.Rptr. 364.) The abuses at which these requirements are aimed apply equally where the personal manager procures work for the artist without a commission, but rather for the deferred benefits from obtaining a recording contract.
In 1982, the Legislature created the California Entertainment Commission (the Commission) to study the laws and practices of this and other states relating to the licensing of agents and representatives of artists in the entertainment industry in order to recommend to the Legislature a model bill regarding licensing. (See Waisbren, supra, 41 Cal. App.4th at p. 256, 48 Cal.Rptr.2d 437.) In 1985, the Commission submitted its report to the Governor and the Legislature (the Report). The Legislature followed the Commission's recommendations in enacting the 1986 amendments to the Act. (See Waisbren, supra, 41 Cal.App.4th at p. 258, 48 Cal. Rptr.2d 437.)
The Report[4] states that the Commission reviewed and rejected a proposal which would have exempted from the Act anyone who does not charge a fee or commission for procuring employment for an artist. The Commission concluded: "It is the majority view of the Commission that personal managers or anyone not licensed as a talent agent should not, under any condition or circumstances, be allowed to procure employment for an artist without being licensed as a talent agent, except in accordance with the present provisions of the Act." (Report, supra, at p. 6.)
The Legislature accepted the Report and codified the Commission's recommendations, approving the Commission's view that no exemption should be created for those who do not charge a fee for procuring employment for an artist. We conclude that the Act requires a license to engage in procurement activities even if no commission is received for the service.
DISPOSITION
The judgment appealed from is affirmed.
ZEBROWSKI, J., and MALLANO, J.[*], concur.
NOTES
[1] All statutory references are to the Labor Code, unless otherwise indicated.
[2] The commissions sought were apparently for procuring a recording agreement, not procuring engagements.
[3] The agreements acknowledge that Park is not a licensed talent agent and is under no obligation to procure employment for the Deftones.
[4] We grant respondents' request that we take judicial notice of the 1985 Report of the California Entertainment Commission. (Evid.Code, § 452, subd. (c).)
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262601/ | 306 A.2d 182 (1973)
James R. CAVANAUGH
v.
Alfred F. PALANGE et al.
No. 1792-Appeal.
Supreme Court of Rhode Island.
June 28, 1973.
*183 Aram K. Berberian, Cranston, for plaintiff.
Richard J. Israel, Atty. Gen., W. Slater Allen, Jr., Asst. Atty. Gen., for defendants.
OPINION
ROBERTS, Chief Justice.
This is a civil action brought to recover damages resulting from an alleged conversion of the plaintiff's motor vehicle by the defendants, Alfred F. Palange, a member of the South Kingstown Police Department, and Edward J. McKenna, an investigator employed by the Registry of Motor Vehicles of the State of Rhode Island. Jury trial was waived, and the case was tried to a justice of the Superior Court. At the conclusion of the plaintiff's case, each defendant moved for an involuntary dismissal of the cause pursuant to the provisions of Super. R. Civ. P. 41(b)(2). The motion was granted with respect to each defendant, judgment entered, and the plaintiff is now prosecuting an appeal from that judgment to this court.
On June 14, 1967, plaintiff was stopped by a South Kingstown police officer for having loud mufflers on his car. The officer issued a five-day repair tag to plaintiff pursuant to G.L. 1956 (1968 Reenactment) § 31-38-2. Subsequently, on June 24, 1967, plaintiff was again stopped. He testified that the policeman instructed him to bring his car to the police station. At the station Lieutenant Palange came out and asked plaintiff to start the car. The plaintiff refused but gave the officer his keys. After listening to the car, Palange informed plaintiff that he was holding the car for the state inspector to examine the altered exhaust system.
On June 27, Edward J. McKenna dispatched an investigator to inspect the car. That investigator found cutouts in the exhaust system and removed the plates from the vehicle. After being informed by the police of the investigator's action, plaintiff had the car towed to a garage, where it remained *184 approximately five weeks until a new exhaust pipe arrived from Detroit. On August 8, Mr. McKenna sent another investigator to examine the car. The investigator found the repairs satisfactory, and plaintiff procured his plates from the registry.
In granting the motion for an involuntary dismissal, the trial justice concluded that plaintiff had failed to state a cause of action. He based his ruling on his conclusion that defendants' acts were authorized by statute and that, as public officers, they were immune from a suit of this nature.
On appeal, both sides argue the issue of authority of the police to impound the vehicle. Express statutory authority for such police action is rather limited. Section 31-38-2 allows a police officer to issue written notice to a driver of an improperly equipped vehicle, giving him five days to repair the faulty condition. Section 31-38-3 provides that in the event of noncompliance with the notice, the vehicle shall not be operated except to return it to the residence or place of business of the driver, if within 20 miles, or to a garage. However, any vehicle "* * * found to be in such unsafe condition as to brakes, steering or other equipment as to be hazardous to permit it * * *" to be driven shall not be operated at all under its own power. Section 31-38-12 imposes a penalty of up to $100 fine and 30 days imprisonment for violations of § 31-38-2 or § 31-38-3.
A muffler cutout renders an exhaust system defective and unlawful. § 31-23-13. Whether such a cutout constitutes an unsafe condition which would make the automobile too hazardous to drive is a question of fact. In that the record is devoid of any evidence on this issue, we must assume for purposes of this appeal that a defective exhaust is not one of those conditions which require that the police and registry prevent the automobile from being operated under its own power. Inasmuch as the motion for involuntary dismissal was granted before defendants' case was presented, we have no evidence before us which would establish that Lieutenant Palange was acting with knowledge that plaintiff had received a five-day notice previously and had failed to comply with its provisions, in which case the operation of the vehicle under a continuing defect would be improper under § 31-38-3. Upon the evidence before us, Lieutenant Palange exceeded his authority in impounding the car. Rather, he should have instructed plaintiff to take the vehicle to his home or to a garage and not to drive it until it was repaired.
However, plaintiff misconceives the thrust of the trial justice's decision dismissing his complaint. The trial justice did not rely primarily upon his belief that the officer's action was authorized under the statutory scheme, nor did he indicate that conversion does not lie under the instant facts. Rather, he said: "I know of no theory which allows damages against public officials who are carrying out their duty, and I fear that any such theory would result in chaos." The trial justice's decision was based clearly upon his belief that an immunity from civil liability exists for police officers when acting in the good-faith performance of duty where malice or oppression are absent, despite the overzealousness of the action. See Hughes v. Blevins, 216 Cal.App.2d 798, 31 Cal.Rptr. 372 (1963).
This court has never passed on precisely that question, and, therefore, we take no position whatsoever on the merits of the trial justice's statement of the law.[1] However, the plaintiff has failed to address himself in any way to the question of immunity from civil suit under the circumstances outlined above. We have held repeatedly that any point of appeal which is *185 not briefed and argued is deemed to have been waived. In Sunny Day Restaurant, Inc. v. Beacon Restaurant, Inc., 103 R.I. 707, 241 A.2d 295 (1968), we said that under our rules the appellant must identify the issue he intends to raise, articulate his points of argument, and indicate authoritative sources upon which he relies. In view of the important and far-reaching effect of this question, it is totally inappropriate for this court to rule on the issue where the plaintiff has deprived the court of the benefit of strong research of the full legal and policy issues presented in an adversary context. Therefore, that issue is deemed to have been waived, and the trial justice did not err in granting the motion for an involuntary dismissal.
The plaintiff's appeal is denied and dismissed, the judgment appealed from is affirmed, and the cause is remanded to the Superior Court.
POWERS, J., participated in the decision but retired prior to its announcement.
JOSLIN and DORIS, JJ., did not participate.
NOTES
[1] The law in this area is volatile, and various states have taken widely divergent views. 3 Davis, Administrative Law Treatise §§ 26.03 & 26.05 (1958, Supp. 1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262606/ | 84 Cal.Rptr.2d 487 (1999)
71 Cal.App.4th 990
Keith AUGUSTINE, et al., Petitioners,
v.
The SUPERIOR COURT of Riverside County, Respondent,
The People, Real Party in Interest.
No. E022778.
Court of Appeal, Fourth District, Division Two.
February 5, 1999.
As Modified on Denial of Rehearing March 5, 1999.
Review Denied April 28, 1999.
Margaret J. Spencer, Public Defender, Floyd Zagorsky, Chief Assistant Public Defender and Taylor Huff, Deputy Public Defender, for Petitioners.
No appearance for Respondent.
William C. Katzenstein, County Counsel and Robert M. Pepper, Principal Deputy County Counsel for Respondent.
OPINION
WARD, J.
In this matter we are asked to determine whether the trial court may destroy trial exhibits under the authority of Penal Code section 1417.1, or whether, on demand of the *488 defendant, the exhibits must be retained in custodia legis. In the circumstances of this case we find no error in the trial court's refusal to retain the specified exhibits, and we deny the petition for writ of mandate.
FACTS AND PROCEDURAL BACKGROUND
Petitioners are persons who have been convicted of felony criminal offenses in the County of Riverside. The county, through the court, has given notice of its intent to destroy exhibits which were introduced into evidence in the various criminal proceedings in which petitioners were involved. Petitioners, through the public defender, have objected.[1] With a single exception (see infra), the trial court rejected petitioners' request that the exhibits be maintained. The trial court did offer to release the exhibits to the public defender for storage in that official's domain. However, the offer was refused, and petitioners sought relief from this court. This court originally denied the petition summarily for the reasons which we explain in this opinion. Petitioners sought review in the Supreme Court, and that court directed us to vacate our order of denial and to issue an order to show cause. We have complied with this directive. However, it is commonly understood that a "grant and transfer" order does not necessarily reflect the high court's view of the merits of a case. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 284, 245 Cal.Rptr. 873.) Absent express directions, we remain free to reach the same conclusion we did on our earlier review. (See, e.g., U.D. Registry, Inc. v. Superior Court (1995) 39 Cal.App.4th 1241, 1243, 46 Cal.Rptr.2d 363.)
DISCUSSION
Penal Code section 1417.1 provides in part that "No order shall be made for the destruction of an exhibit prior to the final determination of the action or proceeding. For the purposes of this chapter, the date when a criminal action or proceeding becomes final is as follows: (a) When no notice of appeal is filed, 30 days after the last day for filing that notice, (b) When a notice of appeal is filed, 30 days after the date, the clerk of the court receives the remittitur affirming the judgment...." Penal Code section 1417.5 authorizes (and may even require) the court to "dispose" of exhibits in specified ways. For example, the owner may apply for return of tangible property. Unclaimed property may be sold, destroyed, or "otherwise disposed of," as may be appropriate. It is not disputed that proceedings as to all petitioners are "final" under the provisions of section 1417.1. However, petitioners contend that because they may file a collateral attack on their convictions at some future date, the trial court is obligated to preserve the exhibits. Alternatively, they contend that at least the "paper exhibits" must be retained. We do not find their arguments compelling. Finally, they argue that the trial court was required to hold evidentiary hearings on each of their requests. In the proper case, there may be a right to a hearing but, on this record, we do not get to that issue.
A. No Denial of Due Process Has Been Demonstrated by Reason of the Lower Court's Adhering to the Provisions of Penal Code Sections 1417.1 and 1417.5
Petitioners complain that section 1417.1 does not recognize the possibility of a collateral attack. This is true, because the statute determines finality with reference solely to direct attack on the judgment through appeal. It is also true that due process requires that exhibits be kept until the appellate process is complete if adequate review requires the appellate court to examine the actual documents or other objects admitted at trial. (In re Roderick S. (1981) 125 Cal.App.3d 48, 53, 177 Cal.Rptr. 800 [reversal required where reporter's transcript does not contain sufficient evidence of illegality of knife, and the knife is not available for appellate examination]; cf. People v. Pinholster (1992") 1 Cal.4th 865, 919-923, 4 Cal. Rptr.2d 765, 824 P.2d 571 [holding that insubstantial omissions in the record do not implicate constitutional protections].) However, it does not follow that due process, or *489 any other constitutional guarantee,[2] requires that exhibits be eternally maintained for potential use in a collateral attack, and absent any pertinent controlling authority, we decline to so hold.
Petitioners point to cases in which a successful petition for habeas corpus resulted in the annulment of a criminal conviction after many years. (E.g., Bloom v. Calderon (9th Cir.1997) 132 F.3d 1267, in which relief was granted eight years after the final affirmance on direct appeal.) It may well be, however, that the majority of such cases (like Bloom) are capital cases, in which the appeal process itself is lengthy and attempts at collateral relief often continue long after direct attack fails. Penal Code section 1417.1, subdivision (d), prohibits the destruction of exhibits in a capital case until 30 days after the execution of sentence. There is no contention here that the trial court is not complying with its obligation to retain such exhibits, and the memorandum issued by the court with respect to notification of proposed destruction expressly excepts capital cases.
Our Supreme Court has repeatedly stressed that habeas corpus relief should be sought expeditiously, and that a petitioner risks the rejection of the petition for untimeliness if there is no explanation for any delay. (See In re Clark (1993) 5 Cal.4th 750, 775, 21 Cal.Rptr.2d 509, 855 P.2d 729.) Ideally, appellate counsel will pursue any inquiries which might lead to the preparation of a habeas corpus petition while he or she is handling a defendant's appeal. As Clark and myriad of other cases teach (see, e.g., McCleskey v. Zant (1991) 499 U.S. 467 [111 S.Ct. 1454, 113 L.Ed.2d 517]; In re Swain (1949) 34 Cal.2d 300, 302, 209 P.2d 793), a convicted defendant is not entitled to seek relief by way of habeas corpus at defendant's leisure. One sound reason for this approach is that it may be impossible to afford one side or the other, or both, a fair retrial after the lapse of many years. As the court noted in In re Dixon (1953) 41 Cal.2d 756, 761, 264 P.2d 513, "evidence may have disappeared and witnesses may have become unavailable." (Italics added.) Obviously the state cannot be responsible for monitoring the location of witnesses year after year, still less for preserving their memories; however, petitioners would put upon the state the obligation to preserve physical evidence essentially in perpetuo.
Although counsel asserted below that each of the petitioners was currently pursuing collateral relief, no evidence of such activity was presented except with respect to one of the original petitioners, Angel Louis Montanez, Jr. In a motion for reconsideration of the trial court's order, it was established that a federal habeas corpus petition had been prepared on Montanez's behalf and was currently pending. The trial court, apparently relying on a "good cause" provision in its policy memorandum, directed that the Montanez exhibits be maintained. The other petitioners have no more than an inchoate intention of someday filing some sort of unspecified challenges to their convictions. The petitioners in this case, other than Montanez, cannot rely on the Constitution to force the court into the position of eternal custodian.
Penal Code section 1417.1 authorizes the court to destroy exhibits after a specified lapse of time. We are unpersuaded by petitioners' broad due process arguments, which are unsupported by specific authority.
The trial court offered to release the exhibits to the public defender on petitioners' behalf. (See Pen.Code, § 1417.5.)[3] This offer was rejected, as counsel insisted that his office was "not in the business of maintaining exhibits." Counsel also argued that such a practice would create "chain of custody" problems, although the court felt that it *490 would not be impossible to devise a suitable procedure.
By these arguments, petitioners simply attempt to force the court to store items rather than accepting responsibility for their own cases and interests.[4] Their arguments concerning the inconvenience and lack of security depend on the assumption that the court has a never-ending duty to preserve the integrity of every exhibit. We have rejected this claim.
Furthermore, it will virtually never be possible to recreate a trial with perfect exactitude. Witnesses disappear or forget; even evidence that is maintained by the court may deteriorate. We note too that the owner of a noncontraband exhibit has a right to its return. (Pen.Code, § 1417.5.) Do petitioners contend that this provision is unconstitutional because it might deprive them of the ability to obtain the exhibit? One may posit the case in which valuable items are introduced as exhibits; would petitioners believe it appropriate to force the owner into poverty while they lingered for years over the possibility of filing a collateral attack on a conviction? In short, the trial court had no duty to retain exhibits for petitioners' convenience where the statute properly provides for other routes of disposition.
B. Government Code Section 68152 Does Not Require the Preservation of Exhibits
Petitioners point out that Government Code section 68152, subdivision (e)(2) requires the courts to retain "court records" for a minimum of 75 years after a felony trial. "Court records" as defined in Government Code section 68151 includes "paper exhibits." Petitioners therefore argue that, at a minimum, the court is required to preserve "paper exhibits."
What "paper exhibits" does the statute refer to? The answer is far from clear. Government Code section 68151, subdivision (a) defines "court records" to include "(1) All filed papers and documents in the case folder;..." and "(2) Administrative records filed in an action or proceeding, depositions, paper exhibits, transcripts, including preliminary hearing transcripts, and tapes of electronically recorded proceedings filed, lodged, or maintained in connection with the case, unless disposed of earlier in the case pursuant to law." (Italics added.)
In one respect this statute confirms that the trial court properly refused to maintain all of the exhibits, because subdivision (a)(2) was amended in 1996 to specify that paper exhibits were to be maintained, not simply "exhibits" in general. Thus, there is clearly no statutory authority for petitioners' broad demand for retention of all exhibits.
Although Government Code section 68150 requires the court to preserve "court records," it does not oblige the court to preserve the records in their original physical form. Instead, "court records" may be preserved "in any form of communication or representation" produced by accepted technological standards for reproduction. Thus, to the extent that "paper exhibits" are "court records," the court need not preserve them other than by photocopying, imaging, or whatever the current state of the art may be. This leads ineluctably to the conclusion that "court records" are limited to items that can be preserved in such a fashion. The statutory examples are instructive: "administrative records ... depositions ... transcripts...."
Respondent further makes the compelling argument that the provision "unless disposed of earlier in the case pursuant to law" is intended to refer to Penal Code sections 1417.1 et seq., so that if exhibits are destroyed, returned, or otherwise disposed of in accordance with those provisions, they need not be maintained under the Government Code. The trial court properly rejected petitioners' attempt to rely on Government Code section 68152.
Finally, there is nothing in the record to establish whether the court is in fact preserving *491 as part of the record those "paper exhibits" which can be copied along with the motions, minute orders, transcripts, and other materials which form typical parts of "court records." In the absence of any showing one way or the other on the point, we will assume that "official duty is regularly performed." (Evid.Code, § 664; People v. Jackson (1996) 13 Cal.4th 1164, 1213, 56 Cal.Rptr.2d 49, 920 P.2d 1254.) We therefore take no action in this respect.
C No Basis Exists for Requiring Individual Hearings on the Issue of Exhibits
Finally, petitioners argue that the trial court should have conducted separate hearings on their requests. In our view this puts the burden in the wrong place. Penal Code section 1417.5 authorizes the trial courts to dispose of exhibits. We have found the statute not to be unconstitutional on its face. If petitioners wished to request preservation on the basis that destruction would in actuality affect a constitutional right, it was incumbent upon them to do more than merely state, in rote fashion, that they intended to file habeas corpus petitions at some unspecified time, raising unspecified issues, and without referring to or explaining the significance of any particular exhibit.
In People v. Gonzalez (1990) 51 Cal.3d 1179, 1260, 275 Cal.Rptr. 729, 800 P.2d 1159, the court stressed that after a conviction has been rendered, "all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them." (Original italics.) The principle is appropriately modified for application here. Any claim that a defendant has to the retention of his trial exhibits beyond the statutory period could only be justified by a specific, detailed showing concerning the potential merit of a collateral attack and the significance of particular exhibits to the defense. As no such showing was made here, the court was under no obligation to hold any type of individual hearings. We leave to a future case (or to the Legislature) the issue of whether a defendant is entitled to a hearing if he can show a good cause exception to routine destruction. Because petitioners here have not made an adequate showing, we do not reach the issue of whether any showing would be sufficient to require the court to retain exhibits.
DISPOSITION
The alternative writ, having served its purpose, is discharged. The petition for writ of mandate is denied.
RICHLI, Acting P.J., and GAUT, J., concur.
NOTES
[1] Apparently notices were sent to over 150 defendants. Petitioners are the 23 who notified the public defender that they objected to the destruction.
[2] In People v. Pinholster, supra, 1 Cal.4th 865, 4 Cal.Rptr.2d 765, 824 P.2d 571, for example, defendant argued that omissions in the record had an impact on the ability of his appellate attorney to provide constitutionally adequate representation.
[3] The statute allows release to "a person establishing... a right to possession" of the exhibit. Except where an exhibit was lawfully possessed by the defendant, it does not appear that the statutes give him any greater right to it than the county, which generally retains unclaimed exhibits for sale or other disposition. Because the trial court offered to release exhibits in petitioners' cases to petitioners, we need not determine whether a defendant could assert a right to an exhibit not claimed by an owner, but having sufficient value that the county was unwilling to give it up and indicated a desire to sell it.
[4] Petitioners point out that the Legislature has the responsibility to fund "state mandated" programs such as the retention of exhibits, and argue that this responsibility should not be transferred to them or their agent, the public defender. What this argument fails to appreciate is that the Legislature has mandated only retention for a limited time. Presumably any funding supplied by the state will be calculated to cover only such limited retention. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262608/ | 900 F.Supp. 1349 (1995)
IDAHO FARM BUREAU FEDERATION, a non-profit corporation, and American Farm Bureau Federation, a non-profit corporation, Plaintiffs,
v.
Bruce BABBITT, Secretary of Interior; John F. Turner, Director, U.S. Fish & Wildlife Service; Robert N. Smith, as Acting Director of U.S. Fish & Wildlife Service; Charles Lobdell, Director, Boise Field Office, U.S. Fish & Wildlife Service; U.S. Fish & Wildlife Service; and United States of America, Defendants,
and
Idaho Conservation League, Idaho Rivers United, and The Committee for Idaho's High Desert, Intervenors.
No. 93-0267-S-LMB.
United States District Court, D. Idaho.
August 31, 1995.
*1350 *1351 Gary D. Babbitt, Brad P. Miller, Boise, ID, for Plaintiff.
John L. Marshall, U.S. Department of Justice, Environmental & Natural Resources Division, Washington, DC, Laird J. Lucas, Boise, ID, D. Marc Haws, Asst. United States Attorney, Boise, ID, for Defendant.
MEMORANDUM DECISION AND ORDER
BOYLE, United States Magistrate Judge.
Currently pending before the Court are Plaintiffs' Motion for Summary Judgment (Docket No. 46); the Federal Defendants' Cross-Motion for Summary Judgment (Docket No. 53); the Federal Defendants' Motion to Strike Plaintiffs' Affidavits Filed in Support of Motion for Summary Judgment (Docket No. 71); Plaintiff Farm Bureau's Motion to Strike Frest and Hershler Affidavits (Docket No. 80); and the Federal Defendants' Motion to Enlarge Time to Respond to Plaintiffs' Supplemental Briefing (Docket No. 115).
The Court held a hearing on the cross-motions for summary judgment after which Plaintiffs were allowed to submit supplemental affidavits on the limited issue of standing, and both parties were allowed to file postargument briefs. Those materials have since been filed, and the matter has been fully argued, briefed and submitted to the Court for its consideration.
Having carefully reviewed the record, considered oral arguments, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order.
I.
BACKGROUND
On July 14, 1993, Plaintiffs Idaho Farm Bureau ("IFB") and American Farm Bureau Federation ("AFBF"), non-profit organizations representing the agricultural interests of farmers and ranchers across Idaho and the United States, filed this action seeking declaratory and injunctive relief against Bruce Babbitt, Secretary of the Interior, and other federal agencies and officers (hereinafter referred to as the "Federal Defendants"). On October 7, 1994, Plaintiffs amended their complaint, alleging violations of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq., and the Federal Advisory Committee Act ("FACA"), 5 U.S.C.App. 2, with respect to final listing by the Fish and Wildlife Service ("FWS") of four species of Snake River mollusks as endangered and one as threatened.
On January 1, 1994, the Idaho Conservation League, Idaho Rivers United and the Committee for Idaho's High Desert ("Intervenors"), non-profit environmental organizations, moved to intervene, which motion was granted by Order of the District Court on February 22, 1994 (Docket No. 20). The action is now properly before this Court for final determination.
As a preliminary observation, and as the District Court held on two prior occasions in this instant action, the proceeding is an administrative review of the actions and decisions of the FWS and is limited to the record before the agency, except on the legal issue of standing. Consequently, the parties seek to resolve this action as a matter of law on their respective cross-motions for summary judgment.
The facts pertinent to these proceedings are noteworthy and will be briefly summarized. On December 18, 1990, the FWS published a proposed rule under the ESA to determine the status of five species of mollusks *1352 found only in isolated segments of the Snake River and adjacent springs as endangered or threatened under the ESA, 16 U.S.C. §§ 1531-44. The five mollusks in question are the Idaho springsnail, the Utah valvata snail, the Snake River Physa snail, the Branbury Springs lanx, and the Bliss Rapids snail. This proposed listing was based on a number of scientific studies of the mollusks in question and their habitat, and concluded that the habitat was restricted to small portions of their historic range.
Public hearings on the proposal were held from late 1990 to the spring of 1991, during which the FWS received extensive public comment, including comments from some of the parties to this action. The comment period was opened a final time on October 31, 1991. Because there was extensive public interest relating to the issue of the listing of the mollusks, the FWS decided to have Dr. C. Michael Falter, a professor at the University of Idaho, review, summarize, and analyze the available information on the mollusks. To aid in his review, Dr. Falter invited a panel of technical personnel, as requested by the FWS, to meet on October 21-22, 1991 to help him with the project.
Dr. Falter's technical review panel was comprised of both disinterested, neutral scientists and also those who were considered "opponents" and "proponents" of the proposed listing. For example, Dr. Richard Konopacky attended the panel as a representative of Plaintiffs, while Drs. Terrence Frest and Peter Bowler attended as proponents of the listing. Other scientists were also invited to attend and participate with the panel. The panel was convened on October 21-22, 1991 as scheduled, but not all invitees were in attendance. After leading the group through a discussion of the relevant scientific information regarding the mollusks, Dr. Falter prepared a summary of the proceedings and, on November 22, 1991, sent a draft to all of the invited participants.
Dr. Falter solicited and received comments on the draft summary from those who attended the panel meetings, as well as those who did not attend. Although the technical "comment period" had passed, Dr. Falter incorporated many of these comments into another draft summary and, on February 14, 1992, circulated the revised draft to all invitees for further comment. Again, the experts submitted additional comments, many of which Dr. Falter included in his final report submitted to the FWS on or about March 26, 1992.
The FWS published its final decision on December 14, 1992 to list four mollusks as endangered, and one as threatened. In their Amended Complaint, Plaintiffs allege that this listing is arbitrary, capricious, and an abuse of discretion, that it is not based on the best available scientific data as required by the ESA, and that the listing violates various procedural requirements set forth in the ESA, the APA, and the FACA. In essence, Plaintiffs seek declaratory relief and an injunction "de-listing" the mollusks as endangered and threatened.
The Court has carefully reviewed the various memoranda filed by the parties, the cases cited therein, the arguments of counsel at the hearing, the several affidavits on the issue of standing, and the extensive fourteen volume administrative record on file. The issues are now ripe for decision.
II.
CROSS-MOTIONS FOR SUMMARY JUDGMENT
In their motion for summary judgment, Plaintiffs assert that they are entitled to summary judgment on the grounds that the FWS violated the FACA by improperly creating and administering the scientific review panel, and particularly by accepting comments from third parties outside the comment period; that the Federal Defendants did not timely list the five snails within the one year time limit after publishing notice of the proposed listing;[1] that the Federal Defendants failed to provide proper notice of *1353 the proposed listing to the affected counties; and that the listing is arbitrary and capricious because it violated the ESA's "best available scientific data" mandate.
In its cross-motion for summary judgment, the Federal Defendants argue that Plaintiffs lack standing to challenge the listing under the ESA and APA, that laches bars Plaintiffs' FACA claim, and that injunctive relief invalidating the listing under the FACA is inappropriate.
Because the Federal Defendants' motion challenging Plaintiffs' standing to bring their ESA and APA claims goes directly to the Court's subject matter jurisdiction, and may be dispositive of the entire proceeding, the Court will first determine whether Plaintiffs have standing to bring this action.
A. Summary Judgment Standard
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
The United States Supreme Court has made it clear that under Rule 56, summary judgment is required if the nonmoving party fails to make a showing sufficient to establish the existence of an element which is essential to his case and upon which he will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the nonmoving party fails to make such a showing on any essential element of his case, "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. at 2552.[2]
Under Rule 56 it is clear that an issue, in order to preclude entry of summary judgment, must be both "material" and "genuine." An issue is "material" if it affects the outcome of the litigation. An issue is "genuine" when there is "sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties' differing versions of the truth at trial," Hahn v. Sargent, 523 F.2d 461, 463 (1st Cir.1975) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968)), cert. denied 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976) or when 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, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986). The Ninth Circuit cases are in accord. See British Motor Car Distributors, Ltd. v. San Francisco Automotive Industries Welfare Fund, 882 F.2d 371 (9th Cir.1989).
In ruling on summary judgment motions, the court does not resolve conflicting evidence with respect to disputed material facts, nor does it make credibility determinations. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626 (9th Cir.1987). Moreover, all inferences must be drawn in the light most favorable to the nonmoving party. Id. at 631. As the Ninth Circuit Court of Appeals has stated, "[p]ut another way, if a rational trier of fact might resolve the issue in favor of the nonmoving party, summary judgment must be denied." Id.
In order to withstand a motion for summary judgment, the Ninth Circuit has held that a nonmoving party
(1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come *1354 forward with more persuasive evidence than would otherwise be necessary when the factual context makes the nonmoving party's claim implausible.
British Motor Car Distributors, 882 F.2d at 374 (citation omitted). Moreover, the Ninth Circuit has held that where the moving party meets its initial burden of demonstrating the absence of any genuine issue of material fact, the nonmoving party must "produce `specific facts showing that there remains a genuine factual issue for trial' and evidence `significantly probative' as to any [material] fact claimed to be disputed." Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983) (citing Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980)).
The Ninth Circuit Court of Appeals has acknowledged that in recent years the Supreme Court, "by clarifying what the nonmoving party must do to withstand a motion for summary judgment, has increased the utility of summary judgment." California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988). As the Ninth Circuit has expressly stated: "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id.
In addressing the application of the "Summary Judgment Test," the Ninth Circuit has specifically explained that:
A "material" fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit. The materiality of a fact is thus determined by the substantive law governing the claim or defense. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.
T.W. Electrical Serv., Inc., 809 F.2d at 630 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)) (emphasis added).
B. Standing to Sue Under the ESA and APA
The controlling Supreme Court case addressing the constitutional requirement of standing is Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In Defenders, the Supreme Court was confronted with the question whether Defenders of Wildlife, an environmental organization, had standing to sue the Secretary of the Interior under Section 7 of the ESA to force him to reinstate a rule that requires the application of the ESA to activities of the United States government in foreign countries.
Reviewing its earlier decisions on the issue of standing, the Supreme Court clearly stated that in order to meet the "cases" and "controversies" jurisdictional requirement of Article III of the United States Constitution, the party invoking federal jurisdiction bears the burden of establishing, at a minimum, the following elements: (1) the plaintiff must have personally suffered a concrete "injury in fact" to a legally protected interest, or that such an injury is imminent or "certainly impending"; (2) the injury must be fairly traceable to the challenged action; and (3) it must be likely, as opposed to merely speculative, that a favorable decision will redress the injury. Defenders, at 559-61, 112 S.Ct. at 2136. See also Pacific Northwest Generating Cooperative v. Brown, 38 F.3d 1058, 1062 (9th Cir.1994); Yesler Terrace Community Council v. Cisneros, 37 F.3d 442, 445 (9th Cir.1994).
A plaintiff must also establish a fourth element where it challenges agency action under the APA "parties seeking review under [the APA] must ... establish that the injury he or she complains of `falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the basis ... [of the] complaint.'" Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1354 (9th Cir. 1994) (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 883, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990)). See also Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972); Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995); Yesler, 37 F.3d at 445 (citing Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970)). Although this "zone of *1355 interests" requirement "is not meant to be especially demanding," Soler v. Scott, 942 F.2d 597, 605 (9th Cir.1991), vacated on other grounds, ___ U.S. ___, 113 S.Ct. 454, 121 L.Ed.2d 364 (1992), the interest Plaintiffs seek to vindicate must at least have "`a plausible relationship to the policies' underlying the statute." Id. (quoting Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 403, 107 S.Ct. 750, 757, 93 L.Ed.2d 757 (1987)).
Section 706 of the APA, 5 U.S.C. § 706, governs the Court's review of the agency actions being challenged under Plaintiffs' claims brought under Section 702 of the APA and under the ESA. See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981 (9th Cir.1985). See also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375, 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989); Animal Defense Council v. Hodel, 840 F.2d 1432, 1435-36 (9th Cir.1988), modified, 867 F.2d 1244 (9th Cir.1989); Idaho Farm Bureau Federation v. Babbitt, 839 F.Supp. 739, 744 (D.Idaho 1993), vacated on other grounds, 58 F.3d 1392 (9th Cir.Idaho 1995). Consequently, in order to meet their burden to show that they have standing to challenge the listing of the five mollusks in question under the APA, Plaintiffs must establish all four elements mentioned above.
1. Injury to Aesthetic/Recreational Interests
Federal courts employ a three part test to determine whether an association may assert claims on behalf of its members:
Such "representational standing" is appropriate where 1) the organization's members would have standing to sue on their own; 2) the interests the organization seeks to protect are germane to its purpose; and 3) neither the claim asserted nor the relief requested requires individual participation by its members.
Salmon River Concerned Citizens, 32 F.3d at 1352 n. 10 (citing International Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986); Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977)). See also Westlands Water District v. United States, 850 F.Supp. 1388, 1414 (E.D.Cal.1994).
In the instant action, the first element Plaintiffs must satisfy in order to establish aesthetic/recreational standing is that their members would have standing to sue on their own. To establish that their members have standing to sue on their own, Plaintiffs must "establish that the injury [their members] complain[] of `falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the basis ... [of the] complaint.'" Salmon River, 32 F.3d at 1354 (quoting Lujan, 497 U.S. at 883, 110 S.Ct. at 3186). It is not disputed that injury to such aesthetic or recreational interests asserted by Plaintiffs' members in their Amended Complaint can form the basis for standing under the ESA if that is an injury of which they complain.[3]See Defenders, 504 U.S. at 561-63, 112 S.Ct. at 2137. In this respect, Plaintiffs assert several grounds upon which they claim to be entitled to standing. First, Plaintiffs argue that they have standing based on the adverse impact the listing has or will have on some of their members' aesthetic and recreational enjoyment of the mollusk habitat. Plaintiffs attempt to establish non-economic "aesthetic/recreational" *1356 standing through the affidavits of two of their members, Earl J. Christiansen and Donald K. Campbell. Both members aver in their affidavits that they are interested in the conservation and preservation of the Snake River aquatic system, and that they routinely recreate in the mollusk habitat and aesthetically enjoy it. Christiansen further states that:
The FWS failed to scientifically define the habitat, range, population and distribution which will imperil the continued existence of the species and adversely impact my aesthetic and recreational use of the riverine habitat.
Christiansen Aff., ¶ 13 (Docket No. 79). Both Christiansen and Campbell then aver as follows:
The Final Rule adopted by the FWS adversely affects my recreational and aesthetic interests in riverine habitat of the Snake River.
Christiansen Aff., ¶ 14 (Docket No. 79); Campbell Aff., ¶ 14 (Docket No. 77). The threshold issue then becomes whether the injuries of which Plaintiffs' members complain are within the zone of interests protected by the ESA. After a careful analysis of controlling law, the Court concludes that they are not.
Plaintiffs argue that support for their contention that the sworn statements of their members are sufficient to establish an injury for the purposes of standing is found in Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir.1992). Plaintiffs assert that in Idaho Conservation League an injury giving rise to standing was established by the affidavit of a plaintiff who "simply declared that he routinely hiked to the Grand Mother Mountain Pinchet Butte, Mosquito Fly, and Meadow Creek Upper North Fork roadless areas. The services decisions, he explains, threaten his recreational use of those areas." Citing Idaho Conservation League, 956 F.2d at 1517, n. 18. What Plaintiffs fail to note in this respect is that plaintiffs in that action were challenging a decision not to designate roadless areas as wilderness areas. Plaintiffs contended in Idaho Conservation League that without the wilderness designation, the areas would ultimately be developed and this would cause them injury because they would not be able to enjoy the areas once developed. In the instant action, Plaintiffs make no such contention. To the contrary, Plaintiffs seek to "de-list" the five species so that the source of their recreation and aesthetic enjoyment, i.e. the water in the river, could be utilized for agricultural purposes. The averments of Christiansen and Campbell to the effect that because they recreate on and enjoy the river they are harmed by the FWS listing is opposite to the plaintiffs' position in Idaho Conservation League. It is clear from the record that Plaintiffs in the instant action cannot possibly establish that the area of the river and the water in which they recreate or aesthetically enjoy will be destroyed or harmed by the listing of the snails. Whereas, on the other hand, plaintiffs in Idaho Conservation League could in fact claim for standing purposes that their ability to recreate in and enjoy roadless areas of the wilderness area would be destroyed by development. Unlike the situation presented in Idaho Conservation League, Plaintiffs in the instant action simply do not have the necessary legal connection or relationship between the listing and preservation of the snails and the harm to the river habitat in which they recreate or aesthetically enjoy sufficient to establish standing.[4] For these reasons, the Court finds and concludes that Plaintiffs' conclusory statements of harm caused by the listing do not constitute an injury which falls within the zone of interests of the ESA.
Moreover, in the instant action, even if Plaintiffs' members had an injury to aesthetic or recreational interests which fell within the "zone of interests" of the ESA, Plaintiffs have failed to establish their right to litigate such interests on behalf of their members because they have failed to meet the second requirement of "representational standing." Here, as in Pacific Northwest, "there is nothing to show that [Plaintiffs] in making this claim [are] protecting an interest germane to [their] own purpose." Pacific Northwest, 38 F.3d at 1063 (citing Hunt, 432 U.S. at 343, 97 *1357 S.Ct. at 2441). The Amended Complaint filed in this instant action simply alleges that Plaintiffs are organizations representing "the economic, educational and social interests" of their members. Amended Complaint, ¶¶ 4, 5 (Docket No. 40). Further, none of the affidavits filed in this action establish that protection of Plaintiffs' members' aesthetic or recreational interests are germane to their organizations' purposes.
It is important to keep in mind for standing purposes that Plaintiffs bear the burden of proving that "the interests the organization seeks to protect are germane to its purpose." Salmon River, 32 F.3d at 1352 n. 10. Thus, when Plaintiffs argue that the representational requirement is a non-issue, and that there are no facts in the record that would support the Federal Defendants' argument that Plaintiffs represent only the economic interests of their members, Transcript of May 2, 1995 Hearing, p. 34, the point is missed. The only reasonable conclusion that can be reached is that there are no facts in the record which establish or indicate that Plaintiffs represent anything more than the "economic, educational and social interests" of their members, Amended Complaint, ¶¶ 4, 5 (Docket No. 40). Therefore, in the Court's view, Plaintiffs have failed to carry their burden of establishing standing as organizations established to represent the aesthetic/recreational interests of their members, both because the members of Plaintiffs' organizations lack the standing to sue individually and, more importantly, because Plaintiffs are not protecting an interest germane to their organizations' purpose in this regard.
2. Injury to Economic Interests
The second ground upon which Plaintiffs assert they have standing is that the listing of the mollusks "might" harm their water rights and otherwise economically injure their farming operations. See Amended Complaint, ¶¶ 4, 6. Plaintiffs satisfy the requirements of "representational standing" only if this injury they seek to protect, i.e. harm to economic interests, is germane to the organizations' purposes and is within the zone of interests sought to be protected by the statutes.
Aside from the speculative nature of the tentative allegation that their members "might" be injured, the question first raised by the assertion of this type of injury is whether it meets the fourth element of the test for standing mentioned above, i.e. whether the injury falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the basis of Plaintiffs' complaint. Salmon River, 32 F.3d at 1354 (quoting National Wildlife Federation, 497 U.S. at 883, 110 S.Ct. at 3186). See also Sierra Club, 405 U.S. at 733, 92 S.Ct. at 1365; Douglas County, 48 F.3d at 1499; Yesler, 37 F.3d at 445 (citing Ass'n of Data Processing Serv. Orgs. Inc., 397 U.S. at 153, 90 S.Ct. at 829-30). In determining whether a plaintiff in an ESA action complaining of injury to an economic interest passes the "zone of interest" test, "[t]he critical question is whether the plaintiffs' economic interest is a legal interest protected by the Endangered Species Act." Pacific Northwest, 38 F.3d at 1065.
The Ninth Circuit's decision in Pacific Northwest is particularly instructive on this point. The plaintiffs in that case, various companies purchasing power from the Bonneville Power Administration, brought an action against the Secretary of Commerce and other federal defendants under the ESA, challenging the defendants' response to the listing of the three salmon populations on the Snake River as endangered or threatened. In response to this listing, the Federal Defendants increased water flows in the Columbia River system in order to create water spills at the dams and to increase the velocity of the river in order to benefit the migration of juvenile salmon by enhancing the speed and success of the smolts' journey downstream.
The National Marine Fisheries Service subsequently issued a biological opinion concerning the impact of hydropower in the Columbia River Power System upon the listed species. The plaintiffs in Pacific Northwest argued that the opinion violated the ESA and the APA by addressing only hydropower and not comprehensively addressing all activities adversely affecting the listed species. Thus, plaintiffs contended in that action, hydropower operations bore a disproportionate amount of the increase in costs *1358 resulting from the actions taken by the Federal Defendants in protecting the species.
In determining whether the plaintiffs' economic interest in Pacific Northwest was a legal interest protected by the ESA, the Ninth Circuit required plaintiffs to show that their interests were connected to the protection of the species in dispute. The court made an interesting comparison of plaintiffs' economic interest in the protection of the salmon to the manufacturer of mink coats:
A manufacturer of mink coats has an interest in the preservation of mink, even though his interest is solely economic and he is consuming the mink. The interest of these plaintiffs in the salmon is not as closely tied to the fish as the mink manufacturer's tie to the animal; but nonetheless the plaintiffs do have a genuine economic interest in preserving the salmon and therefore an interest protected by the Endangered Species Act.
Pacific Northwest, 38 F.3d at 1065. Notwithstanding the foregoing, the court found the plaintiffs did not have standing to seek redress under the ESA for increases in hydropower costs resulting from the listing of the salmon:
On analysis, a portion of this claim goes beyond the basis for the plaintiffs' standing because it focuses on the increases in cost to hydropower operations. The plaintiffs are entitled to standing because preservation of the salmon will, in the long run, reduce their cost. But the plaintiffs are not entitled to standing simply to complain about the additional cost imposed on hydropower. Nothing in the Endangered Species Act confers a cause of action for that purpose.
Id. at 1067 (emphasis added).
Thus, where the only injury of which a plaintiff complains is that the challenged action under the ESA results in additional costs to its business operations, and where such harm cannot be relieved by preserving the species, such a claim is not within the "zone of interests" as contemplated in and protected by the ESA and therefore such cost will not confer standing. Id.; cf. Nevada Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir.1993) (compare the narrow scope of the ESA to the much broader purpose of NEPA, about which the Ninth Circuit held: "The purpose of NEPA is to protect the environment, not ... economic interests.... Therefore, a plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA."), cited in Douglas County, 48 F.3d at 1499.
In the instant action, Plaintiffs have not presented any evidence suggesting that the costs that they allege they have incurred, or will incur as a result of the Federal Defendants' actions, will in any way be relieved by preserving the mollusks. Indeed, the allegations in Plaintiffs' Amended Complaint and their own evidence establishes otherwise. See e.g. Affidavit of Kelly C. Searle, ¶ 8 (Docket No. 107) (the improvements made by the irrigation district in response to the listing, which caused his increased costs of which he complains, "were necessary to prevent the degradation of the snails' habitat and thus increase the likelihood of recovery for the five snails"). Nor is there any evidence in the record establishing that Plaintiffs otherwise have a "genuine economic interest in preserving the [mollusks]." Pacific Northwest, 38 F.3d at 1065.
The conclusory averments contained in the supplemental affidavits filed by Plaintiffs, to the effect that "[b]ecause I utilize the waters of the Snake River drainage, my economic status, as well as the recreational and aesthetic pleasures I derive from the river, will benefit from the health of the river and the species in it," Affidavit of Gerald Merchant, ¶ 8 (Docket No. 110), are insufficient to confer standing. There is no evidence in the record suggesting that, or how, the costs Plaintiffs allege to have incurred, or will incur as a result of the challenged action, will be remedied by preserving the mollusks, or that Plaintiffs otherwise have a genuine economic interest in preserving the mollusks.
Alternatively, even if the conclusory statements in the various members' affidavits mentioned above were adequately specific and detailed from which one could reasonably conclude that economic injuries of which Plaintiffs' members complain would somehow be alleviated by preserving the mollusks, despite the allegations of the Amended Complaint *1359 and extensive evidence in the record to the contrary, there is no evidence in the record indicating that the listing has impacted, or will somehow adversely impact, the five species of mollusks, thereby harming Plaintiffs' asserted economic interests in preserving the species. As indicated above, the only evidence Plaintiffs have submitted on this issue establishes that the challenged listing has aided in the recovery of the mollusks. See Searle Aff., ¶¶ 7-9.
Plaintiffs rely upon the following language from Pacific Northwest to support their contention that their economic interests are recognized legal interests protected by the ESA:
The present endangered or threatened status of the species imposes actual costs upon the plaintiffs. They have a real economic stake in changing the status. We see no reason why that economic interest is not convertible into a legal interest. Once that legal interest is recognized, the plaintiffs qualify for standing....
Pacific Northwest, 38 F.3d at 1066. Although the above language is correctly quoted, Plaintiffs' reliance thereon is misplaced because the Ninth Circuit Court of Appeals reached this conclusion only after finding sufficient evidence that the Pacific Northwest plaintiffs had a genuine economic interest in preserving the endangered species. The Ninth Circuit did not hold that any economic interest is a legal interest protected by the ESA, but required it be to preserve the species. The language quoted immediately above merely reaffirms this portion of that court's holding that the plaintiffs in Pacific Northwest had "a real economic stake in changing the status" of the species from threatened or endangered, not in overturning the listing of the species. In other words, the plaintiffs in Pacific Northwest had sufficiently established to that court's satisfaction that they had a concrete economic interest in the preservation of the species. However, as discussed above, the Ninth Circuit did not allow plaintiffs standing in Pacific Northwest simply to complain of increased costs to them resulting from the listing which could not be alleviated by protecting the species. Rather, plaintiffs had standing only to the extent that the threatened economic injuries could be prevented by preserving the species. It is clear from the record before the Court that Plaintiffs in the instant action have produced no such evidence suggesting that the threatened economic injuries of which they complain would be prevented by preserving the mollusks, or that Plaintiffs have an otherwise genuine interest in preserving any of the five species of mollusks.
In the Court's view, Plaintiffs' reliance upon Central Arizona Water Conservation Dist. v. United States Environmental Protection Agency, 990 F.2d 1531 (9th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 94, 126 L.Ed.2d 61 (1993), cited in Pacific Northwest, 38 F.3d at 1066, is similarly misplaced. In Central Arizona, the Ninth Circuit held that the plaintiff water district had standing to challenge a regulation of the Environmental Protection Agency, "even though the purpose of the Clean Air Act was to `enhance the air quality in national parks,' 42 U.S.C. § 7470(2) and the water district's interest was economic." Pacific Northwest, 38 F.3d at 1065-66. Plaintiffs conclude and urge based on this language that they should also have standing in this instant action to challenge the listing of the mollusks.
However, the Ninth Circuit in Central Arizona clearly based its holding to allow standing upon the following:
[T]he Districts' economic injury sufficiently falls within the "zone of interests" protected by the visibility provisions of the [Clean Air] Act [because] Section 169A of the Act requires the Administrator to consider "the costs of compliance" in setting standards to achieve reasonable progress towards the national visibility goal. 42 U.S.C. § 7491(g)(1). As entities required to pay those costs of compliance ... Petitioners [are within the "zone of interests" protected by the Act and therefore] have standing to bring this [action].
990 F.2d at 1539. Thus, because the Clean Air Act itself provided that the agency must consider the economic impact the proposed regulation may have on interested parties who complain about such regulations, such parties' economic interests clearly fell within the "zone of interests" protected by the statute.
However, for purposes of granting standing, the ESA has no provision similar to the *1360 "costs of compliance provision of the Clean Air Act." To the contrary, the United States Supreme Court has expressly held that "[t]he plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 2297, 57 L.Ed.2d 117 (1978) (emphasis added), cited in Douglas County, 48 F.3d at 1506. Thus, "plaintiffs are not entitled to standing simply to complain about the additional cost imposed [on their farming operations]. Nothing in the Endangered Species Act confers a cause of action for that purpose." Pacific Northwest, 38 F.3d at 1067.
3. Bennett v. Plenert The Ninth Circuit's Recent Confirmation of Standing Requirements
While the Court was in the final stages of writing this opinion, the Ninth Circuit released Bennett v. Plenert, 63 F.3d 915 (9th Cir.(Or.)1995), which helps resolve the issues presented here and confirms this Court's analysis on the preceding pages.
In Bennett, two Oregon ranch operators and two irrigation districts challenged the government's preparation of a biological opinion concluding that water levels in two reservoirs should be maintained to preserve two species of fish. Id. 916-17. The Ninth Circuit Court of Appeals held that the plaintiffs in that action did not have standing because the injuries of which they complained did not fall within the "zone of interests" protected by the ESA. Particularly important to the instant action is the following:
Having concluded that the zone of interests test applies, we must next determine whether the ESA protects plaintiffs who assert an interest of the type asserted here. We answer the question in the negative, holding that only plaintiffs who allege an interest in the preservation of endangered species fall within the zone of interests protected by the ESA.
Id. at 919-20 (emphasis added).
Regarding the plaintiffs' claim to aesthetic and recreational interests, the court explained:
The fact that the ranchers allege that they have an aesthetic and recreational interest in lower lake levels does not change anything. That interest even though not economic in nature does not serve the purpose of preserving any endangered species. Thus, it is not an interest protected by the ESA.
Id. at 921, n. 8. Similarly, in the instant action, while Plaintiffs' members complain of injury to their aesthetic/recreational interests, this alleged injury is not within the zone of interests of the ESA because to remedy such injury would not serve the purpose of protecting or preserving the listed snails. "Thus, it is not an interest protected by the ESA." Id. With respect to plaintiffs' asserted economic interests, the court in Bennett explained, "[w]e see no reason why the ESA should be construed in a different manner from either NEPA or the Clean Water Act." Id. at 920. Under NEPA, "we held that plaintiffs do not have standing under NEPA to protect `purely' economic interests, because the environmental purposes of the Act would not be furthered by permitting suits premised on such interests." Id. at 919-20 (citations omitted).
Based upon all of the foregoing, the Court concludes in this instant action that because Plaintiffs cannot establish that the injuries of which they complain, whether to their aesthetic/recreational interests or their economic interests, fall within the "zone of interests" protected by the ESA, they have not met their burden of establishing standing to challenge the listing of the mollusks under the ESA or the APA.
4. "Citizen Suit"/Procedural Standing
Finally, Plaintiffs contend that they are entitled to standing to challenge the listing of the mollusks by application of the "citizen suit" provision of the ESA, which provides, in pertinent part, that "any person may commence a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter." 16 U.S.C. § 1540(g)(1)(A). Plaintiffs therefore argue that the ESA's "citizen suit" provision automatically grants standing to them to assert all their claims of ESA violations.
*1361 The United States Supreme Court directly addressed and rejected this argument in Defenders. The Court held that the "citizen suit" provision cannot constitutionally be held to abrogate the requirement that the party seeking review must himself have suffered or is immediately in danger of suffering a concrete injury as a result of the allegedly invalid agency action. Defenders, 504 U.S. at 570-80, 112 S.Ct. at 2142-46. Therefore, Plaintiffs must still establish all the necessary requirements for standing mentioned above if the "citizen suit" provision is to avail them in this action. Id.
Plaintiffs argue they are nevertheless entitled to standing to redress procedural injuries based upon what the Ninth Circuit has called "footnote seven standing," so named for the standing analysis set forth in footnote seven of Defenders. In footnote seven, the Supreme Court discussed standing to assert "procedural rights":
There is this much truth to the assertion that "procedural rights" are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case-law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an Environmental Impact Statement, even though he cannot establish with any certainty that the Statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years.
Defenders, at 572 n. 7, 112 S.Ct. at 2142 n. 7. Hence, if persons or entities can qualify for this type of standing, they need not meet the normal requirements of immediacy and redressability. Id.
However, it is well established that not just any procedural injury will give rise to procedural standing. Yesler, 37 F.3d at 446. In order to establish procedural standing under footnote seven, Plaintiffs must satisfy three essential elements: (1) that they are persons who have been accorded a procedural right to protect their concrete interests, and (2) that Plaintiffs have some threatened concrete interests that are the ultimate basis of their standing. Douglas County, 48 F.3d at 1500. Put another way, these first two elements require that Plaintiffs seek "to enforce a procedural requirement the disregard of which could impair a separate concrete interest." Yesler, 37 F.3d at 446 (quoting Defenders, at 570-72, 112 S.Ct. at 2142). Finally, and most important here, Plaintiffs must show that this separate concrete interest is (3) within the "zone of interests" that the ESA is designed to protect. Douglas County, 48 F.3d at 1500-01 (citing Pacific Northwest Generating Cooperative v. Brown, 25 F.3d 1443, 1450 (9th Cir.), modified, 38 F.3d 1058 (9th Cir.1994) (cited language unchanged); Friends of the Earth v. United States Navy, 841 F.2d 927, 932 (9th Cir. 1988)). See also Bennett v. Plenert, 63 F.3d at 917, n. 1 (9th Cir.1995) ("We note that the zone of interests test applies even to plaintiffs who have established constitutional standing premised on a procedural injury.").
Although the court in Douglas County did not specify the origin of this "zone of interest" requirement, it may arise either from the "prudential limitations" on standing, see Pacific Northwest, 38 F.3d at 1065 (although the court noted that it is an open question whether the "prudential zone of interests" test is required for standing under the ESA, the court "assume[d] that the requirement must be met"); or it may also arise directly from footnote seven. See Defenders, at 573 n. 8, 112 S.Ct. at 2143 n. 8 (to obtain procedural standing, plaintiffs must establish that "the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing") (emphasis added). Regardless of its origin, however, the Ninth Circuit clearly and unequivocally requires that the "zone of interest" test be satisfied for "footnote seven" procedural standing. See Bennett, 63 F.3d at 917 n. 1; Douglas County, 48 F.3d at 1500-01.
In applying these three elements necessary for "footnote seven" procedural standing to the facts in the instant action, it is helpful to examine how they have been applied by the Ninth Circuit Court of Appeals in recent decisions. In Pacific Northwest, the Ninth Circuit held that the plaintiffs in that action were arguably in the position of the above *1362 hypothetical plaintiff in Defenders because the Pacific Northwest plaintiffs "are entities whose way of conducting business may be affected by the alleged failures of the federal agencies under the Endangered Species Act." Pacific Northwest, 38 F.3d at 1065. Consequently, plaintiffs in that action had a concrete interest threatened by the proposed listing of the salmon as endangered species. However, "the critical question is whether [this] interest is a legal interest protected by the ESA." 38 F.3d at 1065. The Court concluded that because "[these Plaintiffs] have a genuine interest in preserving the salmon [they] therefore [have] an interest protected by the ESA." Id. (emphasis added). The Pacific Northwest plaintiffs were therefore able to satisfy the most important "zone of interest" requirement.
Similarly, in Douglas County, the county was able to establish "footnote seven" procedural standing because it satisfied the three elements described above. With respect to the first element, the county had been accorded a procedural right to comment on the Environmental Impact Statement "because NEPA provides that local agencies ... may comment on the proposed federal action." 48 F.3d at 1501. With regard to the second element, the county had a concrete interest in the protection of land in which it had a proprietary interest, which was the ultimate basis of its standing. Finally, and most importantly, the Ninth Circuit found that the injury of which the county complained was within the "zone of interests" protected by NEPA because:
The affidavit of Kenneth Hendrick, director of the Land Department for Douglas County, expresses concerns with the proposed critical habitat designation. Hendrick alleges that the land management practices on federal land could affect adjacent county-owned land: "By failing to properly manage for insect and disease control and fire, the federal land management practices threaten the productivity and environment of the adjoining [county] lands." (cites record).
These statements describe concrete, plausible interests, within NEPA's zone of concern for the environment, which underlie the County's asserted procedural interests. It is logical for the County to assert that its lands could be threatened by how the adjoining federal lands are managed.
48 F.3d at 1501 (emphasis added). The court therefore held in Douglas County that the county had established a concrete interest by virtue of its proprietary interest in the adjoining land, that the interest was within the "zone of interests" protected by NEPA because the interest sought to be protected was for the protection of the environment, and that such an interest was threatened by the "critical habitat" designation.
In the instant action, Plaintiffs clearly have a concrete interest by virtue of their proprietary interest in land and water in close proximity to the areas that will be affected by the mollusk listing, similar to the concrete interest of the hypothetical plaintiff near the proposed dam in footnote seven, and similar to both of the plaintiffs in Pacific Northwest and Douglas County. However, as discussed above, there is no showing here similar to that established in Pacific Northwest that Plaintiffs' economic interests are linked to the preservation of the mollusks. Nor have Plaintiffs made a showing similar to the plaintiffs in Douglas County that the threat to their proprietary interests in their property and water rights caused by the mollusk listing is a threat to the species on that property. To the contrary, the Amended Complaint on file here clearly and unambiguously describes the threat to Plaintiffs' proprietary interests as follows:
Listing of these five mollusks might result in the loss of water for agricultural as well as family use and/or in the restriction on the farming practices and use of privately owned agricultural lands, having an adverse impact on individual farmers and ranchers.
* * * * * *
IFB, AFBF and their individual members are aggrieved by the listing of these five snails because it threatens the continued viability of water rights held by area member farmers and ranchers, and also threatens the continuance of certain farming and ranching practices necessary to maintain viable farm and ranch operations.
*1363 Amended Complaint, ¶¶ 4, 6. Clearly, these injuries of which Plaintiffs complain do not "fall[] within the `zone of interests' sought to be protected by the statutory provision whose violation forms the basis ... [of the] complaint." Salmon River, 32 F.3d at 1354 (quoting National Wildlife Federation, 497 U.S. at 883, 110 S.Ct. at 3186).
Furthermore, Plaintiffs have not demonstrated, even if they were complaining of injury to a concrete, proprietary interest in the preservation of the mollusks or other species, that such an interest is "threatened" or "could be impaired" by the allegedly improper listing of the mollusks. As previously discussed, Plaintiffs' own evidence submitted in this respect demonstrates that the listing of which they complain has resulted in measures that were necessary and beneficial to the mollusks and their habitat, rather than harmful. See Searle Aff., ¶¶ 7-9. Thus, even assuming Plaintiffs have a genuine interest in preserving species whose habitat is adjacent to land and water in which they have a proprietary interest, they have failed to establish that they are "seek[ing] to enforce a procedural requirement the disregard of which could impair [that] separate concrete interest." Yesler, 37 F.3d at 446 (quoting Defenders, 504 U.S. at 572 n. 7, 112 S.Ct. at 2142 n. 7).
Consequently, because Plaintiffs have not met their burden to show that the injuries of which they complain fall within the "zone of interests" protected by the ESA and, alternatively, because Plaintiffs have not shown that their interest in the preservation of the mollusks or other species could be impaired by the challenged action, Plaintiffs are not entitled to procedural standing under footnote seven. Therefore, after careful consideration of the record and controlling precedent, the Court concludes that because Plaintiffs have failed to meet their burden of establishing standing to bring suit under the APA or directly under the ESA's "citizen suit" provision, Defendants' cross-motion for summary judgment must be granted on the issue of standing.
C. FACA Procedural Violations
The only surviving claims not brought under the ESA or under the APA are Plaintiffs' claims that the Federal Defendants violated the procedural provisions of the FACA. Initially, the Federal Defendants argue that Plaintiffs lack standing to complain about the alleged FACA violations. Alternatively, they argue that Plaintiffs' FACA claims are barred by the doctrine of laches. On the merits, the Federal Defendants contend that the FACA does not apply to the committee in question, and finally, even if it did, an injunction "de-listing" the mollusks is not a proper remedy.
1. Standing to Challenge Procedural Violations
In their cross-motion for summary judgment, the Federal Defendants first argue that Plaintiffs do not have standing to complain of the FWS's alleged failure to follow the FACA procedures because they have not suffered any injury as a consequence.
As discussed above, Plaintiffs bear the burden of establishing, at a constitutional minimum, the following elements: (1) plaintiffs must have personally suffered a concrete "injury in fact" to a legally protected interest, or that such an injury is imminent or "certainly impending"; (2) the injury must be fairly traceable to the challenged action; and (3) it must be likely, as opposed to merely speculative, that a favorable decision will redress the injury. Defenders, at 559-61, 112 S.Ct. at 2136; Pacific Northwest, 38 F.3d at 1062; Yesler, 37 F.3d at 445.
In this regard, the Federal Defendants first argue that Plaintiffs have failed to show that the FACA violations caused them any injury. Thus, the Federal Defendants argue, because Plaintiffs received actual notice of the technical review panel, actively participated in the composition, meetings, and summary report of the technical review panel, and even developed their own transcript by video-taping the proceedings, they suffered no concrete injury as a result of the alleged FACA violations. Alternatively, they argue that even if Plaintiffs could establish an injury, the procedural injuries of which they complain are not redressed by their request for relief; i.e., "de-listing" the mollusks.
However, such requirements of causation and redressability are relaxed where a *1364 plaintiff can establish a "procedural injury" under footnote seven of Defenders. 504 U.S. at 572 n. 7, 112 S.Ct. at 2142 n. 7. Here, with respect to the FACA claim, Plaintiffs in this instant action are "arguably in the position of the hypothetical plaintiff in Defenders. ..." Pacific Northwest, 38 F.3d at 1064. With respect to the first element necessary for standing, the FACA clearly accords Plaintiffs the procedural rights they claim were denied them, i.e., that FWS failed to (1) prepare and file a charter; (2) chair the meeting; (3) publish notice of the meeting; and (4) prepare and maintain minutes of the meeting. See 5 U.S.C.App. 2, §§ 9, 10. Furthermore, as previously indicated, Plaintiffs' members clearly have concrete economic and other similar interests in the land and water in which they have proprietary interests adjacent to the areas affected by the listing.
Moreover, unlike the foregoing analysis of procedural injuries under the ESA, Plaintiffs do not experience similar problems in satisfying the "zone of interests" test under the FACA. The purpose of the FACA is "to cure specific ills, above all the wasteful expenditure of public funds for worthless committee meetings and biased proposals." Public Citizen v. Department of Justice, 491 U.S. 440, 453, 109 S.Ct. 2558, 2566, 105 L.Ed.2d 377 (1989) (emphasis added). Clearly, Plaintiffs' asserted injury, i.e. that the FACA violations resulted in a biased recommendation from the committee, falls within the "zone of interests" protected by the FACA.
Having satisfied all three elements for procedural standing, Plaintiffs need not satisfy the standards of causation and redressability because "Congress has linked [these procedures] causally" to unbiased recommendations. Pacific Northwest, 38 F.3d at 1065. Consequently, Plaintiffs need not show that the failure of the FWS to follow the FACA procedures caused the ultimate injuries which they assert as the ultimate basis of their standing, or that the requested remedy will redress the asserted injury. Thus, the Federal Defendants' argument that "de-listing" the mollusks will not redress the injury of which Plaintiffs complain is without merit. The Court therefore concludes that Plaintiffs at least have "footnote seven" procedural standing to complain about the alleged failure of the FWS to comply with the FACA.
2. Availability of Injunctive Relief
Having concluded that Plaintiffs have "footnote seven" standing to challenge the Federal Defendants' failure to comply with the FACA, the Court will address the issue on the merits. The Federal Defendants first argue that Plaintiffs' claim under the FACA is barred by the doctrine of laches because they waited twenty-six months, until after the final rule listing the mollusks was issued, to seek an injunction. The Federal Defendants also argue that the technical review panel was not an "advisory committee" within the meaning of the FACA. Finally, the Federal Defendants contend that injunctive relief invalidating the final listing is inappropriate under the FACA. The Court need not address the first two issues because, even assuming Plaintiffs' claims were not barred by laches and the technical review panel was an "advisory committee," because a mandatory injunction "de-listing" the mollusks is not an appropriate remedy for the alleged FACA violations.
In Seattle Audubon Soc'y v. Lyons, 871 F.Supp. 1291 (W.D.Wash.1994), the court was faced with a situation almost identical to that presented by Plaintiffs' FACA claim in the instant action. There, the plaintiffs, comprised of environmental groups and an organization representing the timber industry, challenged the validity of a forest management plan adopted by the Secretaries of Agriculture and Interior, allegedly in violation of the FACA. The Forest Ecosystem Management Assessment Team ("FEMAT"), an interagency, interdisciplinary team of scientists, sociologists, and other experts, was established by the executive branch of the federal government to conduct a conservation and management assessment of all federal forests within the range of the northern spotted owl. In an earlier, related case, the logging organization obtained a declaratory judgment that FEMAT was convened in violation of the FACA requirements, including those of open meetings and being constituted with a balanced membership and pursuant to filed advisory committee charter.
*1365 Thereafter, in Seattle Audubon Soc'y, the group sought an injunction invalidating the management plan for the FACA violations. The court held that "FACA can and should be enforced ... by an order requiring that a proposed or existing committee comply with the statute." Id. at 1309. Nevertheless, the court declined to grant the requested injunctive relief because "once a committee has served its purpose, courts generally have not invalidated the agency action even if there were earlier FACA violations," id., quoting Judge Friendly as follows:
So far as we are aware, no court has held that a violation of FACA would invalidate a regulation adopted under otherwise appropriate procedures, simply because it stemmed from the advisory committee's recommendations, or even that pending rulemaking must be aborted and a fresh start made. We perceive no sound basis for doing so. Applicable rulemaking procedures afford ample opportunity to correct infirmities resulting from improper advisory committee action prior to the proposal.
Id. at 1309-10 (quoting National Nutritional Foods Ass'n v. Califano, 603 F.2d 327, 336 (2nd Cir.1979) (Friendly, J.)) (also citing Center for Auto Safety v. Tiemann, 414 F.Supp. 215, 226 (D.D.C.1976), remanded on other grounds, 580 F.2d 689 (D.C.Cir.1978) (availability of subsequent opportunity for comment and for review of the final regulation under the Administrative Procedure Act cures a FACA violation); Washington Legal Foundation v. Dept. of Justice, 691 F.Supp. 483, 495-96 (D.D.C.1988), aff'd sub nom., Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (public accountability aspects of the FACA satisfied by subsequent opportunity to question)).
Plaintiffs in the instant action make a similar claim that they are entitled to an injunction invalidating the final rule listing the mollusks, due to the alleged FACA violations. They cite Alabama-Tombigbee Rivers Coalition v. Department of Interior, 26 F.3d 1103 (11th Cir.1994) in support of that claim. In Alabama-Tombigbee, the plaintiffs, a group of businesses and organizations that operated in Alabama and Mississippi, alleged that the defendants' listing of the Alabama sturgeon as an endangered species would adversely impact them and thousands of jobs in the area. Therefore, when the FWS restructured the scientific advisory panel appointed to assess the status of the sturgeon in violation of the FACA, the plaintiffs gave notice three days before the planned release of the committee report of their intention to seek a temporary restraining order to stop the release of the report. The FWS nevertheless announced in a press release that the scientists' summary findings supported the listing of the sturgeon as an endangered species. Id. at 1105.
As a result of the FACA violations, the district court permanently enjoined the defendants from "publishing, employing and relying upon the Advisory Committee report ... for any purpose whatsoever, directly or indirectly, in the process of determining whether or not to list the Alabama sturgeon as endangered species." Id. The Eleventh Circuit affirmed, citing with approval the following analysis of the district court:
A simple "excuse us" cannot be sufficient. It would make FACA meaningless, something Congress certainly did not intend.... The court sees no reason to retreat from its conclusion that FACA was designed by Congress to prevent the use of any advisory committee as part of the process of making important federal agency decisions unless that committee is properly constituted and produces its report in compliance with the procedural requirements of FACA, particularly where, as in this case, the procedural shortcomings are significant and the report potentially influential to the outcome.
Id. at 1106. Therefore, the Eleventh Circuit held that because "[a]bsent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction," id. at 1107 (citing Califano v. Yamasaki, 442 U.S. 682, 705, 99 S.Ct. 2545, 2559-60, 61 L.Ed.2d 176 (1979)), an injunction against using the report which was obtained in violation of the FACA was an appropriate remedy.
Significantly, in a footnote the Eleventh Circuit "acknowledge[d] that other Circuits *1366 having affirmed the denial of injunctive relief requested as a result of FACA violations." Id. at 1106 n. 8 (citing National Nutritional Foods, 603 F.2d 327). However, the Eleventh Circuit recognized that those courts "found that on the facts of the cases before them, injunctive relief was inappropriate. We have different facts before us and, accordingly, reach a different result." Id.
Thus, when the plaintiffs in Seattle Audubon Soc'y also cited Alabama-Tombigbee in support of their contention that injunctive relief invalidating the listing was appropriate, the district court appropriately distinguished the facts involved in Seattle Audubon Soc'y from those presented in Alabama-Tombigbee, as suggested by the Eleventh Circuit in the latter case. The controlling fact distinguishing the two cases was that in Alabama-Tombigbee, the plaintiffs obtained a temporary restraining order before the report was distributed and used by the government. Seattle Audubon Soc'y, 871 F.Supp. at 1310. Thus, the court concluded that "Alabama-Tombigbee would not require automatic invalidation of the agency action, and can be reconciled with the more numerous cases denying injunctive relief." Id.
In addition, the fact that the FEMAT report in Alabama-Tombigbee had been circulated during the ninety-day comment period and was subject to public comments and criticisms, including those by the plaintiffs, provided further support for the court's conclusion that the "procedures afford[ed] ample opportunity to correct infirmities." Id. (quoting National Nutritional Foods, 603 F.2d 327).
In the instant action, Plaintiffs formally voiced their objections to the FACA violations as early as May 7, 1992 (A.R.IV.A. 145). They nevertheless waited to seek the injunctive relief they request, i.e. invalidation of the final rule listing the mollusks, rather than simply foreclosing the use of the report, until well after the final decision listing the mollusks was issued on December 14, 1992. See Amended Complaint, ¶ 64. Thus, under Seattle Audubon Soc'y and National Nutritional Foods, although Plaintiffs might have obtained an injunction against the use of the Falter report, Plaintiffs cannot now obtain the requested injunctive relief of "de-listing" the mollusks after the final decision has been made.
Furthermore, as in Seattle Audubon Soc'y, the instant record is replete with evidence that the proposed listing, and even the Falter report, were subjected to public comments and criticisms, including those made by Plaintiffs before the report was issued. Plaintiffs, both through their members and through their consultant, Dr. Richard Konopacky, participated extensively in the public hearings, the panel meeting, and by submitting written comments. See e.g., A.R. II. B.23 (letter from D.L. Osbourne, Gooding County Farm Bureau); A.R. II.B.35 (letter from Rayola Jacobson, Idaho Farm Bureau); A.R. II.C.7 (testimony of Rayola Jacobson); A.R. II.D.6; II.D.12 (testimony and appearance of Jim Yost, Idaho Farm Bureau); A.R. II.C.1 at 52-56 (testimony of Rayola Jacobson); A.R. II.C.1. at 31-38; II.D.1 at 9-17 (oral testimony by Dr. Konopacky on behalf of Farm Bureau); A.R. III.A.8 (Dr. Konopacky present at the panel meeting).
Additionally, Plaintiffs, through their consultant Dr. Konopacky, twice took advantage of the opportunity given him and other panel members in attendance and others who did not attend the meeting, to submit comments on Dr. Falter's draft summaries of the panel discussions before he submitted the final summary report to the FWS. See A.R. II. F.57; II.F.58. In fact, Dr. Konopacky had the opportunity to reply substantively to the post-meeting comments on the summary upon which Plaintiffs base most of their FACA objections, but it appears from a review of the record that he chose to make only procedural comments. See A.R. II.F.58. Consequently, it is clear here, as in National Nutritional Foods and Seattle Audubon Soc'y, that Plaintiffs were "afford[ed] ample opportunity to correct infirmities." Seattle Audubon Soc'y, 871 F.Supp. at 1310 (citing National Nutritional Foods, 603 F.2d 327).
Accordingly, the Court concludes in light of the foregoing factual history and legal authorities that even if Dr. Falter's technical review panel constituted an "advisory committee," and Plaintiffs claims based on the FACA violations were not barred by the doctrine of laches, Plaintiffs are not entitled *1367 to an injunction "de-listing" the mollusks on that basis now that the final rule has been issued. The Federal Defendants' cross-motion for summary judgment should therefore be granted.
D. Summary and Observation
In light of the foregoing, the Court finds that Plaintiffs have failed to establish standing to challenge the listing of the mollusks under the ESA and APA based on injury to their members' aesthetic/recreational interests and to their economic interests. The Court is also satisfied that Plaintiffs have failed to establish "footnote seven" procedural standing to challenge the listing of the mollusks under the "citizen suit" provision of the ESA. Finally, Plaintiffs' claim for injunctive relief invalidating the final decision listing the mollusks under the FACA is not available in the circumstances of this action. Consequently, the Court concludes that the Federal Defendants' cross-motion for summary judgment must be granted on those issues, and the instant action must be dismissed because Plaintiffs do not have standing to bring this action.
The Court's conclusion that Plaintiffs do not have standing to assert their claims in this action is compelled by the recent United States Supreme Court and Ninth Circuit Court of Appeals rulings on the doctrine of standing, which this Court is bound to follow. Moreover, the Court's ruling is required by the specific language of the ESA, as interpreted by the federal appellate courts, that compels this conclusion. Any other decision made by this Court would not be based on controlling legal principles or precedent, and would be judicial legislation which is not the role of the judiciary in resolving disputes.
Consequently, the relief Plaintiffs seek is best directed to Congress and committed to the political process, wherein such issues and debates are handled most consistently within our constitutional and democratic form of government. In the Court's view, it is Congress and the legislative process, and not the judiciary, that has the authority and is in the best position to remedy the inequities presented in the Endangered Species Act that have been so aptly demonstrated in this case.
III.
REMAINING MOTIONS
Both parties filed motions to strike various affidavits and declarations on the basis that because review of this action is limited to the administrative record, the disputed affidavits and declarations are inappropriate and should not be considered by the Court.
These affidavits and declarations go to the substantive issue of whether the FWS properly listed the mollusks as endangered or threatened. Therefore, because the Court has concluded that Plaintiffs do not have standing to challenge the listing under the ESA or the APA, the Court does not reach the substantive issues. Consequently, the motions to strike are MOOT.
Federal Defendants' Motion to Enlarge Time to Respond to Plaintiffs' Supplemental Briefing (Docket No. 115) is granted nunc pro tunc.
IV.
ORDER
Based on the foregoing, and good cause appearing therefor,
IT IS HEREBY ORDERED:
1. Plaintiffs' Motion for Summary Judgment (Docket No. 46) is DENIED.
2. Federal Defendants' Cross-Motion for Summary Judgment (Docket No. 53) is GRANTED, inasmuch as Plaintiffs have failed to meet their burden of establishing standing to challenge the listing of the mollusks as endangered or threatened under the APA and ESA, and because the injunctive remedy Plaintiffs seek by their FACA claim, i.e. "de-listing" the mollusks, is not appropriate.
3. Federal Defendants' Motion to Strike Plaintiffs' Affidavits Filed in Support of Motion for Summary Judgment (Docket No. 71) is MOOT.
4. Farm Bureau's Motion to Strike Frest and Hershler Affidavits (Docket No. 80) is MOOT.
5. Federal Defendants' Motion to Enlarge Time to Respond to Plaintiffs' *1368 Supplemental Briefing (Docket No. 115) is GRANTED nunc pro tunc.
6. This action is DISMISSED in its entirety.
SO ORDERED.
NOTES
[1] In a related case, Idaho Farm Bureau v. Babbitt, 58 F.3d 1392 (9th Cir.Idaho 1995), the Ninth Circuit recently rejected this identical claim raised by Plaintiff IFB in that action. Id. at 1400-02. Consequently, in this instant action, Defendants are entitled to summary judgment on this issue for the reasons stated by the Ninth Circuit in Idaho Farm Bureau in addition to the reasons set forth hereinbelow.
[2] See also Rule 56(e), which provides in part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
U.S.S.C. Court Rules, Rules of Civil Procedure, Rule 56(e) (Law. Co-op.1987 & Supp.1991).
[3] It may be argued that aesthetic/recreational harm is not an injury of which Plaintiffs complain or otherwise seek to remedy in their pleadings. For example, the amended complaint filed in this action does not mention Plaintiffs' desire to vindicate their aesthetic and recreational rights protected by the ESA. Rather, the amended complaint alleges only that their "members are aggrieved by the listing of these five snails because it threatens the continued viability of water rights held by area member farmers and ranchers, and also threatens the continuance of certain farming and ranching practices necessary to maintain viable farm and ranch operations." Amended Complaint, p. 6 ¶ 6 (Docket No. 40) (emphasis added). While Plaintiffs do not allege such injury in their pleadings, they have produced sworn affidavits of their members which allege injury to aesthetic and recreational interests. Christiansen Aff. (Docket No. 79); Campbell Aff. (Docket No. 77). For purposes of analyzing the standing issue, the Court will assume that aesthetic and recreational interests have been plead as contained in the affidavits of Christiansen and Campbell. However, upon application of controlling law, the Court concludes that even if the pleadings allege such injury, Plaintiffs still do not have standing based upon the following analysis.
[4] See also infra, Part II.B.3, pp. 20-21, for a discussion of a very recent Ninth Circuit case which also holds that interests such as those asserted here by Plaintiffs are not within the zone of interests of the ESA. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262614/ | 163 Conn. 304 (1972)
STATE OF CONNECTICUT
v.
WILFREDO S. VEGA
Supreme Court of Connecticut.
Argued June 14, 1972.
Decided June 26, 1972.
HOUSE, C. J., RYAN, SHAPIRO, LOISELLE and MACDONALD, JS.
*305 Edmund J. Ramos, and Theodore Krieger of the New York bar, for the appellant (defendant).
Donald A. Browne, assistant state's attorney, with whom, on the brief, was Joseph T. Gormley, Jr., state's attorney, for the appellee (state).
SHAPIRO, J.
The defendant was convicted by a jury of the crime of manslaughter in violation of § 53-13 of the General Statutes. In this appeal from the judgment rendered on that verdict, he pursues two assignments of error. See Maltbie, Conn. App. Proc. § 327.
In his first assignment of error, the defendant relies on Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247, in support of his claim that the trial court erred in allowing testimony given by the defendant at a pretrial hearing on a motion to suppress evidence on constitutional grounds to be utilized to impeach his testimony at the trial. During its cross-examination of the defendant, the state had endeavored to impeach his credibility by establishing inconsistencies between his direct testimony at the trial and that which he had given pursuant to his unsuccessful motion to suppress.
In the Simmons case, the codefendant Garrett *306 had filed a pretrial motion to suppress as evidence a particular suitcase and its contents which were in the possession of the state, and in support thereof he offered testimony at the suppression hearing admitting ownership of the suitcase in order to establish his standing. That testimony was thereafter presented at his trial by the state as part of its case on the issue of guilt. The United States Supreme Court observed that Garrett thus was obligated either to give up what he believed to be a valid fourth amendment claim or, in legal effect, to waive his fifth amendment privilege against self-incrimination. "In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt [emphasis added] unless he makes no objection." Simmons v. United States, supra, 394.
The language of the United States Supreme Court in Simmons clearly limits the holding to that factual situation where the earlier motion testimony is offered as substantive evidence to convict. Quite clearly the evidence in the case at bar was admitted not on the issue of guilt but merely as prior inconsistent statements for the limited purpose of impeaching the credibility of the defendant as a witness.[1]
It is elementary that a defendant who elects to testify in his own behalf is subject to cross-examination and impeachment just as is any witness. *307 McGautha v. California, 402 U.S. 183, 215, 91 S. Ct. 1454, 28 L. Ed. 2d 711; Grunewald v. United States, 353 U.S. 391, 420, 77 S. Ct. 963, 1 L. Ed. 2d 931; Raffel v. United States, 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed. 1054; Sharp v. United States, 410 F.2d 969, 970 (5th Cir.); State v. Keating, 151 Conn. 592, 597, 200 A.2d 724, cert. denied, sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557; State v. Reid, 146 Conn. 227, 232, 149 A.2d 698; State v. Walters, 145 Conn. 60, 66, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S. Ct. 70, 3 L. Ed. 2d 45. "[I]t is proper to attack a witness' credibility by evidence of his materially inconsistent statements. State v. Walters, 145 Conn. 60, 66, 138 A.2d 786." State v. Keating, supra.
Testimony under oath voluntarily given by an accused at a hearing to suppress evidence may be used to impeach later contrary statements. Sharp v. United States, supra, 971; Bailey v. United States, 389 F.2d 305, 311 (D.C. Cir.); Gordon v. United States, 383 F.2d 936, 941 (D.C. Cir.) (Burger, Circuit Judge); Woody v. United States, 379 F.2d 130, 132 (D.C. Cir.), cert. denied, 389 U.S. 961, 88 S. Ct. 342, 19 L. Ed. 2d 371 (Burger, Circuit Judge); Humphrey v. United States, 236 A.2d 438, 439 (D.C. App.); see also United States v. Budzanoski, 331 F. Sup. 1201, 1205 (W.D. Pa.). "Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.... Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than to utilize the traditional truth-testing devices of the adversary process." Harris v. New York, 401 *308 U.S. 222, 225, 91 S. Ct. 643, 28 L. Ed. 2d 1; see also Walder v. United States, 347 U.S. 62, 65, 74 S. Ct. 354, 98 L. Ed. 503. The shield provided by the Simmons rule cannot be perverted into a license to use perjury by way of a defense, free from all risk of confrontation with prior inconsistent utterances. The plaintiff's credibility was appropriately impeached by use of his earlier conflicting statements.
The defendant's other assignment of error relates to some remarks which the defendant asserts the assistant state's attorney made in his summation to the jury. The arguments were not transcribed. We can decide the merits of an appeal only on the record presented. Wooster v. Wm. C. A. Fischer Plumbing & Heating Co., 153 Conn. 700, 703, 220 A.2d 449. We cannot pass on the court's exercise of its broad discretion on this issue since there is absent a finding disclosing the import of the allegedly improper remarks and furnishing a basis for determining whether any harmful effect could or did result. We, therefore, have no available basis for determining what the improper remarks were, or what their effect was on the verdict reached or whether the court exercised its discretion unreasonably or wisely. State v. Murphy, 124 Conn. 554, 567, 1 A.2d 274; Munson v. Atwood, 108 Conn. 285, 291, 142 A. 737; Maltbie, Conn. App. Proc. § 69; see State v. Reed, 157 Conn. 464, 469, 254 A.2d 449; Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 343, 160 A.2d 899; State v. Kemp, 126 Conn. 60, 83, 9 A.2d 63; State v. Laudano, 74 Conn. 638, 646, 51 A. 860. The defendant has failed to present a record adequate to test the exercise of the court's discretion on this issue.
There is no error.
In this opinion the other judges concurred.
NOTES
[1] We observe also that the defendant never presented proper objections to the introduction of the evidence as required by Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262616/ | 900 F.Supp. 628 (1995)
Frank LANDA, Deceased, by the Representative of the Estate, Jay LANDA, Plaintiff,
v.
Donna E. SHALALA, Secretary of Health and Human Services, Defendant.
No. CV 91-3547.
United States District Court, E.D. New York.
September 29, 1995.
As Corrected November 21, 1995.
*629 *630 Robert, Lerner & Robert by Charles Robert, Rockville Centre, New York, for plaintiff.
Zachary W. Carter, United States Attorney, Eastern District of New York by Daniel F. De Vita, Assistant United States Attorney, Brooklyn, New York, for defendant.
MEMORANDUM DECISION and ORDER
SPATT, District Judge.
This action was commenced on September 13, 1991 by Jay Landa, as representative of the Estate of Frank Landa, pursuant to 42 U.S.C. § 405(g), to appeal from the denial of Medicare benefits by the Secretary of the Department of Health and Human Services, Donna Shalala (the "Secretary"). The Secretary moved the Court for an order pursuant to Fed.R.Civ.P. 12(c) granting judgment on the pleadings in her favor.
I. BACKGROUND
Frank Landa ("Landa" or the "patient") was admitted to Memorial Hospital, Hollywood, Florida on or about December 30, 1986 and he was discharged on or about January 5, 1987. He was eighty-six at the time. The parties do not inform the Court as to the reason for Landa's hospitalization, although the records from Memorial Hospital indicate that he suffered from abdominal pain. Mr. Landa returned to his home following his hospitalization. The medical record entry on his date of discharge indicates that there were "arrangements being made for 24 hour care at home." Record on Appeal at 464 (hereinafter "R.").
On January 29, 1987, Landa was admitted to the King Street Nursing Home, which is located at 787 King Street, Port Chester, New York. An "Admitting Evaluation" form completed by Dr. Leo Morganstern, Landa's physician, notes that the patient was legally blind, partially deaf, weak and unable to walk, confused, and afflicted with organic brain syndrome. R. at 433-34. Landa's eyesight is described in the record as `legal blindness,' `functional blindness' and `partial blindness.' He is also described as being `hard of hearing,' `wearing a hearing aide on left ear,' having `partial deafness' and `functional deafness.' It is apparent from these descriptions that Landa's eyesight and hearing were impaired but not totally impaired.
The nursing home admitting evaluation form also outlines a treatment plan that includes (a) cessation of the drug Haldol, using hypnotics only when needed, (b) trial use of the drug Halcion, (c) sensory stimulation twice a day with regard to Landa's partial deafness and functional blindness, (d) physical therapy for rehabilitation, (e) ambulation, (f) activities of daily living and (g) bladder rehabilitation. Dr. Morganstern also ordered that Landa receive vitamins, milk of magnesia, a Fleet Enema when necessary and Tylenol in the event of pain or elevated temperature. R. 219, 246. With regard to prescription medication, Dr. Morganstern ordered administration of the drug Halcion for January 29 through February 2, 1987 as well as Mellaril in early February and again on February 23, 1987. Apparently a psychiatric *631 evaluation was conducted some time during Landa's stay at King Street Nursing Home. The record reveals that Benadryl was prescribed for the period from February 12, 1987 to February 23, 1987 and Valium was prescribed for the period from February 17, 1987 to February 23, 1987.
With regard to behavior, the record reflect's notations by Landa's nurses that he was "alert" and "aware" with occasional confusion and lethargy observed prior to February 6, 1987. R. 227-28. It was first noted on February 6, 1987, that Landa was disturbing the other patients during the night and moving about his bed.
II. PROCEDURAL HISTORY
There are discrepancies in the record regarding the date of Landa's discharge from the hospital in Florida. The parties have apparently agreed that January 5, 1987 shall be considered the date of discharge. This date is of critical importance because Medicare coverage for post-hospital extended care is dependent on the type of care that was needed or received in the thirty day period following discharge from the hospital. The record is clear regarding the date of Landa's admission to the King Street Nursing Home, which is January 29, 1987. R. 83, 184, 218-19, 227.
On that date, January 29, 1987, King Street Nursing Home advised Landa in writing that
[t]he medical information available at the time of, or prior to, admission shows that the specific services to be furnished do not meet the requirements for coverage under Medicare. However, should you request the facility to file a claim with Medicare, you will receive a formal determination from the Medicare intermediary as to the noncoverage of the stay.
R. 184-85. Despite this written advisement of noncoverage, Landa was admitted to the nursing home on January 29, 1987. Apparently a review of the nursing home's position was requested, in response to which the fiscal intermediary, Travelers Insurance Company ("Travelers") confirmed that the nursing home services were not covered by Medicare. The response from Travelers, dated February 11, 1987, states in part:
Extended care benefits are paid under Medicare for individuals who need on a daily basis, skilled nursing care or skilled rehabilitation services which as a practical matter can only be provided in a skilled nursing facility on an inpatient basis. Patients must require such extended care services for the medically necessary inpatient hospital care or for a condition which arose while they were in a skilled nursing facility receiving care for the same condition for which they received inpatient hospital services. Skilled care is the type of care which must be furnished by or under the supervision of skilled personnel to assure the safety of the patient and to achieve the medically desired result.
When individuals do not require such skilled services on a daily basis or when as a practical matter the provision of such services does not require that the individuals be admitted as inpatients to a skilled nursing facility, their care in a skilled nursing facility is not covered under the Medicare law. Since we have determined that the care you received was not of the type described, no Medicare hospital insurance benefits can be allowed for your skilled nursing facility stay.
R. 188. Landa's attorney requested reconsideration of the denial of benefits by Travelers and upon review, Travelers advised in a letter dated September 10, 1987, that it adhered to its prior determination that the services provided to Landa at King Street Nursing Home were not covered by Medicare. R. 193.
A. Landa I
On September 14, 1987, Landa appealed from Travelers' denial of benefits. A hearing was held in the case, which the Court will refer to as Landa I, before an Administrative Law Judge (the "ALJ"), who also consulted an impartial medical advisor, Dr. Arthur Bauman, regarding the medical issues in the case. The ALJ affirmed the denial of benefits by Travelers in a decision dated December 9, 1988. The ALJ found that the care provided by the King Street Nursing Home was "custodial" in nature in that it did not *632 involve skilled nursing or rehabilitation services within the meaning of the Medicare law.
On appeal, the Secretary's Appeals Council vacated and remanded Landa I for the ALJ to determine whether (1) Landa's physician certified his need for skilled nursing facility care; (2) upon consideration of Landa's total condition, there was a need for or receipt of skilled care; and (3) if and when Landa received proper notice of noncoverage. The Appeals Council also directed the ALJ to obtain a legible copy of the psychiatric consultation report. R. 293-5.
B. Landa II
The remand hearing was held by the ALJ on December 4, 1989. On April 6, 1990, the ALJ issued a decision affirming the denial of Medicare benefits, concluding that Landa's total condition established a need for custodial rather than skilled care. R. 24-26.
On April 17, 1990, Landa appealed the Landa II decision. The Appeals Council reversed Landa II and remanded the case to the ALJ to consider evidence from a medical expert and the treating physician's opinion letter, written on June 29, 1989 stating the opinion of Dr. Morganstern concerning Landa's condition and care at King Street during the period commencing on January 29, 1987. R. 426. In its opinion, the Appeals Council stated that the ALJ did consider Landa's overall condition in Landa II. R. 15. However, the Appeals Council directed that on remand, the ALJ was to address (1) whether the overall management and evaluation of Landa's care constituted skilled care and (2) whether Landa had any special medical complications that would require that "otherwise nonskilled services would be considered skilled." R. 15. The decision of the Appeals Council notes that extended care is covered under Medicare only if skilled care was required within thirty days after a beneficiary's hospital discharge, so that "if daily skilled services were not needed/received by February 6, 1987, and the 42 CFR 409.30(b)(2) exception [due to special medical complications] is not met, the beneficiary's subsequent skilled nursing facility stay need not be addressed."
C. Landa III
On remand, the ALJ held a hearing and called the independent medical advisor Dr. Arthur Bauman to testify. R. 114-149. Dr. Bauman reviewed the opinion letter of Dr. Morganstern, the physician orders and nurse's notes as well as information relating to the medication Landa was given. He stated opinions with regard to Landa's overall condition and the level of care necessary to meet his needs. It was Dr. Bauman's conclusion, which is discussed further below, that Landa did not require or receive the type of caretaking services that can only be provided by skilled personnel. Other hospital personnel also testified at the December 17, 1990 hearing. The ALJ questioned the parties to determine whether all relevant medical information pertaining to Landa's case had been submitted for review. Upon request of the plaintiff's counsel, the ALJ directed the nursing home to submit medication records that apparently had been missing from the record.
The ALJ issued a lengthy decision dated May 7, 1991. In this decision the ALJ reviewed Landa's physical condition, his disabilities and behavior and the history of his treatment and the relevant law. R. 9-12. The ALJ concluded in this, the Landa III decision, that Landa did not qualify for Medicare coverage for the services provided by the King Street Nursing Home during the period beginning on January 29, 1987 through the 100th day of his stay at the facility.
On June 4, 1991, Landa appealed from the ALJ's Landa III decision, arguing that the ALJ applied an incorrect legal standard in weight assigned to the medical evidence in the case. The Secretary's Appeals Council denied review of Landa III on July 11, 1991, citing two recent Second Circuit cases in which that court "declined to specify the weight to be assigned any particular opinion evidence on Medicare cases," namely Stein v. Secretary of HHS, 924 F.2d 431 (2d Cir.1991) and Holland v. Sullivan, 927 F.2d 57 (2d Cir.1991). R. at 2. When the Appeal's Council denied review, Landa III became the final determination of the Secretary.
*633 Landa then commenced this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Secretary's final decision, Landa III. The Secretary moved the Court for judgment on the pleadings in its favor. Landa opposes the motion on the ground that (1) the Secretary failed to assess the "total needs" of Landa and therefore incorrectly applied the substantial evidence test and (2) that the Secretary's decision reflects a general policy of "nonacquiescence" with Second Circuit holdings.
III. DISCUSSION
A. Standard of Review
A final decision by the Secretary of Health and Human Services as to Medicare coverage is conclusive if it is supported by substantial evidence. Friedman v. Secretary of Health & Human Serv., 819 F.2d 42, 44 (2d Cir.1987). This means that the Secretary's findings will be upheld if the supporting evidence is "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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). In assessing whether substantial evidence supports a decision by the Secretary the Court is to review the record as whole, looking at the evidence supporting the Secretary's position as well as other evidence that detracts from it. Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.1990). "Where there is substantial evidence to support either position, the determination is one to be made by the factfinder." Id. (citing Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir.1988).
With regard to the specific issues raised in this case, the Second Circuit stated:
A determination of a Medicare claimant's need for skilled nursing care as opposed to custodial care should be guided by two principles. First the decision should be based upon a common sense non-technical consideration of the patient's condition as a whole. E.g., Gartmann, 633 F.Supp. at 679; Howard v. Heckler, 618 F.Supp. 1333 (E.D.N.Y.1985). Second, the Social Security Act is to be liberally construed in favor of beneficiaries. E.g., Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir.1983); See also Ridgely v. Secretary, 345 F.Supp. 983, 993 (D.Md.1972) ("the purpose of the custodial care disqualification ... was not to disentitle old, chronically ill and basically helpless, bewildered and confused people ... from the broad remedy which Congress intended to provide for our senior citizens"), aff'd, 475 F.2d 1222 (4th Cir. 1973). A claimant nevertheless has the burden of proving entitlement to Medicare benefits. Morton v. Heckler, 586 F.Supp. 110, 111 (W.D.N.Y.1984); Rendzio v. Secretary, 403 F.Supp. 917, 918 (E.D.Mich. 1975).
Friedman, 819 F.2d at 45. It is within this framework that the Court will review the Secretary's denial of Medicare benefits to Frank Landa.
B. The Statutes and Regulations
In enacting Medicare, 42 U.S.C. §§ 1395-1395ccc, Congress established a federally funded health insurance benefit system for the aged and disabled. At issue in this action are the provisions of Medicare that extend coverage, under certain circumstances, for post-hospital extended care services. Section 1395d(d)(2)(A) provides that expenses for post hospital extended care services may be covered for up to 100 days. Extended care services consist of services provided to an inpatient of a skilled nursing facility by such a facility and include, among other things, nursing care by or under the supervision of a registered professional nurse, physical or occupational therapy and bed and board as well as drugs and supplies furnished for the care and treatment of inpatients. 42 U.S.C. § 1395x(h).
The regulations promulgated pursuant to Medicare define skilled nursing or skilled rehabilitative care services as those that
(1) Are ordered by a physician;
(2) Require the skills of technical or professional personnel such as registered nurses, licensed practical (vocational) nurses, physical therapists, occupational therapists, *634 and speech pathologists or audiologists; and
(3) Are furnished directly by, or under the supervision of, such personnel.
42 C.F.R. § 409.31. In addition, such services must be needed by the patient on daily basis and "must be ones that, as a practical matter, can only be provided in a SNF [skilled nursing facility], on an inpatient basis." Id. A service that is ordinarily considered nonskilled may be considered skilled if it must be performed or supervised by skilled personnel due to a patient's special medical complications. 42 C.F.R. § 409.32. In some instances, the "overall management and evaluation" of a plan of care may constitute skilled nursing or rehabilitation services covered by Medicare because the patient's physical or mental condition is such that the involvement of technical or professional personnel is needed to meet the patient's needs, promote his or her recovery and ensure medical safety. 42 C.F.R. § 409.33(a)(1). Similarly, if the skills of a professional are needed to "identify and evaluate the need for modification or treatment for additional medical procedures until his or her condition is stabilized," the observation and assessment of the patient's changing condition may constitute skilled services that are covered by Medicare. 42 C.F.R. § 409.33(a)(2). "The[se] regulations recognize that a patient's total health care picture must be considered when determining whether the care at issue qualifies for Medicare coverage." Aurora v. Secretary of Health and Human Services, 715 F.Supp. 466 (E.D.N.Y.1989), aff'd, 896 F.2d 543 (2d Cir.1990).
The list of services that qualify as skilled nursing services includes the following (1) intravenous or intramuscular injections or intravenous feeding; (2) tube and gastrotomy feeding; (3) aspiration; (4) insertion and replacement of catheters; (5) application of dressings; (6) treatment of widespread skin disorders; (7) physician ordered heat treatments; (8) administration of medical gases; (9) rehabilitation such as bowel and bladder training programs. 42 C.F.R. § 409.33(b).
Medicare expressly excludes coverage for "custodial services." 42 U.S.C. § 1395y(a)(9). "Observing that `custodial care' is not defined by statute the courts have consistently interpreted the term in light of the statute's benevolent congressional purpose using a nontechnical approach, common sense meaning, and consideration of the needs and underlying condition of the claimant insured as a whole." Kuebler v. Secretary of Health and Human Services, 579 F.Supp. 1436 (E.D.N.Y.1984) (citing Klofta v. Mathews, 418 F.Supp. 1139, 1142-43 (E.D.Wis.1976); Samuels v. Weinberger, 379 F.Supp. 120, 123 (S.D.Ohio 1973); Breeden v. Weinberger, 377 F.Supp. 734, 737 (M.D.La. 1974); Schoultz v. Weinberger, 375 F.Supp. 929, 932 (E.D.Wis.1974); Ridgely v. Secretary of Health, Education and Welfare, 345 F.Supp. 983, 990 (D.Md.1972), aff'd, 475 F.2d 1222 (4th Cir.1973); Reading v. Richardson, 339 F.Supp. 295, 300 (E.D.Mo.1972); Sowell v. Richardson, 319 F.Supp. 689, 691 (D.S.C. 1970)). While not defining "custodial services," the regulations do set forth a nonexhaustive list of "personal care services," which includes the following: administration of oral medication; bathing and treatment of minor skin problems; assistance in dressing, eating and going to the toilet; and general supervision of previously taught exercises and assistance with walking. 42 C.F.R. § 409.33(d). These personal care services are not considered to be skilled services in the absence of special medical complications or the need for overall plan management and evaluation or observation and assessment of a changing condition. See 42 C.F.R. §§ 409.32 & 409.33.
C. The Relevant Time Period
As discussed above, the critical time in this case is the thirty day period following Landa's discharge from the hospital. See 42 C.F.R. 409.30(b) (providing that to qualify for extended care coverage, the patient must have needed and received skilled care within 30 calendar days after the date of discharge from the hospital). Although the dates of January 5, 1987 and January 8, 1987 both appear in the record as the date of Landa's discharge from the hospital in Florida, the parties agreed on the record at the December 17, 1990 hearing before Administrative Law Judge John W. Whittlesey, that the date *635 of discharge was January 5, 1987. R. 102. As the plaintiff's counsel explained, "the nine day period [between Landa's admission on January 29, 1987 and February 6, 1987] is an anchor to the full 100 days." R. 87. Therefore, the Court will review the facts relating to Mr. Landa's needs and overall condition between the dates of January 5, 1987 and February 6, 1987 to determine whether the care provided to him is properly classified as skilled nursing or rehabilitative care in that the services of a skilled professional were required either to administer or monitor the administration of the care.
D. The Legal Standard Applied by the Secretary
The Court will first address the plaintiff's argument that the Secretary applied an improper legal standard in assessing the evidence in this case. Landa contends that the Secretary's denial of benefits is based on a technical analysis of the services rendered to determine if those services were "skilled" within the meaning of Medicare. Landa contends that this standard is erroneous in that it fails to consider and adequately evaluate the patient's total condition. The Court disagrees. In the Court's view the Secretary's final decision was not based on an erroneous interpretation of the law.
In particular, the Court notes that the Appeals Council remanded Landa I with express instructions to consider Landa's overall condition, stating that
[p]ursuant to 42 CFR 409.30(b), skilled care must have been needed and received within 30 days after the beneficiary's hospital discharge (i.e., from January 8, 1987 through February 6, 1987). Thus, if daily skilled services were not needed/received by February 6, 1987, the beneficiary's subsequent skilled nursing facility stay need not be evaluated. In evaluating the need for and receipt of skilled care, however, the beneficiary's total condition must be considered. Although the decision evaluates observation/assessment (42 CFR 409.33(a)(2)) that the beneficiary received (page 2, paragraph 4), it does not specifically address whether the overall management and evaluation of the beneficiary's care plan constituted skilled care (42 CFR 409.33(a)(2)). The decision also does not specifically address the beneficiary's total condition.
R. 294-95 (emphasis supplied). When the Appeals Council reviewed the April 6, 1990 Landa II decision, it noted that the ALJ did "address the beneficiary's overall condition." R. 15. However, the Appeals Council found that remand of Landa II was necessary to address, among other things, (1) whether the overall management and evaluation of Landa's case constituted skilled care and (2) whether Landa had any special medical conditions that would require that otherwise unskilled services would be considered skilled. The ALJ was also directed to obtain additional medical evidence, namely the treating physician's certification and the utilization review committee decision, as well as the opinion of a medical expert. R. 16. When the Appeals Council denied review of Landa III, which addressed the issues previously identified by the Appeals Council, it became the Secretary's final determination.
Based on the foregoing, it is the Court's view that the legal standard applied by the Secretary in reviewing Landa's claim did not depart from the legal standard endorsed by the Second Circuit, namely a "common sense, nontechnical consideration of the patient as a whole." See e.g., Hurley v. Bowen, 857 F.2d 907, 912 (2d Cir.1988); Friedman v. Secretary of Health and Human Services, 819 F.2d 42, 45 (2d Cir.1987). The nature of the services provided are necessarily part of an overall evaluation of a patient's total condition and total treatment. Based on a review of the entire record in this case, the Court cannot say that the Secretary focused on the services provided to Landa rather than on Landa's aggregate needs in denying his medical claims.
Landa also contends that the Secretary erred in not giving determinative weight to the opinion of Dr. Morganstern, Landa's treating physician, who stated that Landa was in need of skilled nursing care. It was not a legal error by the Secretary to weigh Dr. Morganstern's opinion with all the other evidence. The Second Circuit has expressly refrained from imposing a rule regarding the *636 weight that should be attributed to the opinion of the treating physician in determining Medicare coverage. Concerning this issue, the court stated:
We are not prepared at this time to pass judgment upon the district court's holding that the case can be disposed of by applying the treating physician rule that is used in social security disability cases.... We believe it better practice to have the Secretary first advise us what role if any the attending physician rule played in the instant case and will play in future cases of this nature.
Stein v. Secretary of Health and Human Services, 924 F.2d 431, 433-34 (2d Cir.1991). The Second Circuit restated this position in the following manner:
Finally, we will also follow Stein in leaving for the Secretary's initial consideration the issue of whether the treating physician rule, applicable to disability cases, see Schisler v. Bowen, 851 F.2d 43 (2d Cir. 1988), applies to Medicare coverage determination. Though the considerations bearing on the weight to be accorded a treating physician's opinion are not necessarily identical in the disability and Medicare contexts, we would expect the Secretary to place significant reliance on the informed opinion of a treating physician and either to apply the treating physician rule, with its component of "some extra weight" to be accorded to that opinion, id. at 47, or to supply a reasoned basis, in conformity with statutory purposes, for declining to do so.
Holland v. Sullivan, 927 F.2d 57, 60 (2d Cir.1991). In the present case, the Secretary did not give determinative weight to the opinion of Dr. Morganstern, Landa's attending physician. However, the Secretary did set forth the reasons supporting that decision. In Landa III, which is the Secretary's final decision, the ALJ stated:
Moreover, even assuming arguendo without deciding that Schisler [assigning determinative or great weight to the treating physician's opinion] applies, such a rule would clearly not warrant a decision in favor of claimant in this matter. Dr. Morganstern, in a letter to claimant's attorney, dated June 29, 1989 (Exhibit B-9) states that he found the claimant to need extensive nursing care of a "skilled nursing variety." However, the doctor does not support his statement or explain his reasons for concluding the claimant needed extensive, or indeed any, skilled nursing care. As such, his statement is merely an unsubstantiated conclusion.
R. 10. The Court agrees that Dr. Morganstern's statements regarding Landa's needs were conclusory. Dr. Morganstern does not indicate that Landa's condition was unstable and in need of ongoing monitoring and modification, nor does he document medical complications requiring the attention of trained medical personnel. Further, Dr. Morganstern's opinion was not set forth contemporaneously with the doctor's care and observation of Landa. His letter was written on June 29, 1989, more than two years after the time he cared for Landa at the King Street Nursing Home. While the doctor twice stated the conclusion in that letter that his patient required skilled nursing care, he also noted that "I saw no purpose in admitting him to the hospital for several days prior to obtaining a nursing home inasmuch as we had multiple family members to give the immediate necessary attention." R. 426-27. Dr. Morganstern's letter relates that Landa suffered from multiple disabling conditions, such as Alzheimer's Disease, partial blindness and partial deafness, but does not set forth any medical ailments or injuries that would have required special medical attention. Disorientation and uncooperative behavior are also noted by Dr. Morganstern as necessitating physical and chemical restraints and a psychiatric consultation.
Similarly, the January 29, 1987 Nursing Home Admitting Evaluation, which is a contemporaneous evaluation of Landa by Dr. Morganstern, lists the disabling conditions of partial blindness, partial deafness and organic brain syndrome as well as confusion, weakness and an inability to walk. Dr. Morganstern's treatment plan at the time of Landa's admission to King Street Nursing Home consisted of (1) cessation of the drug Haldol; (2) hypnotics as needed including a trial of the drug Halcion; (3) sensory stimulation for *637 partial blindness, functional deafness, ambulation and the activities of daily living; (4) physical therapy for rehabilitation; and (5) bladder rehabilitation. The record indicates that after Landa's admission to King Street Nursing Home, he was not seen again by Dr. Morganstern for four days. R. 228. The initial evaluation by Dr. Morganstern does not describe conditions or order the type of monitoring of Landa's condition that is associated with "skilled care." The facts relating to Landa's condition do not necessarily lead to the conclusion stated by Dr. Morganstern in 1989, that skilled care was required.
E. The Care Provided In Response To Landa's Overall Needs
During the critical time period between January 29, 1987 and February 6, 1987, Landa's condition required that he receive, and he did receive the following: medication, periodic imposition of physical restraints and assistance with personal care and the daily activities of living. The Court will review the condition that gave rise to the need for this care and the nature of the services that were given in response to those needs.
i. medication
Apparently prior to admission, Landa had been given Haldol, which is described as a medicine for use in the management of manifestations of psychotic disorders. See Physicians' Desk Reference 1357 (48th ed. 1994) (hereinafter "PDR"). Dr. Morganstern's January 29, 1987 Admitting Evaluation form indicates that question existed about drug sensitivity for the use of Haldol by Landa. One of the express provisions of Dr. Morganstern's treatment plan was "off all Haldol." See R. 434. Indeed, the medication records do not indicate that any Haldol was administered to him during the period in question.
The treatment plan indicates that there shall be a "trial of Halcion." R. 434. The use of Halcion is indicated for short term treatment of insomnia. PDR 2422. It appears from the "Individual Patient's Narcotics Record" that Landa was given 25 mg of Halcion orally at bedtime until it was discontinued on February 2, 1987 on which date the Nurse's Notes indicate that Landa was observed to be "extremely lethargic." R. 228, 244.
It appears from the physician's orders that Mellaril, to be taken orally, was prescribed for Landa "for agitation" on February 2, 1987 when the administration of Halcion was discontinued. R. 246. The Physician's Desk Reference states that the use of Mellaril is indicated for treatment of "multiple symptoms such as agitation, anxiety, depressed mood, tension sleep disturbances, and fears in geriatric patients." PDR 2058. It is also evident from the Physician's Orders that the dosage of Mellaril was changed from 10 mg to 20 mg, although the date of that change is not legible in the record. R. 220.
Landa was also given therapeutic vitamins, acetaminophen for back pain and Fleet enemas for constipation during this period. These are nonprescription items. The drugs Valium and Benadryl became part of Landa's treatment plan after February 6, 1987.
Landa argues vigorously to this Court that the comments of Dr. Bauman, who gave his medical opinion at the request of the ALJ at Landa I and Landa II reveal that the administration and monitoring of drugs like Haldol, Valium and Mellaril involve skilled nursing care. Dr. Bauman stated that such drugs must be dispensed with great care and that misjudgment in administration of the drugs "can have devastating effects." R. 122. The Court does not find this statement to be at odds with Dr. Bauman's later response to this question by Landa's attorney: "And what type of person and what kind of skill would be necessary to medicate a blind, deaf person who's taking psychotropic drugs that could kill him?" Dr. Bauman replied, "A person who was instructed and knew how to read and give the medications that the doctors ordered." R. 127. Taken as a whole and in context, Dr. Bauman's opinion is that special care and judgment must be exercised when prescribing these drugs, but that no specialized skill is required to follow a doctor's orders regarding the amount of the medication to be given and the intervals at which to give it.
*638 The Court notes that all of the medication given to Landa was by oral dosage in contrast to intramuscular or intravenous injections. Medication by injection is one of the indicia of skilled care noted in the Medicare regulations. See 42 C.F.R. 409.33(b). The Court disagrees with the Secretary's conclusion that "the oral medications prescribed by the attending physician could have been self-administered." R. 10. However, the issue in this case is not whether Landa could care for himself, but rather what level of care was would meet his needs. There is no question that a person with Landa's major difficulties would not be able to manage his own care without assistance, nor would he be able to follow prescription drug directions independently. Rather, the question for the Court is whether Landa's overall condition gave rise to the need for skilled nursing care services within the meaning of the Medicare.
In addition, the observations set forth in the Nurse's Notes for the period in question could be made by a lay person rather than trained medical personnel. For example, (a) the entry for January 30, 1987 indicates that Landa had a "quiet night" and was "still adjusting to new environment;" (b) on January 31, 1987 another "quiet night" was observed and the patient was described as "alert and confused" and "still adjusting;" (c) on February 2nd, it was noted that Landa was "extremely lethargic;" (d) the next entry on February 6, 1987 indicates that Landa was awake until 2 a.m., disturbing the other patients, restless and trying to get out of bed and needed physical restraints to restrict his mobility. R. 228-29. With regard to medication specifically, as well as Landa's overall condition generally, it appears that the observations that were required and noted were no more involved or technical than routine monitoring for adverse reactions or beneficial results.
Landa's medication did change during the period in question, once from Halcion to Mellaril and once from 10 mg to 20 mg of Mellaril. However, neither Dr. Morganstern's instructions, nor the notes in the record by the nurses reveal that there was more than the usual need to be aware of adverse reactions or beneficial responses to the oral medications, which can be made by persons other than trained medical personnel. There is no evidence in the physician's orders or the nurse's notes that there was constant monitoring or modification of Landa's medication.
ii. physical activity
Although Dr. Morganstern's Admitting Evaluation treatment plan noted "physical therapy for rehabilitation," the record does not reveal that a course a physical therapy was conducted for Landa beyond periodic assisted walks with the floor staff. The Nurse's Notes do indicate that Landa was "ambulated." The Court does not observe any activity in the record that would be characterized as skilled rehabilitation services, such as therapeutic exercises, gait evaluation and training, range of motion exercises or tests and measurements of physical abilities. See 42 C.F.R. § 409.33(c). Apparently, Landa was not considered to be a candidate for rehabilitation. In any event, he was not treated in that manner.
iii. personal care and activities of daily living
In the Court's view, the fact that Landa required assistance with eating, walking and going to the toilet does not necessarily lead to the conclusion that Landa needed daily skilled services that could only as a practical matter be provided in a skilled nursing facility by skilled personnel, even when considered in light of the serious conditions discussed above. It is noted that Landa's care with regard to eating, toileting, hygiene, ambulation and even physical restraints is reported in "Nursing Aides' Patient Care Record." This type of assistance simply does not require the skills of technical or professional personnel in an inpatient facility. A nurse's aide or a home companion can, with reasonable certainty, perform such duties. There is substantial evidence that all of these services can be afforded by a semi-skilled attendant or companion in a home custodial situation. This type of care is expressly excluded from coverage in the absence of special circumstances by the Medicare regulations.
*639 F. A Review of the Precedents
Landa's case resembles those Medicare benefit cases where the court found that the patient's overall condition indicated a need for custodial rather than skilled care. For example, following hospitalization for pain and swelling in the knee and hemarthrosis, the patient in Aurora, supra, who had arthritis, an enlarged heart and arteriosclerotic heart disease, was given physical therapy twice a week, anti-inflammatory medication as well as medication for anxiety and pain. Aurora, supra, 715 F.Supp. 466. She was assisted with bathing, eating, and ambulation and she was incontinent. The Aurora court found that most of the services provided to the patient were custodial in nature, such as the administration of oral medication on a routine basis and assistance with daily living tasks. Id. Even a consideration of the patient's overall condition, which included serious heart ailments, did not change the court's conclusion. Id. at 469.
Similarly, it was the Second Circuit's view that the patient in Friedman, supra, required care that was custodial in nature, rather than skilled care. Friedman, supra, 819 F.2d at 42. Mr. Friedman, who entered a nursing home after a fall left him with a "probable skull fracture with subdural hematoma," also suffered from Parkinson's disease and phlebitis. A course of medication that was commenced at the hospital including Dyazide, Haldol and Tylenol was continued at the nursing home. Supporting the Secretary's denial of benefits were the facts that Friedman's medication was not given intravenously and that administration of the medication consisted of carrying out orders at intervals. Id. at 44. Despite Friedman's prior serious head injury, his disabling diseases and the psychotropic medications he required, the court upheld the Secretary's determination that his "overall condition and needs were such that he was not receiving and did not need skilled nursing services."
There is another similarity between Friedman and this case. In Friedman, the court stated that patient's position was most strongly supported by the fact that two "scoring" forms, in which physicians rate a patient's condition in various categories, concluded that Friedman needed skilled nursing facility care. Id. at 46. The Friedman court noted that "the details in these forms do not necessarily support this conclusion." Id. The same is true of Landa's case. Two Utilization Review Forms, in which an independent physician enters information about a patient, indicate that Landa is in a "physical C" "resource utilization group." R. 440, 444. "Based on New York State criteria," the level of care indicated is "skilled nursing facility." Id. However, in response to "enter whether the patient should be medically qualified for SNF Medicare Coverage" the form indicates that Landa is "not eligible for Medicare coverage and/or does not fulfill the Medicare eligibility requirements for SNF level of care." Id. No comments or explanations are set forth in space provided on this form.
The Court notes that in the December 17, 1990 hearing in Landa III, Ms. Shea, the Director of Nursing at King Street Nursing Home, testified that pursuant to the New York State classification system "physical C" category patients must go to a skilled nursing facility. R. 105-06. Only patients who are able to function independently and are in the "PA" or "PB" categories, those who are able to walk unassisted and take their meals in a dining room, can be patients at "health related care facilities." Id. Ms. Shea testified that all "physical C" patients must go to "skilled nursing facilities" whether or not they require skilled nursing or rehabilitation services. Id. Like the forms in Friedman, the details of Landa's URCs, do not necessarily support the conclusion that skilled nursing services were needed and provided. This is the case even though Landa's proper placement under New York State criteria was a skilled nursing facility.
When the choice to admit Landa to King Street Nursing Home was made, he was advised in writing that the services provided to him would not be covered by Medicare, despite the fact that he was entering a skilled nursing facility. R. 184. Admission to a skilled nursing facility does not necessarily mean that skilled services are needed by the patient or will be provided to the patient. In other words, both custodial care *640 and skilled care may be provided by personnel at skilled nursing facilities.
Landa's overall condition differs in its severity and complexity with cases in which the patient's overall condition dictated the need for skilled nursing services within the meaning of the Medicare law. For example, in Hurley, supra, there was testimony that the patient received fairly high dosages of Thorazine as well as intramuscular injection of Haldol and Visaril, so that close monitoring of the patient's condition by skilled observers was required for one to two days. Hurley, supra, 857 F.2d 907. In Hurley physical "restraints and injections were administered as coordinated responses to particular episodes of agitated behavior, not part of a prescribed routine." Id. at 912-13. This differs from Landa's case where oral medication was administered at routine intervals set by the prescribing physician.
In Gartmann, supra, the court determined that skilled nursing services were required to care for a patient who was partially paralyzed, aphasic, totally unable to communicate, incontinent, and suffered from congestive heart failure, atrial fibrillation, pulmonary infiltrate and a urinary tract infection. Gartmann, supra, 633 F.Supp. 671. Mrs. Gartmann also needed total and complete assistance with her personal care. Id. Viewing the patient's overall condition, the district court reversed the Secretary's determination that the services rendered were merely supportive and custodial, not requiring the presence of a skilled personnel. Id. at 678. Landa's difficulties, although considerable, are not as severe or complicated as Mrs. Gartmann's, who had an infection, heart and lung disorders, was incontinent and had no ability to communicate.
Nor does Landa resemble Mrs. Kuebler, whose unstable condition gave rise to a need for daily observation and modification of dosage of Haldol, Darvacet and Dalmane. See Kuebler, supra, 579 F.Supp. 1436. On admission to a nursing home following hospitalization for a fracture, Mrs. Kuebler was diagnosed with kyphoses, osteoporosis, back pain and possible fracture of a vertebra, progressive cerebral arteriosclerosis with brain atrophy, a urinary tract infection, Parkinson's disease and chronic depressive reaction by history. Id. at 1437. Based on this patient's extreme needs, Judge Wexler held that the care she required and received was not custodial in nature and therefore was covered by Medicare. While it is clear to the Court from the record that Frank Landa needed care and assistance, he required a different type of care than these patients who clearly needed the attention that only skilled professionals could provide.
IV. CONCLUSION
Most of the services that were provided to Landa at King Street Nursing Home are not categorized as skilled services by Medicare. Consideration of Landa's overall serious condition does not change this conclusion. The record reveals that Landa was treated with oral medication given to him at set intervals and that he required no intramuscular or intravenous medication. Although his sight and hearing were impaired, he was observed to be awake, alert and continent during the time period in question, with only periodic confusion and lethargy. Further, Landa did not require wound care or catheterization, nor did he have any special medical complications that required medical treatment or skilled nursing care.
The Court has considered the record as a whole and weighed the evidence that detracts from the Secretary's position, as well as the evidence that supports it. On the totality of the circumstances, the Court finds that substantial evidence supports the Secretary's decision and the Court affirms the Secretary's decision denying Medicare coverage. Judgment on the pleadings dismissing the complaint, is granted.
The Clerk of the Court is advised that this Order closes the case.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1328971/ | 548 S.E.2d 75 (2001)
249 Ga. App. 327
JONES
v.
The STATE.
No. A01A0747.
Court of Appeals of Georgia.
April 20, 2001.
Certiorari Denied September 7, 2001.
*76 Russell C. Gabriel, Athens, for appellant.
Kenneth W. Mauldin, Dist. Atty., Phillip C. Griffeth, Asst. Dist. Atty., for appellee.
ANDREWS, Presiding Judge.
In a bifurcated proceeding, Gerald Dexter Jones was convicted of providing a false name to a law enforcement officer and acquitted of obstructing an officer. During the second phase of the trial, Jones was convicted of possession of a firearm by a convicted felon and carrying a concealed weapon. Jones appeals the trial court's rulings on his Batson challenge and his motion for mistrial. After review, we affirm.
1. Jones contends that the State violated the equal protection clause by exercising a peremptory strike against a juror whom the prosecutor regarded as disabled.
A prospective juror cannot be struck for cause purely on the basis of a hearing impairment. Carter v. State, 228 Ga.App. 335, 491 S.E.2d 525 (1997); see OCGA § 15-12-163. But this juror was not struck for cause. Instead, the State used one of its peremptory strikes to remove her.
During voir dire, Claudia Griffeth, an older African-American woman, experienced intermittent difficulty in hearing the prosecutor. On occasion, she could hear the prosecutor's comments and at other times she said she could not. At the conclusion of individual voir dire and after listening to her responses to questions posed by the court, the prosecutor, and defense counsel, the court noted: "Well, I think sheshe hears things pretty well. We'll just have to talk up and go from there. If you're selected to serve on this jury, what I will ask you ma'am, at any point in time during the course of the trial you cannot hear a witness testifying, or you cannot hear or understand lawyers speaking, that you will let me know. All right." After she agreed to do so, voir dire continued.
After selection of the jury, Jones asserted a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) premised on the State's use of four of five strikes against African-Americans including Griffeth.[1] The trial court conducted a Batson hearing. As to this prospective juror, the prosecutor stated: "I struck Ms. Griffeth because she apparently had difficulty hearing me talk. Now, she may have been able to hear other things and I would hope that I could hold my voice up, but I can't promise anyone that I'll always be focused on whether Ms. Griffeth can hear me or not. And she did indicate right up here she had trouble hearing me." After the State's proffer, defense counsel argued that the explanation was pretextual and impermissibly based on race as well as disability. The trial court disagreed and found that Jones, as the opponent of the strikes, had not carried his burden.
When a party alleges a Batson violation and shows the existence of a prima facie case, the proponent of the strike must offer racially neutral, legitimate, and nondiscriminatory reasons for the use of its peremptory challenge. See Williams v. State, 271 Ga. 323, 325(2), 519 S.E.2d 232 (1999). A strike may be based on mistake, ignorance, or idiosyncracy provided that the reason for the strike is race-neutral. Howard v. State, *77 243 Ga.App. 836, 837, 534 S.E.2d 202 (2000). The opponent of the strike bears the burden of persuading the trial court that the proponent of the strike acted with discriminatory intent in exercising the strike. Turner v. State, 267 Ga. 149, 151(2), 476 S.E.2d 252 (1996). After reviewing the transcript and considering the trial court's findings with great deference, we cannot say the court's ruling was clearly erroneous. Howard, 243 Ga.App. at 838, 534 S.E.2d 202.
2. Jones contends that the trial court erred by allowing the State to rebut a prima facie case of racial discrimination in jury selection by stating it had exercised a peremptory strike against a black juror based on that juror's hearing disability since that juror was protected from discrimination against the disabled by the Americans with Disabilities Act (ADA), 42 USC § 12101 et seq. Jones argues that an irrational and illegitimate reason cannot be used in defending a Batson challenge.
Without question, it is impermissible to exercise a peremptory challenge on the basis of race or gender. Batson, supra; J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Tedder v. State, 265 Ga. 900, 901(2), 463 S.E.2d 697 (1995). But here, neither race nor gender was at issue. As to Jones' equal protection argument, the U.S. Supreme Court has decided that the disabled, as a group, do not constitute a "suspect class" or a "quasi-suspect classification." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
Even assuming, without deciding, that the ADA had any application to these particular facts, the appropriate level of review is rational basis analysis. See Cleburne, 473 U.S. at 445-447, 105 S.Ct. 3249. "[S]tate action subject to rational-basis scrutiny does not violate the Fourteenth Amendment when it `rationally furthers the purpose identified by the State.' [Cit.]" Board &c. of the Univ. of Alabama v. Garrett, 531 U.S. 356(II), 121 S.Ct. 955, 961, 148 L.Ed.2d 866 (2001). As noted in a federal circuit decision, "where a classification is subject only to `rational basis' review, the state may use its peremptory challenges to strike jurors for any reason rationally related to the selection of an impartial jury." United States v. Harris, 197 F.3d 870, 874 (7th Cir.1999). "Unlike race or gender, disability may legitimately affect a person's ability to serve as a juror." Id. at 875.
Here, in exercising the peremptory strike, the prosecutor articulated concerns that he would not be able to hold his voice up and that this juror had indicated she had trouble hearing him even when he was close to her. These reasons do not appear so implausible or so fantastic as to render the explanation pretextual. See Jones v. State, 240 Ga.App. 339, 341, 523 S.E.2d 402 (1999). Nor do they appear illegitimate or not rationally related to the selection of a fair and impartial jury. See Harris, 197 F.3d at 874, n. 3 ("[p]eremptory strikes of class members not entitled to heightened scrutiny remain `challenges without cause, without explanation and without judicial scrutiny.' [Cit.]"). Since the heightened level of review required by Batson and J.E.B. does not extend to the disabled, we find no error, even had this juror fit within the contours of the ADA. See Cleburne, 473 U.S. at 440-443, 105 S.Ct. 3249.
3. Jones contends that the trial court erred in denying his motion for mistrial made in response to the surprise admission into evidence of a custodial statement taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The statement at issue arose in the following context. At about midnight, while on patrol, Officer B. Russell heard a radio alert for a suspect named Gerald Jones wanted for questioning about a possible stolen vehicle. Russell observed an individual who seemed to fit the broadcast description. Russell noticed that this person appeared "very, very nervous" and "looked around like he was trying to figure out what to do or where to go." Suspicious, Officer Russell exited her patrol car and asked his name. Jones identified himself as "Tommy Smith." When asked if he had seen anyone come through that area, Jones nervously described two men, information that Russell found odd since she had not seen anyone else. After she thanked him, Jones started walking east-bound *78 then reversed direction. When Jones continued to look back over his shoulder, Russell pulled the patrol car up next to him and radioed Sergeant Randy Garrett, her supervisor, for instructions. As Jones was about seven feet from her, he suddenly reached into his right pocket and "started pulling out a silver revolver." Exiting her patrol car, Russell drew her weapon and yelled at him to drop the gun. Ignoring her commands, Jones ducked behind a bush. One or two seconds later, Jones burst out from behind the bush at a full run. When Russell ordered him at gunpoint to stop, Jones complied.
After Jones was convicted on the false name charge, the case then proceeded to the weapons charges. When asked whether she was present while another officer frisked Jones for weapons, Russell responded, "I was there but I was headed back for the bush because he had told me he didn't have the gun." Jones immediately objected and sought a mistrial on the dual grounds that Jones had not been provided with Miranda warnings and the remark constituted a custodial statement for which the defense had no notice as required by OCGA § 17-16-4. Outside the presence of the jury, the trial court agreed that the statement would have to be suppressed. Instead of granting a mistrial, the trial court twice issued curative instructions directing the jurors to "completely disregard that statement as though it was never said" and to "totally wipe it out of your mind." Twice, the trial court asked the jurors to indicate if they would be able to comply with the court's directive. When Russell resumed testifying, she described finding the gun Jones had pointed at her, a fully loaded pistol, on a manicured lawn next to the bush Jones had ducked behind. Russell identified a Rossi .38 special as the weapon she found that night. Defense counsel extensively cross-examined Russell about her previous testimony that Jones had not made any statement and about her police incident report that did not refer to any incriminating remark.
When a motion for mistrial is made after the presentation of an inadmissible matter to the jury, the corrective measure to be taken lies within the discretion of the trial court. Wofford v. State, 234 Ga. App. 316, 317(1), 506 S.E.2d 656 (1998). Absent an abuse of discretion, the trial court's ruling on a motion for mistrial will not be disturbed. Jackson v. State, 207 Ga.App. 190, 191(2), 427 S.E.2d 566 (1993).
Here, after the court gave curative instructions, none of the jurors indicated an inability to disregard the statement. See Binns v. State, 237 Ga.App. 719, 720(2), 516 S.E.2d 583 (1999). In any event, by not renewing the motion for mistrial and by choosing, instead, to cross-examine the witness about the inconsistency, Jones waived this issue on appeal. McAlister v. State, 204 Ga.App. 259, 260, 419 S.E.2d 64 (1992). In light of the overwhelming evidence of guilt, even had the issue been preserved, the trial court did not abuse its discretion in deciding a mistrial was not necessary to preserve Jones' right to a fair trial. Johnson v. State, 223 Ga.App. 668, 671(3), 478 S.E.2d 404 (1996).
Judgment affirmed.
ELDRIDGE and MILLER, JJ., concur.
NOTES
[1] The prosecutor noted the defense had used 11 of 12 strikes against white veniremen. See Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329572/ | 107 S.E.2d 732 (1959)
249 N.C. 733
STATE of North Carolina
v.
James COLE, James Garland Martin and others to the State unknown.
Nos. 722, 723.
Supreme Court of North Carolina.
March 25, 1959.
*738 Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. Claude L. Love, Bernard A. Harrell, Staff Atty., Raleigh, for the State.
Charles B. Nye, Daniel M. Williams, Jr., Durham, for defendant Cole.
E. L. Alston, Jr., Greensboro, for defendant Martin.
DENNY, Justice.
We shall first consider certain assignments of error based on exceptions which both defendants have preserved and argued in their respective briefs.
The defendants insist that the trial court committed error in refusing to sustain their respective motions to quash the bill of indictment. They contend that while the indictment attempts to charge the defendants and their companions or associates with unlawful assembly, the indictment does not set forth any unlawful purpose or any unlawful acts which the defendants assembled to commit; that it does not charge the defendants with the necessary elements of an attempt to mutually assist each other against lawful authority. The arguments in the briefs are substantially as if the defendants were charged with engaging in a riot, when, as a matter of fact, the bill of indictment charges the defendants, and others to the State unknown, with inciting a riot.
The crimes of inciting a riot and participating in a riot are separate and distinct offenses against the public peace. Both crimes have their origin in the common law.
"Inciting to riot is not a constituent element of riot; they are separate and distinct offenses. * * * One may incite a riot and not be present or participate in it, or one may be present at a riot, and by giving support to riotous acts be guilty of riot, yet not be guilty of inciting to riot." Commonwealth v. Safis, 122 Pa. Super. 333, 186 A. 177, 180; 77 C.J.S. Riot § 1(b), page 423.
In the case of Commonwealth v. Egan, 113 Pa.Super. 375, 173 A. 764, 766, it was held that inciting to riot is a common law offense, the gist of which is its tendency to provoke a breach of the peace, though the parties first assembled for an innocent purpose. The Court said: "Giving the word `incite' its plain and accepted meaningto arouse, stir up, urge, provoke, encourage, spur on, goad,there can be no doubt of the offense charged * * *. Inciting to riot, from the very sense of the language used, means such a course of conduct, by the use of words, signs or language, or any other means by which one can be urged on to action, as would naturally lead, or urge other men to engage in or enter upon conduct which, if completed, would make a riot. If any men or set of men should combine and arrange to so agitate the community to such a pitch, that the natural, and to be expected results of such agitation, would be a riot, that, would be inciting to riot, an offense at common law * * *." Commonwealth v. Sciullo, 169 Pa.Super. 318, 82 A.2d 695.
In the instant case, the bill of indictment does charge that the defendants, *739 while armed with certain weapons, did assemble near the Town of Maxton for the common purpose of conducting a meeting and rally of the so-called Knights of the Ku Klux Klan, with the common intent to preach racial dissension and to coerce and intimidate the populace. We hold that the indictment adequately charges an unlawful purpose and that the case of State v. Baldwin, 18 N.C. 195, relied on by the defendants, is distinguishable and not controlling on the charge contained in the bill of indictment in this case.
The defendants were not convicted of unlawful assembly or riot, but of inciting to riot. Naturally, they could not have been convicted of inciting to riot unless the incitement resulted in a riot. "It must be shown in riot that the assembling was accompanied with some such circumstances, either of actual force or violence, or at least having an apparent tendency thereto, as were calculated to inspire people with terror, such as being armed, making threatening speeches, turbulent gestures, or the like, or being in disguise * *. In any case, it is well settled that it is not necessary that personal violence be committed * * *." Wharton's Criminal Law and Procedure (1957 Ed.), Vol. 2, section 864, page 731; State v. Lustig, 13 N. J.Super. 149, 80 A.2d 309. This assignment of error is overruled.
The defendants assign as error the failure of the trial court to sustain their motions for judgment as of nonsuit at the close of the State's evidence, which motions were renewed after the defendants announced they would offer no evidence.
The overwhelming weight of authority seems to be to the effect, in the absence of a statute to the contrary, that persons may assemble together for a lawful purpose, but if at any time during the meeting they act with a common intent, formed before or during the meeting, to attain a purpose which will interfere with the rights of others by committing disorderly acts in such manner as to cause sane, firm and courageous persons in the neighborhood to apprehend a breach of the peace, such meeting constitutes an unlawful assembly. See Annotation: Unlawful Assembly, 58 A.L.R. 751, and 93 A.L.R. 737, where the authorities in support of this view, from many jurisdictions, are assembled.
In the case of People v. Burman, 154 Mich. 150, 117 N.W. 589, 592, 25 L.R.A., N.S., 251, the defendants were convicted of a breach of the peace in violation of a city ordinance. The defendants had marched through the streets of the City of Hancock, Michigan, displaying red flags. They had been warned that the display of such flags would cause a breach of the peace and riots. The Court, in upholding the convictions, said: "The question here is not whether the defendants have in general a right to parade with a red flag. It is this: Had they such right, when they knew that the natural and inevitable consequence was to create riot and disorder? Defendants knew this red flag was hated by those to whom it was displayed, because it was believed to represent sentiments detestable to every lover of our form of government. They knew that it would excite fears and apprehension, and that by displaying it they would provoke violence and disorder. Their right to display a red flag was subordinate to the right of the public. They had no right to display it when the natural and inevitable consequence was to destroy the public peace and tranquillity. It is idle to say that the public peace and tranquillity was disturbed by the noise and violence, not of the defendants, but of those whose sentiments they offended. When defendants deliberately and knowingly offended that sentiment, they were responsible for the consequences which followed, and which they knew would follow. It is also idle to say that these others were wrongdoers in manifesting in the manner they did their resentment at defendants' conduct. This merely proves that they and defendants *740 were joint wrongdoers; that they, as well as defendants, violated the ordinance in question. The object of this proceeding is not to redress the grievance of these other wrongdoers, but it is to redress the grievance of the public whose rights they and defendants jointly invaded. The guilt of their associate wrongdoers does not lessen defendants' responsibility. It is sufficient to say that defendants by their conduct did `aid, countenance, and assist in making a riot, noise, and disturbance, and therefore violated ordinance No. 10 of the city of Hancock.'"
In the case before us, the evidence supports the view that the so-called Knights of the Ku Klux Klan, under the leadership, control and direction of the defendant Cole, did by inflammatory speeches and crossburnings, and reports thereof published in the newspapers, incense the Indians of Robeson County to such an extent that the proposed rally at Maxton would tend to provoke a breach of the peace and incite to riot. In fact, Cole was so advised before and after the rally was underway. Moreover, Cole and Martin knew that the purpose of the rally was to incense, intimidate, and scare the indians. There is evidence to the effect that when Sheriff McLeod arrived at the scene of the planned rally on Saturday night, 18 January 1958, he advised Cole not to try to hold the rally; that Cole said "he couldn't see any reason why he should not hold it, but would tone it down some." This we think is tantamount to an admission by Cole that he originally intended to make statements that would be resented by the Indians and likely to cause them to riot. Otherwise, why "tone it down"? As to Martin, according to the evidence admitted against him, Cole had told him about a week or two before the Maxton rally that there were about 30,000 half-breeds in Robeson County and he was going to have a meeting and try to "scare them up." Therefore, it is evident that Martin knew the purpose of this particular meeting.
In light of the evidence disclosed on the record on this appeal, there can be no justification for the defendants and their associates to go to the rally at Maxton on 18 January 1958, armed with rifles, shotguns, pistols and other weapons, some concealed and others unconcealed, if their intent and purposes were legitimate and peaceful. Such show of armed defiance was incompatible with peaceful and lawful purposes. Moreover, such conduct within itself would be calculated to cause a breach of the peace in any community, particularly in a county where the defendant Cole had been preaching racial dissension and hatred and conducting cross-burnings for the purpose of frightening certain Indian families in the community. If any of the Indian residents of Robeson County are violating the law in any respect, it is the duty and responsibility of the duly constituted law enforcement officers of that county to prefer proper charges against them and to see that they are dealt with according to law (and this we are confident they will do), but there is nothing in our Constitution or laws that authorizes the Ku Klux Klan or its officers to substitute themselves for the law enforcement officers of a community or the courts of the State.
In our opinion, when all the evidence adduced in the trial below is considered in the light most favorable to the State, as it must be on a motion for judgment as of nonsuit, it is sufficient to carry the case to the jury as to both defendants, and we so hold. State v. Block, 245 N.C. 661, 97 S.E.2d 243; State v. Burgess, 245 N.C. 304, 96 S.E.2d 54; State v. Kluckhohn, 243 N.C. 306, 90 S.E.2d 768.
The defendant Martin assigns as error the admission, over objection, and exceptions duly entered, of certain evidence against him with respect to the conversations between the defendant Cole at his residence in Marion, South Carolina, Sheriff McLeod of Robeson County, and *741 certain members of the State Highway Patrol, although Martin was not present at the time. This defendant likewise assigns as error the evidence admitted against him of certain statements made by Cole, not in the presence of the defendant Martin, as to why he had the cross-burnings at St. Pauls and East Lumberton the latter part of the week before the Maxton rally. We think the evidence as to the contents of the conversations in Marion, South Carolina and as to why the crosses were being burned in Robeson County was inadmissible as to Martin and should have been excluded as to him, and the failure to do so entitles him to a new trial. State v. Franklin, 248 N.C. 695, 104 S.E.2d 837; State v. Kluttz, 206 N.C. 726, 175 S.E. 81; State v. Simmons, 198 N.C. 599, 152 S.E. 774; State v. Green, 193 N.C. 302, 136 S.E. 729.
The defendant Cole's assignments of error Nos. 10 through 18 are based on his exceptions to the court's charge. Assignment of error No. 10 is directed to the court's definition as to what constitutes a riot. The court pointed out that there is no statutory definition of riot in this State, but that it has been defined by our Supreme Court to be, "a tumultuous disturbance of the peace by three persons or more assembled together of their own authority, with intent mutually to assist one another against all who shall oppose them, and afterwards putting the design into execution, in terrific and violent manner, whether the object in question be lawful or otherwise. Indictment for riot always must charge the defendants with unlawful assembly, mutual intent to assist one another, and execution of the intent by overt acts, before they can be convicted." This definition was taken almost verbatim from the opinion of this Court in the case of State v. Stalcup, 23 N.C. 30, and approved in State v. Hoffman, 199 N.C. 328, 154 S.E. 314, 316.
It was not only proper but incumbent upon the court to define the crime of riot. It was not the crime for which this defendant was tried, but the crime which he was charged with inciting. Unless the jury could find from the evidence that a riot occurred, it would not have been justified in finding this defendant guilty of inciting a riot. This assignment of error is without merit.
The defendant Cole's exception No. 45, argued under assignment of error No. 12, is to the instruction given by the court with respect to the right to bear arms. The pertinent part of the instruction was as follows: "* * * the Constitution and laws of this State guarantee to a person the right to bear arms and right to assemble peaceably for the purpose of registering their grievances. I instruct you that does not give any individual, or any body of individuals, the right to bear arms for unlawful purposes in any respect anywhere."
This Court said in the case of State v. Huntly, 25 N.C. 418: "The bill of rights in this State secures to every man, indeed, the right to `bear arms for the defense of the State.' While it secures to him a right of which he cannot be deprived, it holds forth the duty in execution of which that right is to be exercised. If he employs those arms, which he ought to wield for the safety and protection of his country, to the annoyance and terror and danger of its citizens, he deserves but the severer condemnation for the abuse of the high privilege with which he has been invested. * * * A gun is an `unusual weapon' wherewith to be armed and clad. No man amongst us carries it about with him, as one of his everyday accoutrementsas a part of his dressand never, we trust, will the day come when any deadly weapon will be worn or wielded in our peace-loving and law-abiding State as an appendage of manly equipment * * *. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people." This exception is without merit.
Exceptions Nos. 46 and 47, argued under this same assignment of error, are to the following portions of the court's charge: "If you find from the evidence *742 beyond a reasonable doubt that on this occasion they went to this place for an unlawful purpose, armed with deadly weapons, pistols, rifles, guns, blackjacks, for the purpose of conducting a meeting, despite any opposition that might develop, and putting down by force any resistance to such meeting and to mutually assist each other in such conduct, that would constitute unlawful assembly; and if they took steps to carry it into execution in a violent manner, would constitute a riot. * * * (Exception No. 46)
"It makes no difference whether the original purpose of assembly be lawful or unlawful. If it be for a lawful purpose and after having so assembled they change their plan or mind about it and adopt an unlawful purpose of assembly, that which has been a lawful assembly is converted into unlawful assembly, and if that be done by mutual consent in carrying out the design or putting the design into execution, with mutual intent to assist each other against any opposition, and violence and tumult result, that would constitute unlawful assembly, and if you so find beyond a reasonable doubt you will satisfy the law with respect to that element of the offense alleged." (Exception No. 47)
We do not construe these instructions as prejudicial to the defendant. They do not eliminate the necessity for an unlawful assembly, which must be charged and proven where one is tried on a bill of indictment for participating in a riot. State v. Hoffman, supra.
In State v. Stalcup, supra, an unlawful assembly was charged, but there was no charge that the parties assembled for the purpose of doing a lawful act in an unlawful manner or of doing an unlawful act. However, the authorities hold an unlawful assembly may be created deliberately or by chance. In any event, the unlawful assembly must precede the conduct which constitutes participation in a riot. In considering what constitutes a riot or civil commotion, this Court, in Spruill v. North Carolina Mut. Life Insurance Co., 46 N.C. 126, said: "A riot is where three or more persons actually do an unlawful act, either with or without a common cause. To this, Chitty, in his note, says, `The intention with which the parties assemble, or, at least, act, must be unlawful,' and this qualification of Mr. Chitty is recognized by this Court in the case of State v. Stalcup, 23 N.C. 30."
It is said in 77 C.J.S. Riot § 1, page 422: "Inciting to riot. The gist of this offense is its tending to provoke a breach of the peace, even though the parties may have assembled in the first instance for an innocent purpose, and it is an offense at common law. It means such a course of conduct, by the use of words, signs, or language, or any other means by which one can be urged to action, as would naturally lead or urge other men to engage in, or enter on, conduct which, if completed, would make a riot."
In 46 Am.Jur., Riots and Unlawful Assembly, section 10, page 103, we find the following: "An unlawful assembly is a constituent and necessary part of the offense of riot at common law, and must precede the unlawful act which completes the offense. Very evidently therefore, presence of the essential elements of an unlawful assembly is essential to a conviction for riot, and should be considered in connection with prosecutions for riot. Neither the time nor the place of the assemblage is material in determining whether or not the assemblage constitutes a mob * * * although the place of the riot may be material in determining liability as between the county and a municipality. Likewise, the fact that the group of persons do not voluntarily come together does not prevent their action from being that of a mob; nor is the primary purpose for which they assemble material, if they in fact form and execute an unlawful purpose after they are brought together." These exceptions are overruled.
*743 We have carefully reviewed the remaining exceptions and assignments of error and, in our opinion, no error has been made to appear that would justify disturbing the verdict below as to the defendant Cole.
As to the defendant ColeNo Error. As to the defendant MartinNew Trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262745/ | 84 Cal.Rptr.2d 609 (1999)
71 Cal.App.4th 1481
In re JESSE C. et al., Persons Coming Under the Juvenile Court Law.
San Diego County Health and Human Services Agency, Plaintiff and Respondent,
v.
Jesse C. et al., Defendants and Appellants.
No. D031955.
Court of Appeal, Fourth District, Division One.
May 11, 1999.
Rehearing Denied June 7, 1999.
Review Denied August 11, 1999.[*]
*610 Alice C. Shotton, under appointment by the Court of Appeal, for Defendants and Appellants.
John J. Sansone, County Counsel for San Diego County, Susan Strom, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, for Plaintiff and Respondent.
BENKE, Acting P.J.
Welfare and Institutions Code[1] section 317, subdivision (c), requires in a dependency proceeding that counsel be appointed for the minor when it appears to the court such representation would benefit the child. Subdivision (d) of section 317 requires such representation continue until there is a substitution of counsel or counsel is relieved "for cause." In the present case counsel was appointed for the minors when the dependency petition was filed. Representation continued until the second post-permanency planning review hearing when, based on the fact adoption was imminent and on the representation by minors' attorney there were no current legal issues to be resolved, the court relieved counsel.
The issue is whether relieving counsel under such circumstances was proper. We conclude that it was.
*611 BACKGROUND
On March 24, 1995, the San Diego County Health and Human Resources Services Agency (Agency) filed section 300, subdivisions (b) and (j) petitions as to siblings Jesse C, age 5, Yvette C, age 3, and Timothy U., age 1. The petitions alleged the failure of their mother to provide a suitable home.
At the detention hearing the Child Advocacy Division of the Public Defender's Office was appointed to represent the minors. The record does not contain a reporter's transcript for that hearing and the minute order contains no statement concerning why the trial court appointed counsel for the children. All three children were represented by the same attorney.
The trial court found a prima facie case supporting the petition, ordered the children removed from the custody of their mother and placed in an appropriate home. Agency was allowed to place the children in the home of a relative with the concurrence of the minors' counsel.
The social study prepared for the jurisdictional hearing related the unsanitary conditions in the home, the mother's relative youth and immaturity, and the fact her husband, the father of Timothy U., was in the Navy, had often been at sea, but would soon be discharged because of the use of drugs. The report noted the children were in generally good health and were developing normally. They were, however, unruly and difficult to control. The children had been placed together in a foster home that matched them ethnically and culturally. Both parents agreed intervention by Agency was necessary.
The jurisdictional and dispositional hearings were held on July 6, 1995. The children were declared dependents, custody was removed from the parents and reunification services were ordered.
The dependency continued in due course. By the time of the review hearing in January 1996, the children were being represented by a new public defender. The two older children were in the same foster home. Timothy U. was in a separate home because of his need for specialized care. In general the children were doing well. Jesse and Yvette had been diagnosed as hyperactive and were on medication to help control their behavior. Both children's development was normal. Timothy was diagnosed with mild mental retardation. His special needs were being addressed. The parents were doing generally well in moving toward reunification.
At the six-month review hearing the children were continued as dependents, and reunification efforts were ordered to go forward.
The 12-month review hearing was held on July 10, 1996. The review report prepared for that hearing stated the children were doing well in their placements. The parents had continued with their reunification plan and wished the children returned to their home. The parents, however, seldom called the children and over the last several weeks had not kept visitation appointments. The report concluded the parents' efforts at reunification were mixed and recommended the reunification services be continued. The trial court made orders consistent with that recommendation.
The 18-month review hearing was held in September 1996. It had come to the attention of Agency that a domestic dispute occurred between the parents involving physical force. The parents had continued to miss visits with the children and unsupervised visits had not always been positive. Father had also tested positive on one occasion for marijuana. The parents indicated a desire to continue services and be reunited with their children. The parents were attempting to deal with problems that had arisen in the last several months. Agency recommended a 30-day continuance so reunification services could be put in place to deal with those problems. The trial court agreed and set the 18-month hearing for October 1996.
In an additional information report submitted in October, Agency indicated difficulty in locating the parents, who had been evicted from their apartment. Because of their financial difficulties they had been unable to continue with services and visitations. Agency requested a continuance of the 18-month review hearing. The court granted the request.
*612 At the time of the eighteen-month review hearing, Jesse was seven years old, Yvette five and Timothy three. Agency noted the parents were now living in a motel and had not followed through with reunification services or visitation. Agency recommended termination of reunification services and the setting of a section 366.26 termination of parental rights hearing.
The 18-month hearing was held on February 18, 1997. Reunification services were terminated and the matter was set for a termination hearing.
A report prepared for that hearing noted the parents now resided in Nevada. Jesse and Yvette remained in their foster home. Jesse continued to have behavioral difficulties and the foster mother was concerned that Yvette might be retarded. The foster mother stated she was willing to keep Yvette for long-term care but did not wish to keep Jesse on a long-term basis. Timothy was doing well in his foster home, and his foster family was willing to adopt him. Agency concluded that despite each having special needs, all three children were adoptable.
In June 1997, Agency reported Jesse and Yvette were removed from their foster home after allegations of abuse and were placed in a new foster home.
The termination hearing was held on July 24, 1997. At that time, parental rights were terminated.
A report dated January 26, 1998, prepared for the first post-permanency planning review hearing noted that while Jesse and Yvette had been cleared for adoption, an appropriate adoptive family had not yet been located. Timothy's foster family had applied to adopt him.
In a report dated July 20, 1998, Agency reported that Jesse and Yvette had been placed with an adoptive family on April 10, 1998. Timothy continued in his adoptive placement.
At the second post-permanency planning review hearing, held on July 21, 1998, the court noted the children were in stable placements. Minors' counsel reported the children were doing well in their placements and there were no current legal issues in need of resolution. The court relieved counsel for the minors, stating that counsel would be reappointed if necessary. The minors' counsel objected to being relieved, stating, that while no current legal issues existed, adoption was not completed and the case was not at an end. The court stated if a need arose for the minors to be represented, it would reappoint the Child Advocacy Division of the Public Defender's Office to represent them. Counsel announced she would petition for a writ to overturn the court's order and requested a stay pending resolution of the issue. The court granted the stay.
On August 14, 1998, this court summarily denied the petition for writ of mandate. A notice of appeal was filed on September 14,1998.
DISCUSSION
The minors' attorney argues the trial court erred in relieving her from representing the children before the conclusion of the case. She notes that pursuant to section 317, subdivision (d), counsel for a minor, once appointed, must continue to represent the minor throughout the case unless relieved upon the appointment of other counsel or for cause. She notes the trial court purported to relieve her for cause. She argues "cause" in this context relates to the qualification of counsel to continue in representation and not to the issue of whether appointment of counsel continues to be of benefit to the minor. Since there was no issue concerning her ability to continue, any concern her representation was no longer of benefit to the children was a matter about which the court could not concern itself. It was error, she claims, for the court to relieve her.
While the issue in this case is when may a court relieve counsel for a minor in a dependency proceeding, a resolution of that question requires we first consider the circumstances under which counsel is appointed.
A. Appointment of Counsel
The court may appoint counsel for parents and guardians when they desire representation but it appears they cannot afford it. Such appointment is required, unless knowingly *613 and intelligently waived, when the minor has been placed in out-of-home care or if the petitioning agency is recommending such placement. (§ 317, subds.(a), (b).)
The appointment of legal representation for the child is required when "it appears to the court that the minor would benefit from the appointment of counsel." (§ 317, subd. (c).)
Thus, the appointment of counsel for parents is dependent merely on their desire for representation. The appointment of counsel for the child is based, rather, on the perception of the trial court that the minor would benefit from the appointment of counsel. As we will explain, this difference in the basis for appointment affects the basis for which the parent or minor's counsel may be legitimately relieved.
Minors' counsel argues the issue is one of law. Once the trial court determines a minor would benefit from the appointment of counsel, an appointment is required. The determination of whether such an appointment would be beneficial, however, is clearly a matter within the sound discretion of the trial court. Whether a child would benefit from the appointment of counsel is a complex question best answered by a decision maker familiar with both the particular circumstances of a case and the legal and social issues associated with dependency law. It would be destructively presumptuous for us to substitute our judgment for that of the trial judge or referee. (See In re Mario C. (1990) 226 Cal.App.3d 599, 606, 276 Cal.Rptr. 548; In re Jenelle C. (1987) 197 Cal.App.3d 813, 818-819, 243 Cal.Rptr. 89 [both dealing with a similar provision (former Civ. Code, § 237.5, now Family Code, § 7861) for the appointment of counsel in actions to terminate parental custody and control under former Civil Code section 232 et seq. (now Family Code, § 7800 et seq).]; see also In re Richard E. (1978) 21 Cal.3d 349, 353-354,146 Cal.Rptr. 604, 579 P.2d 495; In re Dunlap (1976) 62 Cal.App.3d 428, 438, 133 Cal.Rptr. 310 [also dealing with former § 237.5]; Wendland v. Superior Court (1996) 49 Cal. App.4th 44, 50, 56 Cal.Rptr.2d 595 [dealing with a similar appointment of counsel provision in Prob.Code, § 1471, subd. (b) ].)[2]
Understandably, section 317, subdivision (c), provides no specific guidelines for when a minor will benefit from the appointment of counsel. The possible situations that face a trial court in deciding that issue are so varied, only the most general guidance can be provided. The competing core considerations are, on the one hand, that the very purpose of a dependency proceeding is to do what is in the best interests of the minor. (§ 202, subd.(b).) To that end, the court, Agency, its attorney, the particular social workers and possibly, if appointed, a CASA (court appointed special advocate) volunteer (§ 356.5; Cal. Rules of Court, rule 1424) are all charged with acting in the child's best interest. On the other hand, because fundamental legal interests are involved, particular problems may exist such that it would be beneficial to all for the minor to be represented by counsel.
Speaking in the context of an action to free a child from the custody and control of a parent under former section 232, our Supreme Court stated: "Thus, the issue at a hearing is whether a parent is fit to raise the child. To that end are directed all the arguments of opposing parties, parents claiming they are fit and petitioners claiming otherwise, and with each side generally contending it is protecting the best interest of the child. It is thus likely that in a particular case the court will be fully advised of matters affecting *614 the minor's best interests, and little assistance may be expected from independent counsel for the minor in furtherance of his client's or the court's interests. However, when the court finds a child has separate interests not protected in the contest between parents and a petitioner, the court must exercise its discretion by appointing separate counsel." (In re Richard E., supra, 21 Cal.3d at p. 354, 146 Cal.Rptr. 604, 579 P.2d 495.)
The court went on to state that while a trial court possesses broad discretion in the matter, "appointment of counsel is nevertheless required in the absence of an affirmative showing the minor's interests would otherwise be protected." (In re Richard E., supra, 21 Cal.3d at p. 354, 146 Cal.Rptr. 604, 579 P.2d 495.)
The court concluded: "Thus, in absence of a showing on the issue of the need for the independent counsel for a minor, failure to appoint constitutes error. However, this is not to say a court must always exercise its discretion in favor of appointing counsel. The court possesses broad discretion in determining need for counsel, and exercise of that discretion will not be disturbed on appeal except for manifest abuse." (In re Richard E., supra, 21 Cal.3d at pp. 354-355, 146 Cal.Rptr. 604, 579 P.2d 495.)[3]
A trial court may appoint counsel for a minor in a dependency proceeding if it concludes the minor would benefit from such appointment. That determination is a complex one that rests in the sound discretion of the trial court. The determination is made based on a balancing of the general goals of dependency law, the extensive non-legal resources available to protect the interest of the child and the particular circumstances of the case.
B. Relieving Appointed Counsel
Appellants argue once counsel is appointed for the minor pursuant to section 317, subdivision (c), such representation must continue until, pursuant to section 317, subdivision (d), there is a substitution of counsel or until counsel is removed "for cause." Appellants argue in this context "for cause" refers solely to counsel's ability to continue and has nothing to do with whether such representation remains beneficial. We disagree.
Section 317, subdivision (d), uses the same words to describe when counsel for both parents and minors may be relieved. The difficulty is that while the appointment of attorneys for parents is dependent solely on their desire to be represented, the appointment of counsel for a minor is dependent on the trial court concluding an appointment of counsel would be beneficial. Given that fact, it is logical to conclude the conditions for the relieving each should also be different.
In In re Tanya H. (1993) 17 Cal.App.4th 825, 21 Cal.Rptr.2d 503, the court discussed the application of section 317, subdivision (d), to relieving parents' counsel. In Tanya H. the court dealt with a local court policy, driven by financial concerns, that required parents' counsel be relieved following the first permanent plan review hearing unless counsel showed good cause not to be relieved. (Id. at pp. 827-828, 21 Cal.Rptr.2d 503.)
The court concluded such a policy violated section 317 since the section unambiguously requires counsel, once appointed for parents, remain on the case for all subsequent proceedings. In dicta the court noted the section did not define "good cause." It stated, however, that since appointment of counsel was required if a parent desired it and was to continue through all proceedings, "good *615 cause" could only refer to "some good reason personal to the individual sought to be removed [citation], one which affects or concerns the ability or fitness of the appointee to perform the duty imposed on him [citations]...." (Id. at p. 831, fn. 5, 21 Cal. Rptr.2d 503.)
In two cases, In re Malcolm D. (1996) 42 Cal.App.4th 904, 915-916, 50 Cal.Rptr.2d 148, and In re Ronald R. (1995) 37 Cal.App.4th 1186, 1192-1195, 44 Cal.Rptr.2d 22, the Fifth District followed Tanya H. In each case, the court concluded the mere inability of parents' counsel to reach or maintain contact with their clients was not good cause to terminate an appointment since it was not a circumstance relating to counsel's availability or fitness.
In Janet 0. v. Superior Court (1996) 42 Cal.App.4th 1058, 50 Cal.Rptr.2d 57, the court took a different view. It applied Tanya H. to a situation in which parents' counsel was relieved based on the trial court's conclusion they had lost interest in the proceedings and no longer desired counsel. Noting that a condition under section 317, subdivisions (a) and (b), for the appointment of counsel for parents was their desire for representation, the court stated: "To construe the section's language as prohibiting the court from relieving counsel where, as here, the evidence indicates the parents no longer desire representation, would scuttle the purpose of the statute which is to provide counsel only to those parents who desire representation and are financially unable to afford counsel." (Id. at p. 1064, 50 Cal.Rptr.2d 57.)
The court in Janet O. concluded the reasoning of Tanya H. should be confined to its facts. In Tanya H. the parents maintained an interest in the proceedings and desired representation continue. In Janet O. the parents no longer were interested in the proceedings or their children. The court stated: "Under these circumstances, the juvenile court not only is permitted to, but should, revisit the issue of whether a parent continues to desire representation." (Janet O. v. Superior Court, supra, 42 Cal.App.4th at p. 1065, 50 Cal.Rptr.2d 57.)[4]
We conclude Janet O. was correctly decided and its reasoning readily applicable to the relieving of minor's counsel under section 317, subdivision (d). The power of the trial court to appointment counsel for a minor pursuant to section 317, subdivision (c), is dependent on a finding such appointment would benefit the child. We suspect that even in the absence of section 317, subdivision (d), a court would have the inherent power to terminate an appointment of counsel if it later determined that conditions requiring appointment either never did exist or no longer exist.[5]
We conclude there is good cause within the meaning of section 317, subdivision (d), to relieve counsel for a minor when the trial court finds such representation no longer beneficial to the child. The matter is, of course, one within the sound discretion of the trial court since the issue is one requiring particular knowledge of the case and knowledge and experience with the dependency system.
In the present case, by the time of the second post-permanency review hearing, the children were in stable adoptive placements, their counsel reported there were no current legal issues and, while protesting the *616 termination of her appointment to represent the children, offered no reason why continued representation would be beneficial to them. The trial court did not abuse its discretion in relieving the minors' attorney.
Appellants also argue the trial court erred in failing to give notice to minors that a termination of the appointment of counsel would be considered at the second post-permanency planning review hearing. We agree. The trial court was required to give notice that it was contemplating relieving minors' counsel. (See In re Janet 0., supra, 42 Cal.App.4th at pp. 1066-1067, 50 Cal.Rptr.2d 57.) There was, however, no indication minors' counsel was surprised by the issue. Counsel did not object on the basis of a lack of notice and we conclude the issue has been waived. (See In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1491, 69 Cal. Rptr.2d 1.)
The court's order relieving counsel is affirmed.
HALLER, J., and McDONALD, J., concur.
NOTES
[*] Mosk, J., dissented.
[1] All further statutory references are to the Welfare and Institutions Code.
[2] Family Code section 7800 et seq. now deals with freeing children from the custody and control of parents. Section 7861 states: "The court shall consider whether the interests of the child require the appointment of counsel. If the court finds that the interests of the child require representation by counsel, the court shall appoint counsel to represent the child, whether or not the child is able to afford counsel." Probate Code section 1471, subdivision (b), states in part: "If a conservatee or proposed conservatee does not plan to retain legal counsel and has not requested the court to appoint legal counsel, whether or not such person lacks or appears to lack legal capacity, the court shall ... appoint [counsel] to represent the interests of such person... if, based on information [known to the court, the court] determines that the appointment would be helpful to the resolution of the matter or is necessary to protect the interests of the conservatee."
[3] Guidelines for the appointment of counsel for minors in dependency cases have been provided in local court rules. Rule 17.16(b)(2)a) of the Rules of the Los Angeles County Superior Court dealing with dependency proceeding states in part: "At the arraignment and detention hearing, the court shall first determine whether a child would benefit from the appointment of counsel. A child four years of age or older, or a child of any age with special needs, or a child who is in an out-of-home placement with a non-relative caretaker, will generally benefit from the appointment of counsel." "Such appointment shall be made as soon in the dependency case as it is determined that the child would benefit from such counsel." (Rule 17.16(b)(1), Rules of the Los Angeles County Superior Court.)
Since it is unnecessary we do so, we take no position on this rule's relatively expansive statement of when counsel is of benefit to a minor in a dependency proceeding.
[4] The court in Janet O. went on to find that since the parents had been out of contact with their attorneys for over a year, counsel was, in the Tanya H. sense, unable to perform their duties and could be relieved for "cause." (In re Janet O., supra, 42 Cal.App.4th at pp. 1065-1066, 50 Cal.Rptr.2d 57.)
[5] We have reviewed the legislative history of section 317. While the matter is not entirely clear, it appears section 317, subdivision (d)'s language supporting the continuity of representation was designed to deal with the problem that counsel was often appointed and then relieved and different counsel unfamiliar with the case appointed for later hearings. (See Legis. Analyst, Analysis of Sen. Bill No. 243 (1987-1988 Reg. Sess.) as amended May 26, 1987, p. 2; Sen. Rules Com., Of. of Sen. Floor Analyses, Analysis of Sen. Bill No. 243 (1987-1988 Reg. Sess.) as amended May 26, 1987, p. 2; Assem. Com. on Human Services and Assem. Com. on Judiciary, Republican Analysis of Sen. Bill No. 243 (1987-1988 Reg. Sess.) proposed amend., p. 1; letter from Sen. Robert Presley to Governor Deukmejian (Sept. 17, 1987) regarding Sen. Bill No. 243 (1987-1988 Reg. Sess.) p. 2 [available at Cal. State Archives].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329033/ | 498 S.E.2d 599 (1998)
348 N.C. 272
STATE of North Carolina
v.
Clifton Harold PEARSON, Jr.
No. 165PA97.
Supreme Court of North Carolina.
May 8, 1998.
*600 Michael F. Easley, Attorney General by John J. Aldridge III, Assistant Attorney General, for the State.
Walter L. Jones, Greensboro, for defendant-appellant.
American Civil Liberties Union of North Carolina Legal Foundation by Sandy S. Ma, Raleigh, amicus curiae.
WEBB, Justice.
The Court of Appeals, in finding the seizure of contraband was proper, did not rely on the order of the superior court, which held the defendant consented to the search. The Court of Appeals held the search and seizure was lawful without a consent. This was error.
When an officer observes conduct which leads him reasonably to believe that criminal conduct may be afoot, he may stop the suspicious person to make reasonable inquiries. If he reasonably believes that the person is armed and dangerous, the officer may frisk the person to discover a weapon or weapons. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Butler, 331 N.C. 227, 415 S.E.2d 719 (1992); State v. Peck, 305 N.C. 734, 291 S.E.2d 637 (1982). The State argues and the Court of Appeals held that the evidence that the defendant had an odor of alcohol, acted "nervous and excited," and made statements inconsistent with his fiancée's statement as to their whereabouts the night before supports findings that the two officers had a reasonably articulable suspicion that the defendant may have been armed and dangerous. We disagree.
We cannot hold that the circumstances considered as a whole warrant a reasonable belief that criminal activity was afoot or that the defendant was armed and dangerous. The defendant was stopped at 3:00 p.m. on *601 an interstate highway. Both officers testified that he was polite and cooperative. He had a slight odor of alcohol but not enough to be charged with driving while impaired. This should not give rise to a reasonable suspicion of criminal activity.
The nervousness of the defendant is not significant. Many people become nervous when stopped by a state trooper. The variance in the statements of the defendant and his fiancée did not show that there was criminal activity afoot. The officers testified the defendant was frisked because it was standard procedure to do so when a vehicle is searched.
The officers had never before encountered the defendant. They were not aware of any criminal record or investigation for drugs pertaining to him. The defendant was polite and cooperative. The bundle in his pants was not obvious and was not noticed by either officer.
The defendant had been in the presence of Trooper Cardwell for over ten minutes. Cardwell had placed the defendant in his patrol car without a frisk. He left the defendant alone in the patrol car while he talked to the defendant's fiancée. The defendant had not made any movement or statement which would indicate that he had a weapon.
We hold that the circumstances in the instant case did not justify a nonconsensual search of the defendant's person. We, therefore, reverse the holding of the Court of Appeals as to this issue.
The State relies on State v. McGirt, 122 N.C.App. 237, 468 S.E.2d 833 (1996), aff'd per curiam, 345 N.C. 624, 481 S.E.2d 288, cert. denied, ___ U.S. ___, 118 S. Ct. 180, 139 L. Ed. 2d 121 (1997). In McGirt, the Court of Appeals held, and we affirmed, that it was lawful for an officer to frisk a person who had been removed from a vehicle when the officer knew that the defendant was a convicted felon who was under investigation for cocaine trafficking and that cocaine dealers normally carry weapons. None of these facts are present here. McGirt is not precedent for this case.
The State also relies on State v. Beveridge, 112 N.C.App. 688, 436 S.E.2d 912 (1993), aff'd per curiam, 336 N.C. 601, 444 S.E.2d 223 (1994). In that case, the Court of Appeals held, and we affirmed, that evidence of cocaine seized in a "pat down" search of the defendant after he had been removed from a vehicle should have been excluded. The defendant in that case appeared to be under the influence of some impairing substance. The basis of the holding in that case was that the search was intrusive. The Court of Appeals said that the officer was justified under Terry in frisking the defendant but that when the "pat down" did not reveal a weapon, the search should have been stopped. If the search was too intrusive, it was unlawful regardless of Terry. The mention of Terry in Beveridge was not necessary to a resolution of the case. It was dictum. Beveridge is not precedent for this case.
The Court of Appeals decided the case on the ground that there was a proper protective search, and did not reach the question of whether there was a consent to the search. This was the ground upon which the superior court decided the case.
The superior court relied on the consent to search the vehicle signed by the defendant and the fact that he did not object when he was searched to conclude the defendant consented to the search. This was error. The consent signed by the defendant applied only to the vehicle. We cannot broaden the consent to include the defendant's person. N.C.G.S. § 15A-223(a) (1997). We also cannot hold that the acquiescence of the defendant when the officer told him he would frisk him was a consent, considering all the circumstances. There must be a clear and unequivocal consent before a defendant can waive his constitutional rights. State v. Little, 270 N.C. 234, 239, 154 S.E.2d 61, 65 (1967).
Because we have held that the search of the defendant was unlawful, we reverse the decision of the Court of Appeals and remand for further remand to the Superior Court, Guilford County, to vacate the defendant's plea of guilty.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329451/ | 99 Ga. App. 19 (1959)
107 S.E.2d 255
SMITH
v.
CRAFT et al.
37474.
Court of Appeals of Georgia.
Decided January 29, 1959.
*21 Hugh Howell, Jr., Holcomb & Grubbs, J. M. Grubbs, Jr., for plaintiff in error.
J. G. Roberts, contra.
FELTON, Chief Judge.
1. The two counts of the petition are virtually identical except that the first is denominated an action for false arrest and the second is denominated an action for false imprisonment. The case will therefore be treated as an action in one count. There is no special demurrer to either count on the ground that it is duplicitous. The petition, treated as one count, does not set forth a cause of action for malicious arrest (or malicious prosecution) for the reason that it is not alleged that the proceeding terminated in favor of the plaintiff. The mere allegation in the petition that the defendant Coats & Clark, Inc., by and through its agent, the defendant H. P. Craft, has not pressed his complaint, but has deserted and abandoned the same, is not sufficient because since the statute of limitations has not expired the petition does not allege that the criminal proceeding instituted was terminated by judicial action. Waters v. Winn, 142 Ga. 138 (2) (82 S.E. 537, L.R.A. 1915A 601, Ann. Cas. 1915D 1248).
2. If the petition, treated as one count, proceeds on the theory of false imprisonment it sets forth a cause of action against the employee as against a general demurrer. The petition alleges that the employee "illegally" arrested and detained the plaintiff. Treating the petition as proceeding for false imprisonment, as against a general demurrer it means arrested and detained without a warrant or on a void warrant; if on the theory that there was no warrant the burden would be on the defendants to show *22 the legality of the arrest. Markovitz v. Blake, 26 Ga. App. 153 (105 S.E. 622); Holliday v. Coleman, 12 Ga. App. 779, 780 (78 S.E. 482). An action for false imprisonment need only show that the imprisonment was unlawful. Sheppard v. Hale, 58 Ga. App. 140 (197 S.E. 922); Vlass v. McCrary, 60 Ga. App. 744 (5 S.E.2d 63); Conoly v. Imperial Tobacco Co., 63 Ga. App. 880 (12 S.E.2d 398).
3. The petition sets forth a cause of action against the principal, Coats & Clark, Inc., for the above reasons and because the petition as against a general demurrer alleges that the employee was employed by his principal as a special policeman to patrol in and about its mill and grounds and that, while plaintiff was driving his automobile in front of Coats & Clark, Inc.'s property and mill and on a certain road, he was arrested, etc., and that the employee was driving an automobile marked "Police" on the side. The allegations are sufficient to allege that the employee performed the acts charged as a part of his duties of employment to patrol in and about the mill and grounds or that they were so closely connected as to be a part of his employment. Auld v. Colonial Stores, 76 Ga. App. 329 (45 S.E.2d 827). There are no allegations which negative the fact that the employer was performing his duties at the time and place alleged. See Savannah Electric Co. v. McCants, 130 Ga. 741 (2) (61 S.E. 713); Ledman v. Calvert Iron Works, 92 Ga. App. 733 (89 S.E.2d 832) and cases cited.
The petition stated a cause of action against both defendants for false imprisonment.
The court erred in sustaining the general demurrer. The judgment is reversed with direction that the case be tried as a single-count petition charging false imprisonment.
Judgment reversed with direction that so long as the issues raised by the pleadings remain as they are the case be tried as an action in one count charging false imprisonment. Quillian and Nichols, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329453/ | 99 Ga. App. 98 (1959)
107 S.E.2d 700
NATIONAL UNION FIRE INSURANCE COMPANY
v.
CARMICAL et al.
37393.
Court of Appeals of Georgia.
Decided February 13, 1959.
*102 Pittman, Kinney & Pope, J. T. Pope, Jr., for plaintiff in error.
Hardin, McCamy & Minor, Carlton McCamy, Mitchell & Mitchell, D. W. Mitchell, Jr., contra.
QUILLIAN, Judge.
In this case an insurer prayed direction by declaratory judgment as to whether it was bound under the conditions of an insurance policy issued by it to defend certain suits instituted against the insured by parties injured through the alleged negligent operation of his truck. The policy attached to the petition in addition to the provisions quoted in the foregoing statement of fact contained clauses reading: "II. Definition, settlement, supplementary payments: with respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall: (a) Defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient."
"18. Assistance and cooperation of the insured Coverages *103 A, B, D, E, F, G, H, I & J. The insured shall cooperate with the company, and upon the company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident."
The suits to which reference is made were brought by Paul Clayton and Mrs. Carolyn Clayton and arose out of injuries sustained by the Claytons in a collision with the truck before mentioned. The petitions in the cases predicated the causes upon the negligent operation of the truck by the insured's son.
The petition in this case alleges that the insured made a statement to the effect that his son was not permitted to drive the truck and did not operate it for his benefit on the occasion when the Claytons were injured. This allegation is followed by averments that, after the suits were filed but before the appearance day of the cases, the insured retracted the statement previously made and informed the insurer that he did permit his son to drive the truck and that the son was operating it for his benefit when the collision with the Claytons' automobile occurred.
The petition alleges that the insurer is uncertain as to whether the consequence of the misstatement and the conflicts in the statements made by the insured released it from the contractual obligation to defend the Claytons' suits. It is in reference to its duty to interpose defensive pleadings on behalf of the insured that direction is specifically sought.
The case is one of first impression in this State, but there is ample authoritative text and opinions of the courts of other jurisdictions to serve as guides to a correct decision of the questions to be decided.
Certain it is that the misrepresentation of an insured must prejudice the rights of the insurer in order to release the latter from its duty to defend actions under a clause similar to the one contained in this suit. In Standard Accident Insurance Co. of Detroit, Michigan v. Winget, 197 F.2d 97 (34 A.L.R. 2d 250, 251 (6), it is held that a misrepresentation by one insured by *104 an automobile liability insurance policy, to constitute a violation of the provision requiring the insured to cooperate with the insurer, must be material, and the false statement is not considered material where it is withdrawn or corrected in time not to prejudice the defense of the case.
There is other authority supporting this view. In the annotations following the Winget case in 34 A.L.R. 2d, supra, are the notes: "Misstatements by the insured promptly and seasonably corrected or withdrawn prior to the trial of the action against the insured have been held not to constitute a violation or breach of the co-operation clause. United States. Wheeler v. Lumbermen's Mut. Casualty Co. (1933, DC Me) 5 F Supp 193. For federal cases applying state law, see state hearings infra.; Alabama. General Acci. Fire & Life Assur. Corp. v. Rinnert (1948, CA5th Ala) 170 F2d 440; California. Standard Acci. Ins. Co. v. Winget (1952, CA9th Cal) 197 F2d 97, 34 ALR2d 250; Illinois. Rowoldt v. Cook County Farmers Mut. Ins. Co. (1940) 305 I11. App. 93, 26 NE2d 903; Oregon. Pacific Indem. Co. v. McDonald (1939, CA9th Or) 107 F2d 446, 131 A.L.R. 208. See Denley v. Oregon Auto. Ins. Co. (1935) 151 Or 42, 47 P2d 245, 946, infra, § 10; Pennsylvania. Conroy v. Commercial Casualty Ins. Co. (1928) 292 Pa 219, 140 A 905. . .
"Even where the misstatement is persisted in until shortly before the trial of the action against the insured, no breach has been found, where the insurer failed to show that the delay in telling the truth had prejudiced it. United States. For federal cases applying state law, see state headings infra. Illinois. Norwich Union Indem. Co. v. Haas (1950, CA7th Ill) 179 F2d 827; Michigan. Bernadich v. Bernadich (1938) 287 Mich. 137, 283 N.W. 5; Missouri. Cowell v. Employers' Indem. Corp. (1930) 326 Mo 1103, 34 S.W.2d 705; New Jersey. Rockmiss v. New Jersey Mfrs. Asso. Fire Ins. Co. (1934) 112 NJL 136, 169 A 663; Rhode Island. Marley v. Bankers' Indem. Ins. Co. (1933) 53 RI 289, 166 A 350."
The rule is stated in 29 Am. Jur. 601, §§ 792, 793: "An unintentional and accidental mistake in a statement of facts, made by the insured under a liability policy, especially if afterward seasonably corrected, does not establish such a lack of co-operation *105 as will create a defense for the insurer. Moreover, the mere inadequacy or untruthfulness of a statement made by the insured to the insurer, as to the circumstances of an accident, does not of itself necessarily constitute a breach of co-operation clause.. .
"The mere fact that the insured modifies or repudiates statements as to the accident and attending circumstances favorable to the defense does not necessarily constitute a breach of a co-operation clause of a liability policy, but such modification or repudiation may constitute a breach if fraudulent or a result of a collusive attempt to help the injured person."
The petition affirmatively showed that the first statement was withdrawn by the insured and another which was not alleged to be false substituted in its stead. Thus the petition shows that the insured supplied the insurer with what the defendant contends was correct and truthful information as to his son's authority and purpose in operating the truck on the occasion when it collided with the Claytons' automobile in ample time for the insured to prepare and file the defense it was bound to make in behalf of the insured.
The petition does not charge the insured with wilfully or consciously making an untruthful statement. There is ample authority for the view that a mere inaccurate or untrue statement, even when not seasonably withdrawn, does not necessarily constitute a failure on the part of the insured to comply with policy requirements that he cooperate with the insured in the preparation of a defense the latter is under the terms of the policy bound to defend in his behalf. The view is generally taken that the insured's statements must not only possess the quality of falsity but must have the taint of wilful deception on the part of its author. Albert v. Public Service Mut. Casualty Ins. Corp. (1943) 266 A.D. 284, 42 N.Y.S.2d 124, affd. without op. 292 N.Y. 633, 55 N.E.2d 507.
In the case of Rockmiss v. N.J. Mfrs. Assn. F. Ins. Co., (1934) 169 A. 663, the case most nearly resembling the facts of this case, a like conclusion was reached. It was held that the fact that the insured gave conflicting statements to the insurer, the first of which exculpated the insured from blame, and the second *106 tended to place liability upon him, was not a "failure to co-operate". "The insured is not accused of collusion with respondent in an effort to impose a fraudulent claim upon the insurer. It is not claimed that his second statement is tainted with falsity. On the contrary, appellants contend that they suffered detriment and injury by reason of the untruthful version of the occurrence given in the first statement. . . His [first] version of the occurrence . . . tended to exculpate him from negligence. It cannot be said that this denotes a failure to co-operate. . . Rather the reverse is the case. The insured thereby evinced a willingness and purpose to co-operate with and assist the insurer in resisting the claims for damages asserted by plaintiff. . . The conduct complained of is not within the letter or spirit of this clause of the contracts. If appellants' construction be adopted, the policyholder who denied negligence, and persisted in the denial until found guilty by a jury, would furnish grounds for avoidance. An adverse verdict would work a forfeiture. . . It is a firmly established rule of construction that policies of insurance will be liberally construed to uphold the contract, and conditions contained in them which create forfeitures will be construed most strongly against the insurer and will never be extended beyond the strict words of the policy. The court will never seek for a construction of a forfeiture clause in a policy which will sustain it, if one which will defeat it is reasonably deducible from the terms and words used to express it."
This case also holds that the insurance company is not injured by the contradictory statements given it by its insured where, prior to the time it is necessary for it to answer the suit, the true facts are made known to it, and it still has ample time, between then and trial, to investigate or settle the claim. Under the view expressed in this case, "failure to cooperate" which voids the policy must be limited to actions intended to be beneficial to the opposite side, and does not include a too enthusiastic resistance of the action, the effect of which would be to relieve the insurer of liability.
If absolute accuracy and complete consistency be made the standard of cooperation, the insurer's promise to defend actions of a particular nature brought against the insured can be voided *107 in nearly every instance. The insured may overlook a fact, that when taken into consideration demands that in giving a truthful account of the matter, he change his original statement. The treachery of memory has been recognized in the fiction and history of the ages, and many a truthful man unwittingly tells what but for a failure of recollection he would know to be false. Thus the facts that the insured withdraws a statement and gives another inconsistent does not necessarily mean he was conscious that the first was untruthful when it was made.
There is an averment that the insurer was deceived for a season by the first statement attributed to the insured, but the petition does not charge that the insured wilfully or intentionally misled the insurer to its detriment.
The petition alleges that the insured by informing the insurer, in his original statement, that his son was not on the occasion of the collision driving with his permission or for his benefit, caused the insurer not to negotiate with the Claytons in an effort to settle their claims before their suits were brought. In the first place we must revert to the observation that the petition contains no allegation showing the insured acted in bad faith or intentionally misinformed the insurer concerning his son's authority of the purpose for which he operated the truck. Moreover, the petition does not allege: (a) that the insurer could have settled the Claytons' claim for less than they will recover in the suits filed by them, or even less than the amount for which they sued; (b) that there was merit in the Claytons' claims; or that they can legally recover in the suits they have filed; (c) or that defenses could not be made after the suits were filed as could have been made prior thereto.
In the absence of allegations of the nature indicated the petition fails to show either that the insurer was prevented from making a settlement of the Claytons' claims or that the settlement of those claims would be to the insurer's interest.
In Standard Accident Insurance Co. of Detroit, Michigan v. Winget, 197 F.2d 97, supra, the view is expressed that where, as in this case there was timely withdrawal of the untrue statement, even though after the suits were filed against the insured, the insurer's opportunity to settle the case was not impaired, *108 since the claims of the plaintiffs might be settled after the suit was brought as well as before. The language of the Winget case at page 258 is: "While these decisions were made under Oregon and Alabama law respectively, they represent the majority rule in cases of this character which has been accepted by writers on the subject. Blashfield's Cyclopedia of Automobile Law and Practice, Perm Ed, 1945, Vol 6, Part 2, Sec 4059, pp 74, 78. They comport with the spirit of the California cases we have discussed. They stress the fact that the misrepresentation must be material. And it is not considered material when the false statement is withdrawn or corrected in time not to prejudice the defense of the case. As said in General Acci. Fire & Life Assur. Corp. v. Rinnert, supra, 170 F2d at page 442: `The misstatement was corrected long prior to the trial of the causes which resulted in the judgment; the insurance company had the facts and was in position to settle if it saw fit to settle, to defend if it saw fit to defend as it did.'"
We are of the opinion that the petition did not show the existence of a justiciable issue as to whether there was such failure to cooperate on the part of the insured as to voiding the policy or releasing the insurer from its policy to defend the actions on behalf of the insured in conformity with the provisions of the policy.
Judgment affirmed. Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Felton, C.J., dissents.
FELTON, Chief Judge, dissenting. I think the petition showed a justiciable issue especially in view of the fact that no general demurrer or motion to dismiss was filed. It was a jury question, under the allegations of the petition, whether the insured breached the "cooperation" clause of the policy. The agreement to cooperate in such a case means cooperate sincerely and in good faith. The insurance company had the right to introduce evidence on the question of the insured's cooperation in good faith. Such a conflict in information given to the insurance company certainly might have been found by the jury to be material, and one version to have been given in bad faith unless satisfactorily explained. If the insured failed to cooperate in good faith the insurance company was deprived of the right to *109 try to settle the case before an action was filed against the insured. Certainly the insurance company could not be required to prove that it could have succeeded in making a settlement before suits were filed, and it is not unreasonable to contend that a better settlement could be made before the filing of suits than afterwards. Surely it had the right to make the effort but was prevented from doing so. I do not think that the authorities cited by the majority fit this case or constitute persuasive or valid authority for the conclusion reached. I think the court erred in declaring the rights of the insured without stating what they were and in not submitting the one issue to the jury upon evidence introduced by the parties.
While the following does not pertain in any way to the foregoing dissent, it seems to be fitting to express my opinion on the subject matter involved. Prayer (d) of the petition for declaratory judgment here involved is as follows: "That the court declare the plaintiff's rights, status and other legal relations with each of the defendants in connection with the policy of insurance in the pending suits and pray that said court enter a judgment declaring that the plaintiff is not bound by reason of the issuance of this policy to pay any damages which may be assessed in one or both of said suits in the event that the court finds that the statements made by the defendants, H. D. Carmical and Charles Thomas Carmical, previous to the filing of said suits are true." In my judgment this prayer raises an issue which has not been passed upon by the majority opinion. I think it is the duty of this court to pass upon this question regardless of how unmeritorious the contention of the insurance company may be as to this point. The point is made and my view on it is as follows: Under coverage A, the insurer would be obligated to pay all sums which an insured, under the policy terms, should become legally obligated to pay whether the basis of liability of the son as an insured is based on the named insured's permission for his son to drive the truck, which would constitute the son an insured, under the policy, or whether the liability of the named insured is based on Ga. L. 1955, p. 454 (Code, Ann., § 68-301), the constitutionality of which has not been decided to this date insofar as we are informed. Both of these questions *110 are matters for determination in the trial of the damage actions against the father and son on the issue of their liability and it is not the purpose and intent of the declaratory judgment law to provide for the trial of such issues when it would result in the piecemeal trial of the damage actions. If such were the case half of the issues in the damage actions would be settled by the declaratory judgment action and the questions of negligence, proximate cause, etc., would be decided in the damage actions. Questions relating to the insurance company's liability under an insurance policy are not the proper subject matter in a declaratory judgment action if these questions are pertinent and necessary to a determination of the liability of an insured in an action for damages against the insured or insureds in the policy of insurance. Such questions can only be resolved in an action against the insurance company after a finding of liability against the insured. As to this phase of the declaratory judgment proceeding there was no justiciable issue on which the proceeding would be based. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329455/ | 99 Ga. App. 189 (1959)
107 S.E.2d 910
PENDLEY
v.
UNION BANKERS INSURANCE COMPANY.
37537.
Court of Appeals of Georgia.
Decided February 25, 1959.
D. B. Phillips, for plaintiff in error.
Cravey & Pentecost, M. K. Pentecost, Jr., contra.
QUILLIAN, Judge.
1. While it is true that this court has no jurisdiction of an appeal by direct bill of exceptions from a judgment in the Civil Court of Fulton County in a case wherein the amount involved is less than $300 (Ga. L. 1933, p. 290, §§ 1 and 3; Cox v. Dolvin Realty Co., 56 Ga. App. 649, 651, 193 S.E. 467; Gavant v. Berger, 182 Ga. 277, 281, 185 S.E. 506; Healey Real Estate &c. Co. v. Wilson, 74 Ga. App. 63 (1), 38 S.E.2d 747; Millikin v. Johnson, 78 Ga. App. 479, 51 S.E.2d 561), this court will not dismiss the writ of error in a case where it appears that, although the plaintiff prays recovery of the sum of $293.50 for hospital expenses and medicines under the terms of a policy of insurance upon which the suit was brought, the allegations of the petition reveal that in computing the total of the enumerated sums alleged to be due the plaintiff by the defendant insurance company, counsel for the plaintiff has committed a simple error in addition and that the true total sought to be recovered under the terms of the policy is $302.50. The facts alleged in a petition and not the prayer are determinative of the relief sought (Kinzy v. Waddell, 203 Ga. 689, 47 S.E.2d 872), and this court is required to know judicially, as a matter of common knowledge of the science of mathematics that the sum of "$75 for doctor's bills, $20 for operating room, $10 for X-rays, medicines $7.50, penicillin $10," is $122.50 and not "113.50" and that the sum of $122.50 and "$180 for hospital bills" is $302.50 and not "$293.50." The true amount for which suit is brought being in excess of $300, this court has jurisdiction of the writ of error.
2. In view of the ruling in the foregoing headnote, it is unnecessary to determine whether or not the 25 percent penalty alleged to be due the plaintiff under the provisions of Code § 56-706 constitutes a part of the "amount involved" within *190 the meaning of the act governing appellate procedure in the Civil Court of Fulton County (Ga. L. 1933, p. 290 et seq.). The defendant's request that the case of General Assurance Corp. v. Roberts, 92 Ga. App. 834 (1) (90 S.E.2d 70) be reviewed and overruled in so far as it is therein ruled that such penalty does constitute a legitimate part of such "amount involved", is denied and the motion to dismiss the writ of error is denied.
3. A general demurrer, like an oral motion to dismiss a petition for failure to set forth a cause of action, may be filed at any time (Miami Butterine Co. v. Frankel, 190 Ga. 88, 93, 8 S.E.2d 398, and cit.), and it is not error for the trial court, after duly and properly opening a default, to permit the defendant to file a general demurrer to the petition, nor is it error to overrule the plaintiff's motion to dismiss such demurrer as contravening the provisions of Code (Ann.) § 81-403, which requires all dilatory pleas to be filed on or before the appearance day.
4. "The time when an insurance policy shall become effective is an essential element of the contract, and the parties may fix a future date upon which it shall become effective. Clark, Rosser & Co. v. Brand, 62 Ga. 23; Metropolitan Life Insurance Co. v. Thompson, 20 Ga. App. 706 (7) (93 S.E. 299); Electric City Lumber Co. v. New York Underwriters Insurance Co., 43 Ga. App. 355 (158 S.E. 620); Matlock v. Hollis, 153 Kan. 227 (109 P.2d 119, 132 A.L.R. 1316); 6 Couch on Insurance, § 1328; 29 Am. Jur. 225, § 219; 32 C. J. 1164, § 277. A policy bearing a given date, and purporting to insure for the future only, can not be made the basis of an action to recover for a loss occurring on a prior date. Fowler v. Preferred Accident Insurance Co., 100 Ga. 330 (3) (28 S.E. 398)." Boswell v. Gulf Life Ins. Co., 197 Ga. 269, 272 (29 S.E.2d 71).
5. Where, under an application of the foregoing principles announced in the preceding headnote, it appears in an action on a policy of insurance that on September 25, 1957, the plaintiff made application for a policy of insurance, paid the sum of $19 and was given a receipt "for registration fee (if required) and three months premium," and it is stipulated in the receipt that "no liability is created or assumed by the company except for refund of this payment, until the policy applied for has been issued," and by the terms of the policy it is not to *191 become effective until October 15, 1957, such policy does not insure against injury sustained by the plaintiff on October 10, 1957, five days prior to the effective date of the policy. The trial court did not, consequently, err in sustaining the general demurrer to the petition.
Judgment affirmed. Felton, C. J., and Nichols, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262604/ | 18 Md. App. 360 (1973)
306 A.2d 568
CHARLES V. DUNHAM ET AL.
v.
THADDEUS H. ELDER.
No. 625, September Term, 1972.
Court of Special Appeals of Maryland.
Decided July 9, 1973.
The cause was argued before MENCHINE, SCANLAN and DAVIDSON, JJ.
Robert A. Diemer, with whom were Bill L. Yoho, Robert S. Hoyert, Roy W. Hooten, Joseph F. McBride and Hoyert, Diemer, Yoho, Hooten & McBride, Calvin E. Cohen and Wright & Cohen on the brief, for appellants.
William A. Ehrmantraut, with whom were Donahue & Ehrmantraut on the brief, for appellee.
SCANLAN, J., delivered the opinion of the Court.
Appellants, Charles V. Dunham, and his wife, Rose Marie Dunham, filed a malpractice action against the appellee, Thaddeus H. Elder, M.D., in the Circuit Court for Prince George's County. Their suit alleged that the appellee, a medical doctor engaged in general practice in Prince George's County in 1967, was negligent both in his diagnosis and in his treatment of Mr. Dunham's medical condition during the period from August 1, 1967 through February 1969.
Specifically, appellants claim that the appellee misdiagnosed Mr. Dunham's condition as gout and placed him on a course of treatment under which he took .5 gm. of a drug known as Benemid twice daily with one teaspoon of bicarbonate of soda in a glass of water with Tylenol, and that his use of Benemid over a period of time produced a *362 painful and debilitating condition in Mr. Dunham known as nephrotic syndrome, i.e., an inflammation of the kidneys, which was caused by an allergic reaction to the drug. Appellants further claimed Mr. Dunham was suffering from arthritis, and not from gout, and that when he was taken off the Benemid and soda prescription his medical condition substantially improved. Appellants also alleged that Mr. Dunham suffered a permanent disability as a result of damages to his kidneys, as well as an aggravated arthritic condition that would have been reduced or controlled but for the negligent treatment by the appellee.
At the conclusion of the appellants' case, the trial judge took the case from the jury by granting the appellee's motion for a directed verdict. The court below assigned three grounds in granting the motion. It found: (1) that there was insufficient testimony to present to the jury on the question of the standard of care required to be observed by a doctor in general practice in Prince George's County in 1967; (2) that there had been no showing of a breach of the requisite standard of care; and (3) that the appellants had failed to demonstrate sufficiently a causal relationship between the breach of standard of care and the injuries or damages complained of by Mr. Dunham.
We hold, for the reasons stated in this opinion, that the court below was correct in finding that the appellants did not establish the standard of care required of a general medical practitioner in Prince George's County in 1967, and also failed to demonstrate any breach of that standard. Accordingly, we do not reach the question of whether the appellants prima facie proved a causal relationship between the alleged deviation from the standard of care on the part of the appellee and the injury suffered by Mr. Dunham.[1]
*363 In deciding whether the appellee's motion for a directed verdict was properly granted in the court below, we will consider the evidence, together with all reasonable and legitimate inferences which may be drawn therefrom, in a light most favorable to the appellants. Carolina Coach Co. v. Bradley, 17 Md. App. 51, 299 A.2d 474 (1973). See also Stoskin v. Prensky, 256 Md. 707, 709, 262 A.2d 48 (1970).
In proving a malpractice case in Maryland, a plaintiff has the burden of proving: (1) the standard of medical skill and care ordinarily exercised in the particular locality; (2) a failure to observe that standard on the part of the physician-defendant; and (3) a showing that the defendant's failure to observe the proper standard was a direct cause of the injuries about which his patient complains in the malpractice action. Johns Hopkins Hospital v. Genda, 255 Md. 616, 620, 623, 258 A.2d 595 (1969); Suburban Hospital Association v. Mewhinney, 230 Md. 480, 484, 485, 187 A.2d 671 (1963). If proof of each of these elements is not shown, "the case is not a proper one for submission to the jury." Lane v. Calvert, 215 Md. 457, 462, 138 A.2d 902 (1958).
In determining what is the proper standard of medical care which must be observed by a physician, either specialist or general practitioner, several different rules have been applied by the courts. In a number of jurisdictions the standard of medical skill and care required is not merely that of other physicians and surgeons practicing in the defendant's own community, but rather the standard adhered to by physicians and surgeons of ordinary skill and care in either the defendant-doctor's community, or in a similar community. Malpractice Care Nonlocal *364 Testimony, 37 A.L.R.3d 420, 424 (1971). In jurisdictions following this rule the mere fact that a physician called as an expert by the plaintiff has never practiced in the immediate neighborhood where the alleged malpractice occurred will not necessarily disqualify him from testifying concerning the standard of practice in that locality, provided the witness is familiar with the standard of care ordinarily observed by other physicians in either the defendant's community or a similar locality. Lewis v. Johnson, 12 Cal.2d 558, 86 P.2d 99, 101 (1939); Murphy v. Dyer, 409 F.2d 747, 748 (10th Cir.1969). An even more liberal rule is followed in some jurisdictions where the applicable standard of care is not tied to any particular geographic locality. In these jurisdictions, the standard of care in the defendant's locality, or the standard in the general neighborhood of the defendant's locality, or in a similar locality; is simply a factor which may be considered when determining the defendant's guilt or innocence of the malpractice charge. 37 A.L.R.3d at 424. See, e.g., Carbone v. Warburton, 11 N.J. 418, 94 A.2d 680, 684 (1953), and McElroy v. Frost, 268 P.2d 273, 280 (Okla. 1954). The third, and most restrictive rule, observed in a few jurisdictions is that an expert medical witness must be familiar with the standard of care possessed and exercised by physicians in the defendant's own community or locality, the so-called "strict locality rule." 37 A.L.R.3d at 424; Lockart v. Maclean, 77 Nev. 210, 361 P.2d 670, 673 (1961). We read the Maryland precedents to apply the more strict rule that the plaintiff must show that the defendant-physician failed to exercise "the amount of care, skill and diligence as a physician and surgeon which is exercised generally in the community ... in which he was practising. ..." (Emphasis added.) State v. Fishel, 228 Md. 189, 195, 179 A.2d 349 (1962); Kruszewski v. Holz, 265 Md. 434, 438, 290 A.2d 534 (1972); Nolan v. Dillon, 261 Md. 516, 534, 276 A.2d 36 (1971).
Maryland's adherence to the strict locality rule is, however, a distinct minority view. In recent years, "as the dissemination of medical information has become quicker and methods of treatment have become more uniform, the *365 trend in an ever-growing number of jurisdictions has been to allow medical witnesses from localities other than that in which the defendant practices to testify, in a malpractice case, to the standard of care that the defendant should have observed," without being tied solely to the standard prevailing either in the defendant's own community or in similar localities. 37 A.L.R.3d at 424. Thus, if the issue were one of first impression in Maryland and its resolution was necessary in order to decide this appeal, we might be persuaded to hold that the requisite standard of medical care and skill to which a physician should be held is the standard which applies either in the general neighborhood of Prince George's County or in similar localities, including, but not limited to, the metropolitan Washington area. On the facts of the instant case, however, we need not speculate whether the strict locality rule should be relaxed in view of the present status of medical knowledge. Our review of the record in this case reveals that there was no testimony introduced by the appellants to establish what the requisite standard of medical care and skill for a general practitioner was, either in the Prince George's County area, the State of Maryland as a whole, or the metropolitan Washington area in 1967.
In attempting to demonstrate the requisite standard of medical care and skill, the plaintiff called two medical witnesses. The first of these, Dr. Fletcher Derrick, was a urologist. Dr. Derrick testified that he had never practiced, treated patients, enjoyed privileges in any hospital or maintained an office in Maryland. He came to Washington, D.C. in December 1970, where he now practices urology and is associated with George Washington University Hospital. Upon objection by counsel for appellants, Dr. Derrick was not permitted to give an opinion as to the standard of care required of a general practitioner in the State of Maryland in 1967. Thereafter, he was accepted by the court as an expert qualified in the field of urology. The court correctly ruled, however, that although Dr. Derrick could testify as a urologist, "he is not qualified for the purposes required in Maryland law to testify as to what the standard of care was *366 in Maryland [including Prince George's County] in 1967 of a G.P."
Dr. Maurice H. Herzmark also testified on behalf of the appellants. Dr. Herzmark had engaged in the general practice of medicine and surgery in Washington, D.C. from 1925 to 1928. In that year, he gave up his practice to become a resident surgeon at a hospital in New York. His subsequent career as a doctor has been in the field of orthopedic surgery. Dr. Herzmark was never licensed to practice in Maryland and has not practiced here. From the record, it appears that Dr. Herzmark was never qualified as an expert witness at the trial and his testimony was solely that of an examining physician.
Dr. Herzmark did testify that the standard of care for an orthopedic surgeon in 1928 was the same as that required of a general practitioner in that year and that he had not heard that the 1928 standard had been changed today. Dr. Herzmark never testified, however, as to the standard of care required of a general practitioner, either in Maryland or Prince George's County, in 1967.
The appellants offered no other testimony concerning the standard of medical care required in Maryland or Prince George's County in 1967, other than that of Doctors Derrick and Herzmark. Clearly, their testimony was insufficient to establish what was the standard of medical care and skill required of a general practitioner in Prince George's County, or for that matter, in Maryland, in the year 1967.
Appellants contend, however, that Maryland has abandoned the strict locality or community rule referred to supra. We do not discern that to be so. Apart from the cases previously cited in this opinion, we refer to the Court of Appeals' decision in Tempchin v. Sampson, 262 Md. 156, 159, 277 A.2d 67 (1971), where the Court once again held that the degree of medical care and skill that must be observed by physicians is the same as that practiced by other physicians in the same field of medicine in the community where the defendant-doctor practiced. Moreover, even if we were to agree that the strict locality standard had been modified so as to permit an expert medical witness to testify what the *367 requisite standard is in Prince George's County by showing what standard is followed in similar localities, the appellants' case would not be helped. Neither Dr. Derrick nor Dr. Herzmark offered testimony concerning such broader standard.
Since the appellants did not establish the requisite standard of medical care and skill, either in Prince George's County, or in Maryland generally, it follows that there has been no demonstration of a breach of that standard. It is true that Drs. Derrick and Herzmark gave testimony which was critical of Dr. Elder's original diagnosis of Mr. Dunham's gout condition and also challenged the treatment he prescribed for the patient. Their testimony along these lines might have been enough to submit to the jury on the question of breach, if the standard of care required had been established during the course of the appellants' case. Appellants' failure to show that standard, however, made it impossible for them to shoulder successfully their second burden, i.e., that Dr. Elder had failed to observe such standard in his treatment of Mr. Dunham.
Having concluded that the appellants did not establish the applicable standard and, as a consequence, could not show a breach or departure from that standard, we need not consider whether or not appellants' evidence boosted them over the third hurdle in their path, viz., to show that the appellee's failure to observe a proper standard of care was a direct cause of the injuries about which Mr. Dunham complains.
Judgment affirmed; appellants to pay the costs.
NOTES
[1] Appellants also contend that the trial court erred in refusing to adopt their counsel's suggestion that a new trial be granted because of remarks made by the trial court out of the presence of the jury concerning statements made in court by one of the appellants' witnesses, Dr. Herzmark. This witness accused (in jest he said) appellee's counsel and the trial judge of what, if true, would be serious professional improprieties, descending perhaps to the level of crimes. Appellee's counsel brought these remarks to the attention of the court. Dr. Herzmark was then questioned by the judge about them, out of the presence of the jury. Examination of the transcript establishes that the trial judge, despite the witness's inexcusable misconduct, was extremely restrained in questioning him. Moreover, at the conclusion of the examination the trial judge made it clear that he would take no action against the doctor or do anything to impair the appellants' case. We find, therefore, no abuse of judicial discretion in the trial court's discreet handling of this unfortunate incident. Lucas v. Williams, 218 Md. 322, 329, 146 A.2d 764 (1958); and see Britton v. State, 10 Md. App. 70, 74, 267 A.2d 747 (1970). We note also that appellants' counsel never actually moved for a mistrial based upon the judge's questioning of Dr. Herzmark. The question, therefore, was not preserved for purposes of this appeal. Rule 1085. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262607/ | 269 Md. 371 (1973)
306 A.2d 248
O'DOHERTY ET UX., ETC.
v.
CATONSVILLE PLUMBING AND HEATING COMPANY, INC.
[No. 280, September Term, 1972.]
Court of Appeals of Maryland.
Decided June 25, 1973.
The cause was argued before MURPHY, C.J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.
Herbert Burgunder, Jr., with whom was F. Gray Goudy on the brief, for appellants.
Phillips L. Goldsborough, III and Theodore B. Cornblatt, with whom were Smith, Somerville & Case on the brief, for appellee.
McWILLIAMS, J., delivered the opinion of the Court.
In O'Doherty v. Catonsville Plumbing and Heating Co., 262 Md. 646, 278 A.2d 557 (1971), we reversed the judgment ensuing from the direction, at the close of O'Doherty's case, of a verdict in favor of the defendant, Catonsville, at the same time remanding the case for a new trial. At the conclusion of the new trial before Proctor, J., and a jury, the verdict was in favor of Catonsville. O'Doherty again has appealed but, of course, for different reasons. Except to recall that O'Doherty still insists the fire started under the tub in the bathroom adjoining "grandma's" second floor *373 room, it will not be necessary to repeat the facts set forth in O'Doherty. We shall recite only the additional facts developed at the second trial.
Lieutenant William Harmon of the Investigative Division of the Baltimore County Fire Department arrived at the scene while the fire was in progress. Testifying for Catonsville he said that in his opinion, based on his investigation, the fire had not been started by the plumbers.
Louis W. Irvin, chief of the division, called to testify for the plaintiff, "felt" the fire started on the third floor where he found evidence of an electrical short circuit.
Four days after the fire Nelson Williams, a professional fire investigator, examined the house. He said that in his opinion the plumbers could not have started the fire.
Clifford Anderson, an electrician called to testify by O'Doherty, said he "was told to look at that area [under the bathtub] and to see if anything electrical [had] started the fire." He said that in his opinion an "electrical fire did not start in there."
Charles H. Winter, Jr., a consulting engineer produced by O'Doherty as an expert witness, repeated substantially the same testimony he gave in the first trial. Since his testimony was discussed in considerable detail in O'Doherty, a repetition of what we said there is unnecessary.
To expose the fallacy of Winter's theory that the plumbers probably started the fire, Catonsville performed a demonstration in open court. It had fashioned a wooden box four feet long, twenty inches wide and eight inches high, precisely the dimensions of the area enclosed by the floor joists, the bottom of the bathtub and the upper side of the first floor ceiling. A copper trap and drain pipe, identical with the trap and drain the plumbers worked on, were set up inside of the box. A shallow pan of water was placed beneath the trap; sawdust, wood shavings and chips were spread on the bottom of the box from the pan to the other end of the box. When the box was placed on a table a small fan near the end opposite the trap drew air through the box simulating the current of air Winter said was present in the space under the tub.
*374 The same plumbers who did the work in the O'Doherty house then, in the presence of Judge Proctor and the jury, unsweated and resweated the joint just as they had in the O'Doherty house using an identical Presto-Lite torch. The operation was performed first with the sawdust and the wood chips as close as six inches from the joint; it was repeated without the pan of water with the sawdust and the wood shavings within two inches of the joint making it possible for the hot solder to drip directly onto the sawdust and shavings. There was no evidence of burning. It was shown also that the torch could be pointed directly at the sawdust and shavings 11 inches from the visible end of the flame without any evidence of combustion. Although given an opportunity to suggest variations in the demonstration the appellants were unable to develop anything meaningful.
I.
The first of O'Doherty's three contentions charges Judge Proctor with an abuse of discretion in permitting Catonsville's demonstration to be performed in open court. Not only was it "too demonstrative," he argues, it also failed to reproduce the "attitude existing when the plumbers did their work at the O'Doherty home."
Both parties cite Smith v. State Roads Commission, 240 Md. 525, 538, 214 A.2d 792 (1965), as authority for the proposition that trial judges are vested with a generous amount of discretion in this area, a discretion that will not be disturbed on appeal unless abuse is apparent. But, as O'Doherty's counsel emphasizes, we seem not to have considered, until now, a demonstration performed in open court in the presence of the judge and the jury. We are not persuaded, however, that the mere fact of its performance in court denigrates the evidential validity of a demonstration. That other jurisdictions have taken a like view is reflected in the excerpt, from 29 Am.Jur.2d, Evidence § 819, which follows:
"The courts now very generally permit a party to make or perform an experiment, demonstration, or *375 test in open court before the jury when it will prove, tend to prove, or throw light upon, the issues in the case on trial, provided such experiments or tests are made under similar conditions and like circumstances to those existing in the case at issue. Demonstrations or experiments before the jury should ordinarily be conducted within the courtroom if it is practical to do so; if it is not practical to do so, they may be conducted outside, subject to the same conditions and limitations applicable to demonstrations or experiments made in the courtroom....
"It has been held or recognized that tests and experiments in the courtroom may be used in order to demonstrate the trustworthiness and competency of an expert."
There can be little doubt, moreover, that when the demonstration takes place in open court the trial judge is better able to maintain strict control over every aspect of it. We are fully persuaded, from our study of the record, that Judge Proctor not only exercised strict control over the conduct of the demonstration but that before he permitted it to proceed he allowed unlimited cross-examination and full argument in respect of the fairness of the demonstration and the essential similarity of conditions. In fact what he did might well be a textbook example of what a trial judge should do in these circumstances. If, here and there, he was less than fair, O'Doherty was the beneficiary rather than Catonsville. We suspect that the expression "too demonstrative" suggests O'Doherty's conviction that the demonstration fatally eroded his case in the eyes of the jury. Indeed we think it likely that was the case. We see no merit in the complaint that the attitude of the plumbers was not reproduced with appropriate similitude.
II.
O'Doherty next contends it was error for Judge Proctor to allow Nelson Williams to answer a hypothetical question in this manner:
*376 "A. Your Honor, it is my opinion that the plumbers could not have caused the fire and I base it on two particular items. Number one, if the fire had started at that point all the wood in that area would be completely consumed and also based on the fact that I can't see a fire that could smolder for twenty-two hours without being discovered, because if it would have burned that much it would have vented itself somewhere. Twenty-two hours is a long time.
"(Mr. Burgunder) If your Honor please, I would like to move that the answer given to this hypothetical question be stricken from the record.
"(The Court) Motion overruled."
He says that because the question was asked in a "piecemeal" fashion the jury was confused and that, moreover, the question called for an opinion as to the ultimate issue to be decided. Apart from the fact that these points were not raised in the court below, Maryland Rule 885, we think Shivers v. Carnaggio, 223 Md. 585, 165 A.2d 898 (1960), and Clautice v. Murphy, 180 Md. 558, 567, 26 A.2d 406 (1942), are dispositive in respect of both.
It is argued, also, that the question did not contain material facts in evidence. A hypothetical question need not include all of the facts in evidence; any fair summary which can support the formulation of a rational opinion will suffice. Williams v. Dawidowicz, 209 Md. 77, 86, 120 A.2d 399 (1956). That portion of the record which embraces the formulation of the hypothetical question and the disposition of the many objections thereto make it quite clear, we think, that Judge Proctor handled the matter with care, skill and fairness, and that when finally he allowed Williams to answer, the question was quite proper. In any case, the admissibility of a hypothetical question lies largely in the discretion of the trial court, Nolan v. Dillon, 261 Md. 516, 532, 276 A.2d 36 (1971), and the cases therein cited. We think Judge Proctor's ruling falls a parasang short of an abuse of discretion.
*377 III.
O'Doherty's third and final contention is rather startling. We shall state it as it appears in his brief:
"The court's charge taken in its entirety amounted to a prejudicial refusal to instruct the jury that if they found that the defendant started the O'Doherty fire, then in that event there arose a presumption of negligence on the part of the defendant which presumption, if not rebutted by the defendant, would be sufficient to support a judgment against the defendant. In other words, once a `preponderance of affirmative evidence' established that the defendant started the fire, then the presumption of negligence on the part of the defendant would support a judgment against the defendant without a `preponderance of affirmative evidence' that the defendant was negligent."
His requests for instructions (denied) embodied the concept set forth above. What follows is the relevant portion of Judge Proctor's charge to the jury:
"If, after you have weighed and considered all the evidence as to how the fire started, you find that the plaintiffs have not met the burden of proof as to whether Smith or Lincoln, the defendant's employees, started the fire, or you find that your minds are in a state of even balance on that point, then under those circumstances you need not consider the other factor in the case, and will return a verdict in favor of the defendant.
"If, on the other hand, you find that the plaintiffs have met the burden of proving that Smith or Lincoln, the defendant's employees, started the fire, you would then proceed to determine whether or not the plaintiffs have met the burden of proving that the fire was caused by the negligence of Smith or Lincoln, the defendant's employees. In that connection you are instructed that if you find that *378 the fire was started by Smith or Lincoln, the defendant's employees, a presumption arises that the fire was attributable to the negligence of Smith or Lincoln. This presumption, however, is rebuttable. This means that under those circumstances the defendant has the burden of going forward in an effort to rebut the presumption of negligence. If, after weighing and considering all of the evidence on the question of negligence and giving due weight to the presumption of negligence on the part of Smith or Lincoln, the defendant's employees, you determine that the plaintiffs have not met the burden of proving that the fire in the O'Doherty's home was caused by the negligence of Smith or Lincoln, the defendant's employees, or if you find that your minds are in a state of even balance on that point, then under those circumstances you will return a verdict in favor of the defendant.
"If, on the other hand, you find that the plaintiffs have met the burden of proving that the fire was caused by the negligence of Smith or Lincoln, the defendant's employees, then under those circumstances you will return a verdict in favor of the plaintiffs." (Emphasis added.)
It is at once obvious that O'Doherty got somewhat more than he was entitled to get. Judge Proctor's use of the term "presumption" (in the italics) is perhaps infelicitous. But taking the charge as a whole it is clear that it embodies the concept of a prima facie case; while Catonsville had the burden of going forward with the evidence, the burden of proof rested always with O'Doherty. If we understand O'Doherty correctly he would like to shift the burden of proof to Catonsville. We think what we said in O'Doherty retains validity and is, perhaps, the complete answer to this third and final contention:
"It must not be supposed that we are suggesting the appellants' case is bullet-proof. We hold only *379 that on this record they have established a prima facie case and that the burden of going forward with the evidence thereupon shifted to the appellee. The appellee may have some heavy shot in its locker and, when the case is tried again, it may be able to present affirmatively, uncontradicted, uncontroverted and inherently probable facts making untenable the inferences we think the appellants presently are entitled to rely upon. Arshack v. Carl M. Freeman Associates, Inc., 260 Md. 269 (1971), and the cases therein cited." 262 Md. at 656-57.
Error is also assigned in the refusal to instruct the jury that the Presto-Lite torch was an "inherently dangerous" tool. That the torch can be used to start a fire can hardly be gainsaid. A kitchen match has the same potential. Counsel, in his argument to the jury, pressed this point with much skill and great vigor but, obviously, the jury was not impressed; nor are we.
Catonsville still insists Judge Proctor should have directed a verdict in its favor and while we see merit in its argument any discussion of it, in the circumstances, would be academic.
Judgment affirmed.
Costs to be paid by the appellants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262610/ | 224 Pa. Superior Ct. 512 (1973)
Commonwealth
v.
Pennebaker, Appellant.
Superior Court of Pennsylvania.
Argued March 12, 1973.
June 14, 1973.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and SPAETH, JJ.
Richard M. Mohler, Public Defender, for appellant.
Horace J. Culbertson, for Commonwealth, appellee.
OPINION BY HOFFMAN, J., June 14, 1973:
Appellant was found guilty of burglary and larceny, and sentenced to serve a term of imprisonment of not *513 less than three and one-half nor more than seven years. He now appeals, contending that the lower court erred in allowing the victim of the crime to make an in-court identification of him and that prejudicial error was committed because he was allowed to appear at trial clothed in a prison uniform.
The burglary occurred at the Barnett Electrical store in Milroy, Pa., on February 13, 1968. Clair C. Barnett, the owner of the store, testified that he was returning to the rear of the store between 12:00 and 12:10 A.M., when he saw a man walking out of his office carrying a radio. He observed the man walking from that office to an adjacent one, and watched his rummaging through the drawers of a desk. Finally, as he called out, the burglar froze for several seconds, and then fled. Barnett called the police and supplied them with a detailed description of the burglar, noting that the person had a distinctive right eye and a deeply dimpled chin. He also told the police that the burglar was wearing a blue sweater with a light colored shirt underneath.
Later that day, seven photographs were shown to Barnett, none of which were of appellant. Barnett made no identification on this display. On the following day, four photographs were shown to Barnett, three of which were of appellant, but taken at different times: one in 1959, one in 1960, and one in 1965. Barnett stated that the person depicted in the 1965 photograph was the person in his store on the night of the burglary. Appellant was arrested on that same day and taken to Barnett's store where Barnett stated that he was "100% sure" that appellant was the burglar.
Prior to trial, appellant moved to suppress all identifications. The lower court held a "taint hearing" during which appellant was placed in a line-up with six persons of similar physical characteristics. Barnett *514 picked out the appellant as the burglar. After the hearing, the lower court ruled that, because of the suggestive nature of the out of court procedures, those identifications must be suppressed. The lower court, however, ruled that Barnett would be allowed to make an in-court identification, finding that it was independent of any previous identification.
We believe that under the totality of the circumstances, Commonwealth v. Williams, 440 Pa. 400, 270 A. 2d 226 (1970), the lower court was fully justified in finding the victim's in-court identification to be independent of the suggestive identification procedures. The following circumstances lead us to this conclusion: the opportunity of the victim to observe the unmasked burglar in a brightly lit office; the absence of any discrepancy between the detailed description given by the victim to the police and the appellant's physical appearance; the short interval between the criminal incident and the first identification of appellant; and the positive and unwavering identification by the victim through direct and cross-examination. See, e.g., Commonwealth v. Spencer, 442 Pa. 328, 275 A. 2d 299 (1971); Commonwealth v. Williams, supra, (ROBERTS, J., concurring); Commonwealth v. Hall, 217 Pa. Superior Ct. 218, 226, 269 A. 2d 352 (1970); United States v. Kemper, 433 F. 2d 1153 (D.C. Cir. 1970). Furthermore, a Commonwealth witness stated that she had seen appellant immediately before the burglary and that he was wearing a blue sweater and light colored shirt, thus corroborating the description given by the victim on the night of the burglary.
Appellant's second contention is that prejudicial error, was committed in that he stood trial while clothed in prison garb. This factual contention is denied by the appellee; is nowhere mentioned in the lower court's opinion; was not raised in post-trial motions; *515 and is not indicated in the record. We have held that it is error to allow a criminal defendant to stand trial clothed in such a manner after an objection and a request for a continuance to obtain civilian clothing has been refused. Commonwealth v. Keeler, 216 Pa. Superior Ct. 193, 264 A. 2d 407 (1970).
Having failed to raise this issue at trial when the trial judge could have taken corrective action, appellant cannot raise this issue for the first time on appeal. See, e.g., Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968); Commonwealth v. Jennings, 442 Pa. 18, 24, 274 A. 2d 767 (1971); Commonwealth v. Sullivan, 450 Pa. 273, 299 A. 2d 608 (1973).
Judgment of sentence affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262612/ | 83 Cal.Rptr.2d 734 (1999)
71 Cal.App.4th 256
Richard McDONALD, Plaintiff and Appellant,
v.
SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent.
No. B107706.
Court of Appeal, Second District, Division Two.
April 8, 1999.
*735 Engstrom, Lipscomb & Lack, Walter J. Lack, Jerry A. Ramsey and Daniel G. Whalen, Los Angeles, for Plaintiff and Appellant.
Crosby, Heafey, Roach & May, Joseph P. Mascovich, Benjamin G. Shatz, Steptoe & Johnson, Los Angeles, and Lawrence P. Riff for Defendant and Respondent.
Certified for Partial Publication. [*]
MALLANO, J.[**]
Plaintiff Richard McDonald appeals from a judgment on special verdict in favor of defendant Southern Pacific Transportation Company, and from an order denying his motion for judgment notwithstanding the verdict, in a suit for personal injuries under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.; FELA).[1] He contends that the evidence was insufficient to support the verdict, and that a new trial is in any event required because of prejudicial jury misconduct. We conclude that the showing of misconduct requires a new trial, but that the evidence did not warrant grant of judgment notwithstanding the verdict.
FACTS
The accident that gave rise to this action occurred on the morning of October 21, 1991, at defendant's Los Angeles intermodal container transfer yard (yard), at which cargo containers are transferred between trailer trucks and railcars. Plaintiff was employed by defendant as a brakeman, working with engineer Edward Fitzgerald and conductor Victor Brown in assembling a freight train by backing ("shoving") a group or "cut" of railroad cars from an adjacent yard. Fitzgerald ran the locomotive that shoved the cars, while plaintiff and Brown operated pickup trucks in the yard. The three maintained contact by radio. Fitzgerald's radio was mounted in the locomotive. Plaintiff carried his suspended on his chest by a neck strap.
Plaintiffs immediate assignment was to guard or "protect" a grade crossing (J-crossing), frequently traversed by trucks, and over which the railcars would pass after proceeding from a curve through an underpass 462 feet away. The crossing was not equipped with gates or signals. It had "stop" indicators painted on the pavement, and plaintiffs truck was equipped with flashing red lights. Because Fitzgerald could not see ahead of the cars he was shoving, plaintiff served as his "eyes" at the crossing, assuring it was clear of traffic until the railcars entered it.
As was common practice, plaintiff stopped his truck on the track at the J-crossing to obtain the earliest possible view of the railcars as they emerged from the underpass. After conductor Brown radioed that he had *736 thrown a switch necessary for the shove to proceed, plaintiff informed Brown and Fitzgerald by radio that he was at the J-crossing, protecting it, and that the shove, along track 812, could proceed.[2] Brown then said, "Okay. Back up." Fitzgerald began the shove, attaining a speed of about eight miles per hour.
Plaintiff then received a broadcast from Fitzgerald that locomotives for a long-haul train ("road power") were coming out of the roundhouse, which would mean that a switch would have to be realigned to enable the crew's next scheduled operation. Plaintiff accordingly sought to contact the crew of the "road power," to request that they throw the switch after passing it. To do this, plaintiff turned his head downward to switch the radio from his "yard" frequency to a "road" channel, activate the talk button, and speak into the microphone.
It took plaintiff three attempts to complete the call. He then looked up toward the underpass, and saw the shoved cars coming toward him. Plaintiff "hit the gas" on his truck, but the engine died and the truck did not move. He then attempted to radio Fitzgerald to stop the train, twice stating, "That'll do" (railroad jargon for "stop"). Fitzgerald, however, did not receive this transmission, because plaintiffs radio was still switched to the road channel. The cut of railcars crashed into plaintiffs truck, crushing it and dragging it several hundred feet.[3] Plaintiff was not extracted from the wreckage for more than an hour. He suffered disabling leg and hand injuries.
At trial, plaintiff asserted several theories of defendant's negligence, causative of his injuries.[4] Among these was that defendant had provided an unsafe workplace by placing plaintiff on the tracks to guard the J-crossing, a condition that could have been obviated by maintaining crossing gates there.[5]
In this connection, rule 103 of defendant's General Code of Operating Rules provided that "When cars are shoved ... over road crossings at grade, a crew member must be in position on the ground at the crossing to warn traffic until it is occupied," but that "Such warning is not required when: [¶] (1) Crossing gates are in fully lowered position...." The testimony repeatedly reflected that defendant had not placed crossing gates at the J-crossing. Testifying under Evidence Code section 776, Paul Earls, defendant's yard trainmaster (crew and rules supervisor) on the day of the accident, could provide no reasons why defendant had not done so, except to state that he had not seen crossing gates "inside of a plant like that where it's solely operated by Southern Pacific employees." Earls further testified that as of the time of the accident, roughly 10 to 18 movements of trains over the J-crossing occurred during each 24-hour shift. He then was asked, assuming crossing arms had been present, "In the average 24 hours, there would be 10 to 18 occasions when those crossing arms would have to lower to protect the `J' crossing; right?" Earls replied, "That's correct."[6] Defendant offered no contradictory (or any other) evidence regarding the frequency with which gates at the J-crossing would be lowered during normal yard operation.
In his summation, plaintiffs counsel stressed Earls's testimony in connection with his argument that crossing gates or signals would have made safer the conditions under *737 which plaintiff was required to protect the crossing.[7] In reply, defendant's counsel urged that defendant's method of guarding the crossing had been reasonable, and noted that plaintiff had not called any expert to testify that crossing gates were necessary or advisable. Commencing his rebuttal, plaintiffs counsel again argued: "I'm still waiting. I didn't hear one word in explanation. Southern Pacific is definitely silent on why... don't you people put a guard gate up at that crossing at `J'? You would only have to move it 10 to 18 times every 24 hours."
The case was submitted to the jury on a special verdict, requiring it first to determine whether defendant had been negligent and then, if so, to decide issues of causation, comparative negligence, and damages. By a vote of 9-3, the jury found that defendant had not been negligent. Judgment for defendant accordingly was entered.
Plaintiff moved for judgment notwithstanding the verdict or for a new trial. Both motions asserted insufficiency of the evidence to support the verdict. (See Code Civ. Proc., §§ 629, 657, subd. 6.) In addition, the motion for new trial cited jury misconduct. (Code Civ. Proc., § 657, subd. 2.) In that connection, plaintiff tendered the declaration of Prentice Brown, one of the three jurors who had dissented from the verdict.
Among other things, Brown's declaration related certain statements and conduct by another juror, Fred Silverman, during the jury's deliberations. On voir dire, Silverman had identified himself as a career transportation consultant who did "some work, mainly with public agencies, but very often involving railroad operations, mainly grade crossings...." On questioning by plaintiffs counsel, he stated that he had driven through the yard in connection with property acquisition, and that "there are other places, not in yards, where I have looked at line sections and grade crossings, grade crossing problems." Silverman stated he had not done any work regarding grade crossing safety or equipment design, nor had he had such training, but he was "aware of devices, aware of regulations, et cetera."
According to Brown's declaration, during deliberations another juror, Hobson, who also ultimately voted for plaintiff, had broached the issue of whether defendant should have installed crossing arms at the J-crossing. Silverman then had "stood up and said, `No, that's totally wrong because you've got trains sitting on that track,' and he drew a diagram on the blackboard where [defendant] in his opinion would place these sensors, and he offered the suggestion, `If they place these sensors here, because this is a rail yard, there would be cars sitting on the tracks all the time and the arms would be down all the time because there are cars just sitting there waiting to be picked up.' He said, `This is the reason why the arms weren't installed.'" As Brown added, there had been no evidence introduced about sensors controlling crossing gates.
In response to Brown's declaration, defendant offered declarations by three other jurors. All of them confirmed Brown's account to some extent, and none contradicted it. Silverman himself declared that after Juror Hobson opined that gates should have been present, "I indicated to Mr. Hobson that the sensors which operated crossing gates would make it impractical to have gates at the location of the accident, because they would be triggered all day long." Silverman also stated that he did not recall who had first used the term "sensors" in the deliberations, but that the "discussion" of them had lasted "five minutes at the most." Juror Janice Moore similarly declared that Silverman had "explained that sensors at that location would be triggering all day and it would not make sense to have them there. The entire issue of sensors was only discussed for approximately three to four minutes during the jury deliberations." Foreperson Michael Weidlein also declared that sensors had been *738 discussed for a few minutes in relation to the use of crossing gates.
The trial court denied the motions for new trial and judgment notwithstanding the verdict.
DISCUSSION
1. Jury Misconduct.
We consider first plaintiffs contention that the trial court abused its discretion in denying the motion for new trial on grounds of prejudicial jury misconduct. The misconduct asserted consisted of Juror Silverman's opining to the jury regarding the absence and feasibility of crossing arms or gates at the J-crossing.
As noted, the evidence of Juror Silverman's conduct was uncontradicted. Moreover, it was clearly admissible. All of the declaration testimony set forth above related statements and conduct occurring during deliberations, as distinguished from asserted or attempted proof of the mental processes of the jury. (Evid.Code, § 1150, subd. (a).)
Presentation to or reception by a jury of new evidence from sources outside the trial evidence constitutes misconduct. (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 338, pp. 382-383, and cases there cited.) This includes expert opinions about issues in the case that are not based on the evidence. As the Supreme Court has explained, "It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors' views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror's own claim to expertise or specialized knowledge of a matter at issue is misconduct." (In re Malone (1996) 12 Cal.4th 935, 963, 50 Cal. Rptr.2d 281, 911 P.2d 468.)
Juror Silverman's comments to the jury, in the nature of an expert opinion concerning the placement of crossing gate "sensors," their operation, and the consequent reason why gates had not been or could not be installed at the J-crossing, constituted misconduct under the foregoing rules. Speaking with the authority of a professional transportation consultant, Silverman interjected the subject of "sensors," on which there had been no evidence at trial. He also expounded, and apparently illustrated with a diagram, his opinions about where such sensors would be placed to operate crossing gates for the J-crossing, how yard operations would activate those sensors, and consequently that gates would be infeasible to protect the crossing because they would continually block it.
This exposition went far beyond the evidence in the case. Silverman contradicted the testimony of defendant's own trainmaster, Earls, with respect to the frequency with which crossing gates would have been lowered, and also offered a rationale for the absence of gates, which Earls had been unable to provide. (Cf. Wagner v. Doulton (1980) 112 Cal.App.3d 945, 947, 949-951, 169 Cal.Rptr. 550 [not misconduct for engineer juror to draw diagram of accident location based solely on his impression of the testimony].) Silverman's opinion not only derived from sources outside the evidence, but also rebutted a significant element of plaintiffs proof, which was otherwise undisputed. It was clearly misconduct. (In re Malone, supra, 12 Cal.4th at p. 963, 50 Cal.Rptr.2d 281, 911 P.2d 468; see Wagner, supra, at pp. 949-950, 169 Cal.Rptr. 550.)
Defendant contends that Silverman's statements should be considered permissible inasmuch as "plaintiff never presented evidence to support his crossing gates argument," instead leaving its determination to the jury's common experience. This is an inaccurate characterization. First, plaintiff did present evidence that his workplace involved a crossing at which there were no gates, and which he was instead required to "protect" by placing himself on the tracks in his truck. Moreover, plaintiff presented specific evidence, through Earls, about the very point that Silverman later rebutted, namely the frequency with which crossing gates would have to operate had they been present at the J-crossing, *739 and thus the practicality of that alternative. No more was required for the jury to reach a conclusion of negligence by failure to provide a safe work place.[8]
Furthermore, contrary to defendant's implication, Silverman's statements were not matters of common experience. They involved his own opinions about where "sensors" for the J-crossing gates would be placed and how the traffic in the yard would cause them to operate. The trial evidence about the operation of gates was limited to Earls's testimony as to the frequency with which they would be lowered. It made no reference to "sensors" (or other means of control) or their placement. Silverman's embellishment of this state of the evidence brought to bear not common knowledge but purported expert (and ex parte) rebuttal.
Defendant also cites Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 742, 223 Cal.Rptr. 859, in which the court termed it "inappropriate" for the defendant to complain about a juror's having disclosed her own pain and suffering during deliberations, when the defendant had not sought on voir dire to eliminate jurors with such experiences. Defendant suggests that having accepted Silverman as a juror with knowledge of his background, plaintiff should not be heard to complain of his use of it in deliberations. We find the analogy unacceptable. Plaintiff did explore Silverman's background on voir dire, but his answers neither disclosed nor intimated that he would later be moved to interject opinions based on sources outside the trial evidence, in contradiction of it. (Cf. Smith v. Covell (1980) 100 Cal.App.3d 947, 952, 161 Cal.Rptr. 377.)[9] Although voir dire is the primary vehicle for searching out bias in prospective jurors, it cannot clairvoyantly anticipate misconduct.
The remaining question is whether the misconduct was prejudicial, so as to have required a grant of a new trial. "Whether prejudice arose from juror misconduct ... is a mixed question of law and fact subject to an appellate court's independent determination. [Citations.]" (People v. Nesler (1997) 16 Cal.4th 561, 582, 66 Cal.Rptr.2d 454, 941 P.2d 87.) A showing of misconduct creates a presumption of prejudice, which in turn "may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct. [Citations.] Some of the factors to be considered when determining whether the presumption is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417, 185 Cal.Rptr. 654, 650 P.2d 1171, fn. omitted.)
More recently, the Supreme Court has stated that in criminal cases reversal is required "[w]hen the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant's detriment." (People v. Marshall (1990) 50 Cal.3d 907, 951, 269 Cal.Rptr. 269, 790 P.2d 676; accord, In re Malone, supra, 12 Cal.4th at p. 964, 50 Cal.Rptr.2d 281, 911 P.2d 468.) The test is an objective one, calling for inquiry as to whether the misconduct "`is inherently likely to have influenced the juror.'" (People v. Marshall, supra, at p. 951, 269 Cal.Rptr. 269, 790 P.2d 676.) This analysis of prejudice "is different from, and indeed less tolerant than," normal harmless error analysis, because jury misconduct threatens the structural integrity of the trial. (Ibid.) Although stated in criminal cases, this rationale applies to civil cases as well, because civil litigants too are constitutionally entitled to a fair trial before an unbiased jury. (Province v. Center for Women's Health & Family Birth (1993) 20 Cal. App.4th 1673, 1679, 25 Cal.Rptr.2d 667, disapproved on another point in Heller v. Norcal *740 Mutual Ins. Co. (1994) 8 Cal.4th 30, 41, 32 Cal.Rptr.2d 200, 876 P.2d 999; Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 322, 276 Cal.Rptr. 430.) Moreover, a substantial likelihood that one juror was adversely affected would also require reversal in a civil case, like the present one, in which the verdict was 9-3. (See Province, supra, at p. 1680, 25 Cal.Rptr.2d 667; Glage, supra, at p. 323, fn. 5, 276 Cal.Rptr. 430.)
We have previously reviewed the evidence of misconduct in this case. It is clear and undisputed. Moreover, we cannot agree with defendant's characterization of the episode as "trivial." Juror Silverman's exposition and demonstration may have been relatively brief, but they directly contradicted the trial evidence concerning a significant element of plaintiffs theory of unsafe workplace: the feasibility of crossing arms at the J-crossing. The thrust of Silverman's illustrated remarks, as attested to by himself as well as other jurors, was that plaintiffs theory of how due care could have made his workplace safer was extrinsically unrealistic, impractical, and worthy of dismissal.
Defendant contends that the misconduct could not have harmed plaintiff because this theory was unsupported by evidence. The premise of the argument remains inaccurate. (See fn. 8, ante.) Defendant further argues that because, according to Juror Brown's declaration, the jurors had already tentatively aligned 9-3 in defendant's favor when Juror Silverman addressed them, it is unlikely that his comments had any impact. We cannot be so confident. In the first place, Brown's declaration was ambiguous as to the sequence and firmness of the jury's divisions in relation to when Silverman spoke. In any event, as described Silverman's remarks were strong and pertinent. They inherently carried a substantial probability of impact and influence. (See People v. Marshall, supra, 50 Cal.3d at p. 951, 269 Cal.Rptr. 269, 790 P.2d 676.)
We conclude that the presumption of prejudice has not been rebutted. The misconduct was clear and severe, and it directly devalued the otherwise undisputed evidence on a significant aspect of plaintiffs theory of the case regarding an unsafe workplace. In light of the entire record, as well as the closeness of the verdict, we believe that there is a substantial likelihood that plaintiff was thereby harmed. (See People v. Marshall, supra, 50 Cal.3d at pp. 950-951, 269 Cal.Rptr. 269, 790 P.2d 676; Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417, 185 Cal.Rptr. 654, 650 P.2d 1171.) The trial court should have granted plaintiffs motion for new trial on grounds of jury misconduct.
2. The Motion for Judgment Notwithstanding the Verdict.[***]
DISPOSITION
The judgment is reversed. The order denying motion for judgment notwithstanding the verdict is affirmed-Plaintiff shall recover costs.
BOREN, P.J., and NOTT, J., concur.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part 2 of the Discussion.
[**] Judge of the superior court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] The notice of appeal also refers to the order denying plaintiff's motion for new trial. Although reviewable on appeal from the judgment, that order is not independently appealable.
[2] According to Fitzgerald, plaintiff in essence stated, "I'm at `J' crossing. We're protected. We're shoving 812 ... shove."
[3] Fitzgerald did not become aware of the crash until a yard operator radioed him to stop.
[4] Under the FELA, liability is established if the employer's negligence played any part in causing the employee's injury. (See Waller v. Southern Pacific Co. (1967) 66 Cal.2d 201, 212-213, 57 Cal.Rptr. 353, 424 P.2d 937.)
[5] In addition, plaintiff contended that defendant had provided unsafe equipment, namely the truck and the radio, and that Fitzgerald and Brown had shoved the cars in violation of several provisions of defendant's General Code of Operating Rules. We review the evidence regarding these contentions in our discussion of plaintiff's appeal from the denial of judgment notwithstanding the verdict.
[6] Earls testified that the same would be true for flashing signals, or a combination of gates and signals.
[7] Counsel argued in part: "Better yet, where are the crossing arms? Remember the testimony from the train master, Mr. Earls? Ten to 18 trains over a 24 hour period. Less than one time per hour in a given workday. Less than one time per hour. If they had crossing gates here with those, those crossing gates would have to come down less than one time an hour on the average.... [¶] ... How about that? Then Mr. McDonald wouldn't have to be sitting on the tracks. He could be on the point. He can be riding the point [the front of the railcars]."
[8] It is apparently defendant's view that plaintiff could not establish negligence in failing to maintain crossing gates at the J-crossing without expert testimony regarding their necessity, appropriateness, or efficacity there. That is not so. As the jury was instructed, in this case the issue of negligence was one of ordinary care by a reasonable person. That determination could be made by reference to the facts and circumstances of the situation.
[9] The court in Moore, supra also stated that its own conclusion "would of course be different had the foreperson on voir dire denied any personal feelings relative to this issue." (178 Cal. App.3d at p. 742, 223 Cal.Rptr. 859.)
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262631/ | 84 Cal.Rptr.2d 510 (1999)
71 Cal.App.4th 1380
Mitchell A. MAJOR et al., Plaintiffs and Appellants,
v.
MEMORIAL HOSPITALS ASSOCIATION et al., Defendants and Appellants;
Gould Medical Foundation et al., Defendants and Respondents.
No. F022775.
Court of Appeal, Fifth District.
May 3, 1999.
Review Denied July 28, 1999.
*512 Strauss, Neibauer, Anderson & Ramirez and Mina L. Ramirez, Modesto, for Mitchell A. Major, Plaintiff and Appellant.
Robert N. Meals, Seattle, WA, for George Maurice Turner and Douglas E. Freeman, Plaintiffs and Appellants.
Hassard Bonnington and David E. Willett, San Francisco, for American Society of Anesthesiologists as Amici Curiae on behalf of Plaintiffs and Appellants.
Catherine I. Hanson and Kimberly S. Davenport, San Francisco, for California Medical Association as Amicus Curiae on behalf of Plaintiffs and Appellants.
Sagaser, Hansen, Franson & Jamison, Daniel O. Jamison, Fresno, and Kristi R. Culver, for Memorial Hospitals Association, William K. Piche and Marcus Shouse, Defendants and Appellants.
Trimbur, Davis & Clark and Gary S. Davis, Modesto, for Marcus Shouse, Defendant and Appellant.
Schuering, Zimmerman & Scully, Leo H. Schuering, Jr. and Lawrence S. Giardina, Sacramento, for Gould Medical Foundation and The Gould Medical Group, Inc., Defendants and Respondents.
McDonough, Holland & Allen, Ann O'Connell and Mary Powers Antoine, Sacramento, for California Healthcare Association as Amicus Curiae on behalf of Defendant and Appellant Memorial Hospitals Association and Defendants and Respondents Gould Medical Foundation and the Gould Medical Group, Inc.
Certified for Partial Publication.[*]
OPINION
WISEMAN, J.
When considering quality hospital care, three main interest groups generally come to mind: patients, physicians, and hospital administration. No one could seriously question that the primary goal of physicians and hospital administration is to provide quality medical care. Even so, that does not prevent disputes from arising between these groups, and even within an individual group. Such was the case here, where various problems ultimately led to Memorial Hospitals' decision to change its anesthesiology department from an open staff system to a closed system with an exclusive provider.
The rub occurred when the new exclusive provider did not offer subcontracts to the three plaintiff physicians, all former members of the anesthesiology department's open staff. Plaintiffs sued based on multiple theories, including alleged violations of the Unruh Civil Rights Act (Civ. Code, § 51), breach of contract, civil conspiracy, and tortious interference with plaintiffs' professional business relationships. Plaintiffs lost on all counts during a lengthy court trial, and this appeal followed. We affirm.
*513 In the published portions of this opinion, we clarify our holding in Mateo-Woodburn v. Fresno Community Hospital & Medical Center (1990) 221 Cal.App.3d 1169, 270 Cal. Rptr. 894 (Mateo-Woodburn). In doing so, we reject any inference that a hospital has a legal obligation to offer an incumbent physician a position in a closed department as a precondition to finding a closure decision is quasi-legislative rather than adjudicative. We also reject plaintiffs' claim challenging the exclusive provider's selection of subcontractors.
In the unpublished portions, we address plaintiffs' remaining claims, including the alleged violation of the Unruh Civil Rights Act, and find there was substantial evidence of compliance with the medical staff bylaws.
PROCEDURAL HISTORY
On July 31, 1992, Dr. George M. Turner filed suit against Memorial Hospitals Association, dba Memorial Hospital/Medical Center Modesto and Memorial Hospital Ceres (collectively Memorial Hospitals), William K. Piche, Gould Medical Foundation, Drs. Kenneth Imanaka, Daniel E. Sucha, Douglas Diehl, Larry Todd, Bruce Gesson, and Does 1 through 30 (defendants). The complaint alleged seven causes of action: (1) violation of the Unruh Civil Rights Act; (2) injunctive relief to prevent interference with the right to practice a profession; (3) restraint of trade; (4) tortious interference with plaintiffs professional business relationships; (5) breach of contract; (6) defamation; and (7) civil conspiracy. On the same date, Drs. Douglas Freeman and Mitchell Major filed an identical complaint against the same defendants. Both complaints were subsequently amended to add Dr. Marcus Shouse and Gould Medical Group, Inc.[1] as defendants.
On September 30, 1992, the trial court denied plaintiffs request for a preliminary injunction, and on October 22, 1992, the two actions were consolidated for all purposes. On September 28, 1993, the court granted defendants' motion for summary adjudication with respect to the third cause of action, restraint of trade. Trial began on November 11, 1993, and the parties waived trial by jury. On the third day of trial, Dr. Gesson was dismissed as a defendant. On February 7, 1994, the trial court granted the defendants' motion for judgment under Code of Civil Procedure section 631.8 in favor of Drs. Diehl, Todd, and Sucha.
After posttrial briefing and argument, the court entered judgment in favor of defendants on all remaining causes of action. The court subsequently denied defendants' motion for attorney fees. Plaintiffs filed a timely appeal raising seven contentions: (1) the trial court erred when it found there was no violation of the Unruh Civil Rights Act; (2) the trial court erred in concluding the plaintiffs waived any objection to the procedure used by Memorial Hospitals to close the anesthesiology department; (3) the trial court erred when it found the decision to close the anesthesiology department was not directed at a particular physician or group of physicians; (4) the trial court erred in holding the process of closing the anesthesiology department was not arbitrary, capricious, contrary to established public policy or procedurally unfair; (5) the trial court erred in not considering the closure of the anesthesiology department as an "integrated whole"; (6) the process used to close the anesthesiology department did not comply with the provisions of the medical staff bylaws; and (7) Memorial Hospitals had a legal obligation to ensure plaintiffs were offered a subcontract to work in the closed department. Memorial Hospitals filed a cross-appeal claiming the trial court abused its discretion in denying its motion for attorney fees.
FACTUAL HISTORY
During all relevant times, Memorial Hospitals was a nonprofit, private organization. It operated two hospitals in Stanislaus County, with its main facility in Modesto, and a smaller hospital in Ceres. The active medical staff of Memorial Hospitals consisted of 32 different subspecialties and was very involved *514 in trauma, cardiac, orthopedic and general surgery. Memorial Hospitals had a chief executive officer as well as a board of directors made up primarily of lay people. The active medical staff was divided into 11 clinical departments, one of which was anesthesiology. Each department had a chairperson who served a two-year term and whose responsibilities included administration of the department, enforcement of the medical staff bylaws, and monitoring the quality of patient care.
The medical staff of Memorial Hospitals was governed by the provisions of the medical staff bylaws which provided "the professional and legal structure for Medical Staff operations, organized Medical Staff relations with the Board of Directors, and relations with applicants to and members of the Medical Staff." These bylaws provided for the creation of a number of committees, one of which was the medical executive committee (MEC). The MEC was composed of the officers of the medical staff and the department chairpersons. The MEC's responsibilities included making recommendations to Memorial Hospitals' board of directors, evaluating the medical care rendered to patients, as well as reviewing the qualifications, credentials and professional competence of medical staff members. The MEC was authorized to represent and act on behalf of the medical staff in the intervals between medical staff meetings. Another committee of the Memorial Hospitals' medical staff was the quality assessment committee (QAC). The QAC was responsible for identifying potential problems in patient care, referring the problems to the appropriate department for assessment and corrective action, and monitoring the results of quality assessment throughout the hospitals.
As a general rule, a physician was not entitled to exercise clinical privileges at the hospitals operated by Memorial Hospitals unless he or she had received appointment to the medical staff. Initial appointment was for no more than two years and was subject to a biennial review on the date of the physician's medical license renewal date. Once appointed to the medical staff, a physician was entitled to a hearing before his or her appointment or clinical privileges could be revoked, terminated or suspended. Article VII of the medical staff bylaws established the procedures required for such a hearing, including a mechanism for appealing any adverse decision. However, section 7.6-l(b) of the medical bylaws specifically exempted from the hearing requirements of Article VII: "[T]he termination of privileges following the decision determined to be appropriate by the Medical Staff to close a department/service pursuant to an exclusive contract ...."
Section 7.6-1 of the medical staff bylaws also provided for participation of the MEC in any decision to close a department in the hospitals:
"A decision by the Board of Directors to close or continue closure of a department/service pursuant to an exclusive contract shall not be made until a review by the Medical Executive Committee of the related quality of care issues pursuant to Section 13.10 and a recommendation of appropriateness of the closure, or continued closure as set forth below. The Board of Directors shall ratify the Medical Executive Committee's recommendation unless the Board of Directors makes specific written findings that the Medical Executive Committee's recommendation is arbitrary, capricious, anti-competitive, an abuse of discretion, not compatible with the Association's mission, goals and objectives, or otherwise not in accordance with the law."
Section 13.10 specifically provided for involvement of the medical staff in any decision to close a department:
"The Medical Staff shall review and make recommendations to the Board of Directors regarding quality of care issues related to exclusive arrangements for Physician and/or professional services, prior to any decision being made, in the following situations: a) the decision to execute an exclusive contract in a previously open department or service; b) the decision to renew or modify an exclusive contract in a particular department or service; c) the decision to terminate an exclusive contract in a particular department or service."
*515 Memorial Hospitals' medical staff of approximately 500 physicians included approximately 100 who were affiliated with Gould. Gould was a California corporation which provided professional medical services and accounted for approximately 50 percent of the patient load and dollar volume at Memorial Hospitals. The physicians on the medical staff of Memorial Hospitals who were not affiliated with Gould were referred to as "independent." In September 1985, Gould formed its own anesthesiology department, and thus the anesthesiology department of Memorial Hospitals included both Gould and independent anesthesiologists. As a general rule, the independent anesthesiologists provided services for the independent surgeons and the Gould anesthesiologists provided services for the Gould surgeons, each group making their own schedule and functioning autonomously. However, occasionally the independent anesthesiologists would cover for their Gould counterparts and vice versa. This is commonly referred to as an "open" staff.[2]
Drs. Major and Turner joined the medical staff of Memorial Hospitals as independent anesthesiologists in 1986, and Dr. Freeman joined as an independent in 1988. When Dr. Freeman became a member of the medical staff, there were five Gould anesthesiologists in the department: Drs. Imanaka, Sucha, Gesson, Todd, and Vanderwalker.
As early as May 1986, there were documented problems with the operation of the anesthesiology department of Memorial Hospitals. At a meeting of the department on May 12, 1986, an incident involving the failure of an anesthesiologist to respond appropriately to a scheduled emergency surgery was discussed. Over the next five years, there were numerous other documented incidents of anesthesiologists not responding in a timely manner. These included one time when an anesthesiologist failed to appear for a scheduled Cesarean section; a delay in obtaining an anesthesiologist for a patient with severe head trauma; and delays in scheduled surgery at the Ceres hospital due to lack of an anesthesiologist. Additionally, there were numerous incidents of difficulty in locating anesthesiologists who were on call. The delays in obtaining an anesthesiologist for cesarean sections resulted in Memorial Hospitals not meeting the national standards for those deliveries.
There were also numerous documented incidents of problems with scheduling anesthesiologists. There were allegations made by both Gould and independent anesthesiologists that other anesthesiologists were manipulating the schedule for financial reasons. There were incidents of conflict between anesthesiologists' schedules, and miscommunication of scheduled vacations that resulted in gaps in coverage of scheduled surgeries. Drs. Major and Freeman were upset about often having to cover for Dr. Turner because he lived in Oakland.
Contributing to the scheduling problem was an insufficient number of independent anesthesiologists to cover all the surgery scheduled at both Memorial Hospitals' facilities. For example, at one point Dr. Major said he could not continue surgery because he was beginning to hallucinate due to fatigue. The shortage of anesthesiologists also resulted in the inability of the department to fill the OB/GYN department's request for epidural anesthesia services except on a case-by-case basis. The independent anesthesiologists claimed to have made efforts to recruit additional physicians beginning in January 1990. However, although on one or two occasions a new anesthesiologist would work for a short period of time, none of them stayed on a permanent basis. Additionally, some temporary anesthesiologists did not have acceptable credentials. One "locum tenens"[3] recruited by an independent anesthesiologist *516 did not have his drug license because of prior incidents of drug abuse. The problems resulting from a shortage of anesthesiologists were also exacerbated because some of those who were available, including Drs. Major, Turner, and at least two Gould anesthesiologists, declined to provide anesthesia services for cardiac surgery.
The conflicts in scheduling often resulted in anesthesiologists being late for scheduled surgery, and one time Dr. Freeman did not show for a scheduled case because he was too tired to continue. Between 1986 and 1991, the problems of obtaining anesthesia services at Memorial Hospitals' facilities was discussed not only in meetings of the anesthesiology department, but also in meetings of the OB/GYN department, the orthopedic department, the QAC,-and MEC.
Beginning in 1988, there was a long history of problems with narcotics accountability and documentation in the anesthesiology department. These problems were discussed at various staff meetings between August 1989 and March 1990. A new narcotics documentation procedure was implemented in April 1990, but problems with accountability and documentation of controlled drugs persisted into September 1990.
The minutes of the MEC meeting on October 23, 1990, indicate the narcotics documentation problem had been resolved. However, on June 28, 1991, the anesthesiology department was informed that some anesthesiologists were still not filling out the narcotics documentation correctly. Michael Spencer, the pharmacy director at Memorial Hospitals, stated that it took Dr. Freeman four to six months to comply with the new procedures, and Dr. Turner never did fully comply. In addition, a survey of the anesthesia carts conducted on November 6, 1991, found many of them unlocked and medication vials and/or syringes on the carts or in open drawers. A similar survey on January 24, 1992, revealed continuing problems with security and cleanliness of the anesthesia carts.
The failure to adequately document and account for narcotics was a serious problem for Memorial Hospitals. Failure to adequately account for narcotics posed a danger that they could be diverted and misused. In fact, there was an operating room (OR) nurse at Memorial Hospitals who was taking unused narcotics from the anesthesia carts and using them. In addition, failure to adequately account for controlled substances could result in the hospital losing its accreditation.
There was considerable evidence of other problems in the anesthesiology department. At a meeting of the orthopedic department in October 1986, concern was voiced about an anesthesiologist entering the OR in street clothes. Dr. Turner's clinical privileges were suspended in 1989 and 1991, when he allowed his Drug Enforcement Agency (DEA) drug certificate to lapse. In 1989, there were problems with anesthesia administered to 2 patients, ages 69 and 10.
The anesthesiology department was also dilatory in responding to requests to review issues referred by the QAC. On June 16, 1990, the QAC sent a letter to the anesthesiology department requesting that it respond with a plan to address six reviews in Dr. Turner's file regarding delays in providing anesthesia, and personality conflicts. The department did not respond until October 2, 1990. It stated Dr. Turner had been counseled on an incident when he responded to a call with alcohol on his breath, and the personality conflicts he was having with other staff members. In March 1991, the QAC discussed the fact the anesthesiology department was delinquent in reviewing charts referred to it. On April 7, 1992, the QAC sent a letter to the anesthesiology department requesting a response to a March 5th inquiry concerning action taken by the department on three case reviews in Dr. Turner's file regarding quality of care and physician misconduct. The department responded on April 13th, stating Dr. Turner was counseled on personality conflicts and indicating the department would continue to monitor his behavior for any further episodes.
There were numerous other claims of misfeasance and malfeasance on the part of anesthesiologists, including one incident where poor communication between an anesthesiologist and a surgeon resulted in surgery being performed on the wrong hip of a patient. *517 Dr. Imanaka was critical of Dr. Major's behavior, which included playing guitar in OR and inattention to patients. It was alleged by both physicians and nurses that Dr. Major spent an inordinate amount of time on the telephone in OR tending to his commodities trading. Dr. Major allegedly installed a coffeemaker on his anesthesia cart and brought it into the OR, in violation of health and safety regulations. He was also observed in the OR to mix liquid diet drinks on his cart. David Benn, Chief Operating Officer of Memorial Hospitals, received complaints about the anesthesia department from Orthopedics, Emergency Medicine, OB/GYN, the trauma committee, and the QAC.
In addition to the other problems in the anesthesiology department, there were persistent difficulties with communication and personality conflicts within the department and with other medical staff members. As early as September 1989, Dr. Turner stated at a meeting of the anesthesiology department that he would discontinue giving anesthetic care for a particular surgeon with whom he had a conflict. There were requests by surgeons to not be assigned particular anesthesiologistsboth independent and Gould. Due to the severity of the problem, on December 11, 1990, Dr. Salahuddin Bibi, the chief of staff, sent a letter to the anesthesiology department advising them of the need to resolve the conflicts they were having with surgeons at Memorial Hospitals. However, the problems continued, with Dr. Turner reporting to the department on July 26, 1991, of two incidents of personality conflicts with a surgeon.
The personality conflicts were not confined to the anesthesiologists' relationship with the surgeons at Memorial Hospitals. They also had serious personality conflicts among themselves. For a long period while Dr. Major was chairman of the department, he and Dr. Turner would not speak to each other. Dr. Major complained repeatedly to Benn about Dr. Turner, stating he believed Dr. Turner abused drugs and came to work with alcohol on his breath. There was one incident reported where Dr. Turner argued with Dr. Major over helping a child who had just come out of surgery, was having trouble breathing, and was turning blue. Dr. Turner reportedly elbowed Dr. Major out of the way, claiming the child was his patient. As a result, Dr. Major refused to ever cover any of Dr. Turner's patients. Dr. Turner told a nurse he believed Dr. Major was making crank calls to him and on one occasion had placed a gasoline soaked rag under the hood of Dr. Turner's car.
There was also an incident when Dr. Turner and Dr. Freeman were arguing in the presence of a patient who was awake, lying on a gurney. As a result, Dr. Bibi sent another letter to the anesthesiology department warning that any similar situations in the future would be dealt with by the MEC and board of directors. In October 1991, Dr. Freeman had a conflict with Dr. Imanaka over a patient, which resulted in a discussion at an anesthesiology department meeting of the need for cooperation between the independent and Gould anesthesiologists. Dr. Turner often had conflicts with nurses, would shout at them, and at least one time in March 1992, physically struck a nurse.
On May 14, 1990, the anesthesiology department was notified the MEC had formed an ad hoc committee to address complaints by surgeons about the department, including quality, personality conflicts and the availability of anesthesia services. The members of the department were also informed the MEC had recommended an outside anesthesiologist be commissioned to review their charts. The members of the ad hoc committee were Dr. Marcus Shouse, medical director of the emergency department, Dr. Mary Ann Piskun, a Gould surgeon, and Dr. Phillip Deos, a pathologist. After the ad hoc committee was formed, Dr. Bibi contacted Dr. Maher Abadir, an anesthesiologist, and asked him to review the delivery of anesthesia at Memorial Hospitals.
Dr. Abadir was asked to conduct a review of the entire department. He was also told Memorial Hospitals wanted a neutral opinion on the quality of anesthesia services at its facilities. When he first arrived to conduct the review, Dr. Abadir was only given three charts: two pertained to cases of Dr. Major; and one to a case of Dr. Turner. Dr. Abadir requested 50 charts selected randomly for *518 each physician. After reviewing them, Dr. Abadir prepared a report which he addressed to Dr. Bibi. However, the only person who recalled ever seeing Dr. Abadir's written report was Dr. Shouse. Dr. Abadir did not keep a copy, Dr. Shouse could not find his, and at the time of trial a copy could not be located in Memorial Hospitals' files.
Dr. Abadir testified he recalled his report stated the rate of complications in the charts he reviewed was acceptable, and he did not remember saying anything about a high complication rate in young, healthy patients. Dr. Abadir recalled his report did indicate he identified two complications in cases involving young people. However, he testified he found these complications were acceptable. At one time Dr. Abadir had been a member of the California Society of Anesthesiologists (CSA), but was not sure if he was still a member when he conducted the review at Memorial Hospitals.
Dr. Shouse testified he recalled Dr. Abadir's report stated he had found a high complication rate in young, healthy patients. However, the report did not specifically identify Drs. Major and Turner as the anesthesiologists whose charts were reviewed, and did not single out either doctor for criticism. At a meeting of the ad hoc committee, it was reported that Dr. Abadir's review had found a higher than expected rate of complications in young, healthy patients, and that one of the doctors to whom this finding applied was Dr. Major. On July 24, 1990, Dr. Shouse reported to the MEC that an outside consultant performed a retrospective chart review and concluded there was a possible quality problem, particularly a high complication rate in young, healthy patients. It was noted that two unidentified anesthesiologists were found to have higher than acceptable rates of complication.
On August 8, 1990, Dr. Major requested all anesthesiologists in the department attend a meeting to discuss the potential impact of closure of the department. No one attended the meeting except him. On December 3, 1990, Dr. Bibi reported to the board of directors that the MEC had discussed whether the anesthesiology department should be open or closed. On March 20, 1991, Dr. Major sent a letter to William Piche, the chief executive officer of Memorial Hospital. He acknowledged the problems in the anesthesiology department, expressing frustration with his inability to solve them, and recommending closure of the department on a trial basis as a possible solution. Dr. Major felt the problems applied to both independent and Gould anesthesiologists. Although he was chairman of the department, Dr. Major had no authority to enforce any standards or rules. In fact, on one occasion when Dr. Major attempted to counsel an anesthesiologist, the doctor said to him: "What are you going to do? Fire me?"
On March 21, 1991, at an MEC meeting, Dr. Bibi voiced concern over problems in the anesthesiology department, including quality issues and inappropriate behavior. He reported that several attempts had been made to resolve disagreements within the department without success, and stated that a longterm resolution was needed. At this same meeting Carolyn Quick, vice president of nursing at Memorial Hospitals, presented a summary of problems in the anesthesia department of which she was aware. These included: Dr. Turner's problems with an OR nurse; his conflict and shouting match with a surgeon; Dr. Turner's argument with Dr. Freeman in the presence of an awake patient; Dr. Turner's failure to respond to a call for an immediate Cesarean section because he was in Oakland; Dr. Major's failure to respond to a call; Dr. Freeman's failure to show for a scheduled surgery because of a misunderstanding in the vacation schedule; Dr. Turner's failure to comply with the requirements of narcotics documentation; and the practice of the independent anesthesiologists to disparage each other in the presence of staff and patients creating tension in the OR staff to the point that some were considering resignation.
After the statements by Dr. Bibi and Carolyn Quick, Dr. Charles Stitt, an independent physician, stated he believed closure of the anesthesiology department would be beneficial. The minutes of this meeting indicate Dr. Edward Kody, another independent physician, recommended the administration of Memorial Hospitals look into closing the anesthesiology *519 department and develop a mechanism for the procedure. The motion was passed. At trial, Dr. Kody testified he did not believe his comment was a recommendation to close the department, only a suggestion that it be considered as one alternative to solving the problems that were being experienced. Dr. Joseph Skokan, a Gould physician and chief of staff-elect in March 1991, testified it was his impression that on March 21, 1991, the MEC voted to recommend closure of the anesthesiology department.
On March 22, 1991, at a staff meeting attended by Drs. Major, Freeman, and Turner, the anesthesiologists were informed the MEC had recommended Memorial Hospitals investigate the possibility of closing the department. On April 23, 1991, Benn briefed the new members of the MEC on events leading up to the closure recommendation. Benn informed the members of the MEC that the process would begin with a solicitation of requests for proposal (RFP). The minutes of this meeting reflect the MEC supported the proposal which would be referred to the board of directors. Dr. Skokan testified that although the MEC did not specifically recommend closure of the anesthesiology department on April 23d, the recommendation to begin the RFP process was tantamount to such a recommendation.
On April 25, 1991, at a meeting attended by Drs. Major and Freeman, Dr. Eugene Sucha, a Gould anesthesiologist and new chairman of the anesthesiology department, informed the anesthesiologists that the MEC had been discussing closure of the department and that RFPs would be available to interested doctors. On May 6, 1991, Benn reported to the board of directors that the MEC had requested the administration develop a mechanism for closure of the anesthesiology department. There was no formal action by the Board to approve issuance of an RFP and the Board did not instruct the administration to prepare and distribute one. On June 20, 1991, copies of the RFP were mailed to numerous individuals and entities including all the anesthesiologists in Stanislaus County.
On June 25, 1991, Benn reported to the MEC that RFPs had been mailed to interested parties. Benn stated that closure would apply to all anesthesiologists, without exception. On June 28, 1991, at a staff meeting attended by Drs. Major, Freeman, and Turner, the anesthesiologists were informed that RFPs had been mailed out. On September 9, 1991, the MEC appointed a subcommittee to evaluate the seven responses to the RFP that had been received. Among the members of the subcommittee were Drs. Skokan, Shouse, Piskun, and Stitt. One response was from Dr. Major. On September 27, 1991, at a staff meeting attended by Drs. Freeman and Turner, the anesthesiologists were informed that an RFP subcommittee had been appointed. On October 25, 1991, at a staff meeting attended by Drs. Major, Freeman, and Turner, the anesthesiologists were advised that seven responses to the RFP had been received by the subcommittee. They were also told the names of the subcommittee members.
On February 2, 1992, Benn informed the board of directors that the RFP subcommittee had met with three finalists, including Gould, Dr. Major and Premier Anesthesia. Benn reported the RFP subcommittee had been unable to resolve some problems and recommended the board establish another subcommittee to help conclude the process.
After interviewing all three candidates, the RFP subcommittee considered Gould the best candidate and entered into negotiations with it on the exact terms of the contract to provide anesthesia services to Memorial Hospitals. Gould's response to the RFP called for six Gould anesthesiologists and four independent anesthesiologists who would subcontract with Gould, but would be selected by Memorial Hospitals. Memorial Hospitals rejected this provision, insisting that Gould be responsible for selecting the independent anesthesiologists who would be offered subcontracts. The subcommittee kept the negotiations with Gould confidential and did not inform the medical staff of their progress.
On May 26, 1992, Dr. Shouse informed the MEC that the RFP subcommittee had determined Gould's proposal was in the best interest of the patients and the hospital. The minutes of this meeting indicate the MEC discussed that medical staff bylaws required *520 input from the MEC regarding quality of care issues prior to a decision to close the department. Questions were raised regarding whether the proposed contract adequately addressed quality of care. The MEC was informed the contract included a quality assessment process and that reports would be made to the MEC on a quarterly basis. However, a copy of the proposed contract was not presented to the MEC and the committee was not aware of its specific terms. The MEC unanimously approved a recommendation to award the contract to Gould. On May 29, 1992, the professional practices committee was informed of the MEC's recommendation to award an exclusive contract to Gould to provide anesthesia services to Memorial Hospitals. This committee unanimously endorsed awarding this contract.
On June 1, 1992, Benn informed the board of directors that the RFP subcommittee recommended award of the exclusive contract to provide anesthesia services to Gould. At this same meeting, Dr. Major made an alternative presentation to the board. He also presented a letter signed by approximately 50 surgeons supporting his proposal. Dr. Major was excused and the board discussed the contract, with Quick voicing her concern that Dr. Major's proposal would not resolve the problems in the anesthesiology department. The board unanimously approved the motion to award the contract to Gould.
On June 1, 1992, Dr. Imanaka was advised Memorial Hospitals had accepted Gould's proposal. Dr. Imanaka, identified in the Gould proposal as director of the anesthesiology department, then began putting together a subcommittee to select the independent anesthesiologists who would provide services under the contract. He sought not only anesthesiologists, but also surgeons to serve on his selection committee. Among those who agreed to serve were Dr. Shouse, Dr. Donn Fassero, a Gould surgeon, and Dr. Louis Cimino, an independent surgeon. The other members of the committee were all Gould anesthesiologists.
On July 1, 1992, Piche sent letters to Drs. Major, Freeman, and Turner advising them that Gould had been awarded the contract to provide anesthesia services for Memorial Hospitals, and effective August 1, 1992, the anesthesiology department would be operated on a closed staff basis. The letter further stated that Gould had formed a committee to select the independent anesthesiologists with whom it would subcontract and identified the members of that committee. Piche's letter advised plaintiffs to contact Dr. Imanaka for further information regarding the application process.
Also, on July 1, 1992, Memorial Hospitals signed a contract with Gould as the exclusive provider of anesthesia services for both its facilities. The contract provided that Gould could provide the required anesthesia services through its own members or through independent physicians with whom it subcontracted. The contract designated Dr. Imanaka as the director of the department. It required that any person who was to provide anesthesia services meet the requirements for membership in the medical staff of Memorial Hospitals and actually be admitted as a member. The contract established an initial requirement of ten anesthesiologists, six of whom were to be Gould providers, and four to be subcontracted providers. Gould was given the responsibility of providing the services required "by employment, contractual relationship, or other arrangement However, the physicians or certified nurse anesthetists (CRNA) selected by Gould were subject to approval by Memorial Hospitals.
Plaintiffs submitted applications to Gould for positions as independent anesthesiologists who would provide services to Memorial Hospitals. On July 8, 1992, Dr. Imanaka sent letters to all three plaintiffs informing them they had not been selected for one of the subcontracted positions. The committee did select five individuals, three of whom were coming directly out of residency in anesthesiology. One of the five selected, Dr. James Barnette, ultimately declined the offer. Subsequently, Gould allowed the final position to be shared by three anesthesiologists who provided anesthesia service to a group of surgeons specializing in cardiac surgery. On July 13, 1992, Piche informed the executive committee of the board of directors that the anesthesia contract had been executed, and Gould's selection committee had chosen six *521 anesthesiologists as subcontractors, not including Drs. Freeman, Turner and Major. On July 17, 1992, Piche sent letters to each of the plaintiffs informing them that if they were not under contract with Gould to provide anesthesia services for Memorial Hospitals, their anesthesia privileges would be terminated effective at midnight on July 31, 1992.
DISCUSSION
Any discussion of the issues raised by plaintiffs must be prefaced by a discussion of the general principles of law applicable to this case. The most important is the nature of plaintiffs' rights as physicians with staff privileges at Memorial Hospitals. In Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 140 Cal.Rptr. 442, 567 P.2d 1162, our Supreme Court held that a physician's hospital privileges constitute a property right.
"`Although the term "hospital privileges" connotes personal activity and personal rights may be incidentally involved in the exercise of these privileges, the essential nature of a qualified physician's right to use the facilities of a hospital is a property interest which directly relates to the pursuit of his livelihood.'" (Id. at p. 823, 140 Cal.Rptr. 442, 567 P.2d 1162.)
The court then held: "[T]he full rights of staff membership vest upon appointment, subject to divestment upon periodic review only after a showing of adequate cause for such divestment in a proceeding consistent with minimal due process requirements." (Id. at pp. 824-825, 140 Cal.Rptr. 442, 567 P.2d 1162.)
However, a key consideration in Anton's holding that a physician was entitled to minimal due process before termination of staff privileges was its determination that the action taken was adjudicative in nature. "The decision in question is clearly final and is adjudicatory rather than legislative in character." (Anton v. San Antonio Community Hosp., supra, 19 Cal.3d at p. 815, 140 Cal. Rptr. 442, 567 P.2d 1162.)
The distinction between an adjudicative decision and a legislative or quasi-legislative decision is critical in resolving plaintiffs' claim for two reasons. First, the requirement of a proceeding with minimal due process prior to termination of a physician's staff privileges is not applicable if it is the result of a quasi-legislative act by the hospital.
"If the action is legislative or quasi-legislative in nature, "'... a hearing of a judicial type is not required; a hearing allowed by legislative grace is not circumscribed by the restrictions applicable to judicial or quasi judicial adversary proceedings." `[Citation.] In a quasi-legislative proceeding there is no constitutional right to any hearing. [Citation.]" (Mateo-Woodburn, supra, 221 Cal.App.3d at p. 1183, 270 Cal.Rptr. 894; accord Centeno v. Roseville Community Hospital (1979) 107 Cal.App.3d 62, 71, 167 Cal.Rptr. 183; City of Santa Cruz v. Local Agency Formation Com. (1978) 76 Cal.App.3d 381, 388, 142 Cal.Rptr. 873 .)
A decision is considered quasi-legislative if it is one of general application intended to address an administrative problem as a whole and not directed at specific individuals. "Generally speaking, a legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts." (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 35, fn. 2, 112 Cal.Rptr. 805, 520 P.2d 29; accord Mateo-Woodburn, supra, 221 Cal.App.3d at p. 1184, 270 Cal.Rptr. 894; Redding v. St. Francis Medical Center (1989) 208 Cal.App.3d 98, 103-105, 255 Cal.Rptr. 806.)
Second, characterization of a decision as either adjudicative or quasi-legislative has a significant impact on the applicable standard of review. If the decision resulting in the deprivation of a physician's staff privileges is adjudicative, we review whether the physician was afforded due process. A claim that due process rights have been violated is reviewed de novo. (U.S. v. Hamilton (6th Cir.1997) 128 F.3d 996; U.S. v. Lloyd (6th Cir.1993) 10 F.3d 1197, 1216, cert. den. 513 U.S. 883, 115 S.Ct. 219, 130 L.Ed.2d 147; U.S. v. Hernandez (9th Cir.1991) 937 F.2d *522 1490, 1493; see State of Ohio v. Barron (1997) 52 Cal.App.4th 62, 67, 60 Cal.Rptr.2d 342 [constitutional issues are generally reviewed de novo].) On the other hand, if the decision is quasi-legislative, we apply a much more deferential standard of review.
"As to the quasi-legislative acts of administrative agencies, `judicial review is limited to an examination of the proceedings before the officer to determine whether his action has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether he has failed to follow the procedure and give the notices required by law.' [Citations.]" (Pitts v. Perluss (1962) 58 Cal.2d 824, 833, 27 Cal.Rptr. 19, 377 P.2d 83.)
This standard only requires that there be some reasonable basis for a decision in order to pass muster on review. "`If reasonable minds may well be divided as to the wisdom of an administrative board's action, its action is conclusive. Or, stated another way, if there appears to be some reasonable basis for the classification, a court will not substitute its judgment for that of the administrative body ....'" (Pitts v. Perluss, supra, 58 Cal.2d at p. 835, fn. 4, 27 Cal.Rptr. 19, 377 P.2d 83.) This standard is also applicable "to judicial review of rule-making or policy-making actions of a nonprofit hospital corporation." (Lewin v. St. Joseph Hospital of Orange (1978) 82 Cal. App.3d 368, 384, 146 Cal.Rptr. 892.)
Reduced to its essence, plaintiffs' argument is two-fold. First, they claim the hospital's decision to close the anesthesiology department was directed specifically at them. Therefore, the decision was adjudicative and they were entitled to due process in accordance with the medical staff bylaws prior to termination of their medical staff privileges. Second, even if the decision to close the department was quasi-legislative, it was arbitrary, capricious, and did not comply with the procedures set forth in the medical staff bylaws.
It is with the above concepts firmly in mind that we evaluate plaintiffs' contentions.
I.-II.[**]
HI. Adjudicative vs. quasi-legislative decision
We now examine the heart of this legal patient: whether the decision to revoke plaintiffs' staff privileges was adjudicative or quasi-legislative. As previously stated, plaintiffs contend Memorial Hospitals' decision to close the anesthesiology department was adjudicatory because it was directed toward the exclusion of a particular physician or group of physicians. In addition to his claim of discrimination under the Unruh Civil Rights Act, Dr. Turner contends the closing process was directed at him based on allegations of his behavior problems and clinical incompetence. Citing our decision in Mateo-Woodburn v. Fresno Community Hospital & Medical Center, supra, 221 Cal.App.3d 1169, 270 Cal.Rptr. 894, Dr. Turner argues a hospital's action is considered quasi-legislative when the action is "limited to eliminating organizational deficiencies or systemic quality of care concerns However, he contends that if the decision to close a department, "reflects on the character, competency or qualifications of any particular physician" it is reviewable as an adjudicatory decision.
Dr. Freeman echoes Dr. Turner's argument. He contends that in order for the closing of a hospital department to be quasi-legislative, not only must the action not be directed at a specific physician or group of physicians, but there must be nothing about the process which adversely reflects on the professional qualifications of the doctors affected. Dr. Freeman argues the circumstances of the closure of the anesthesiology department at Memorial Hospitals related to allegations of his incompetence, and therefore reflected adversely on his professional qualifications. Further, he claims the fact he was not offered one of the available subcontractor positions adversely reflected on his professional qualifications. Thus, he contends the decision to close the anesthesiology department was adjudicative in nature.
Dr. Major adopts the arguments made by Drs. Turner and Freeman.
*523 A. Standard of review
The trial court's findings concerning what factors, if any, were considered and motivated the decision to close the anesthesiology department are issues of fact which we review for substantial evidence. However, the court's conclusion regarding whether the action was adjudicatory or quasi-legislative is an issue of law which is reviewed de novo. (See Lewin v. St. Joseph Hospital of Orange, supra, 82 Cal.App.3d at p. 387, 146 Cal.Rptr. 892.)
B. Analysis
The trial court found the decision to close the anesthesiology department "was motivated by an honest, reasonable, and factually based concern about improving the overall functioning of the entire department and in improving employee morale.... In short, it was made to rid the Hospital of the undesirable effects of an open department and not directed specifically [at] excluding part of the plaintiffs." It then concluded: "The action to close the Department of Anesthesia was quasi-legislative, reasonable, rational, lawful, and in conformity with public policy. It was not arbitrary, capricious, or entirely lacking in evidentiary support."
Any analysis of this issue must begin with a recognition of the right of Memorial Hospitals to make a policy decision to close the anesthesiology department, even if it affects the clinical privileges of one or more physicians.
"Numerous cases recognize that the governing body of a hospital, private or public, may make a rational policy decision or adopt a rule of general application to the effect that a department under its jurisdiction shall be operated by the hospital itself through a contractual arrangement with one or more doctors to the exclusion of all other members of the medical staff except those who may be hired by the contracting doctor or doctors. [Citations.]" (Mateo-Woodburn, supra, 221 Cal.App.3d at p. 1183, 270 Cal.Rptr. 894.)
A decision is quasi-legislative in nature when it is not directed toward the exclusion of particular physicians, but "undertaken as a general effort to address an administrative problemproblems within the department of anesthesiology as a wholeaffecting other functions within the hospital and the overall quality of medical services." (Id. at p. 1184, 270 Cal.Rptr. 894.)
The right of a hospital to take quasi-legislative action regardless of the negative impact it may have on the staff privileges of a physician or group of physicians is justified because of the overriding concern for the quality of patient care.
"A hospital provides essential facilities to members of the medical community so that members of the medical community, in turn, can provide medical services to the community at large. An important public interest exists in preserving a hospital's ability to make managerial and policy determinations and to retain control over the general management of the hospital's business. A hospital is under an obligation to remedy any situation which threatens or jeopardizes patient care. [Citation.]" (Mateo-Woodburn, supra, 221 Cal.App.3d at pp. 1184-1185, 270 Cal.Rptr. 894.)
An objective consideration of the evidence leads to the inescapable conclusion that there was ample evidence of systemic problems in the anesthesiology department which affected the quality of medical services at Memorial Hospitals' facilities. For approximately five years prior to closure, the problems in the anesthesiology department had been the topic of discussion and concern at various meetings throughout the hospital. The difficulties in scheduling anesthesiologists, their failure to respond in a timely manner to requests for support, and the problems locating anesthesiologists who were on call were legion. These troubles were caused in part by the shortage of available anesthesiologists. However, despite the chronic nature of this shortage, the department seemed incapable of curing it. The evidence indicated this failure may have been the result of the existing anesthesiologists being unwilling to share their workload and associated income with additional physicians.[4]*524 This was true even though surgeries were being delayed because anesthesiologists were too fatigued to continue or complained of experiencing hallucinations.
The shortage of anesthesiologists also impacted the department's ability to provide services for other members of the medical staff, such as OB/GYN's longstanding request for epidural services. The delays in obtaining anesthesia services had reached the point that Memorial Hospitals was failing to meet the national standards for timely performance of Cesarean sections. Finally, the shortage was further exacerbated by the refusal of some anesthesiologists, both independent and Gould, to provide anesthesia services in cases of cardiac surgery. As a result, this workload disproportionately fell on the remaining anesthesiologists.
The members of the anesthesiology department had also demonstrated an inability to maintain professional relations between themselves and other members of the medical staff at Memorial Hospitals. They squabbled among themselves, refused to talk to one another, and had numerous personal conflicts with surgeons. Dr. Turner was even involved in physical altercations, including at least one occasion when he punched a nurse. The anesthesiologists' practice of airing their dissatisfaction with each other in the presence of other staff members and patients impacted morale to the extent that some of the OR staff considered resigning. The personality conflicts in the anesthesiology department were not limited to plaintiffs. There was evidence of conflicts between the independent and Gould anesthesiologists as well as between Gould anesthesiologists and other physicians.
The problems in the anesthesiology department were compounded by an absence of anyone with the authority to require the anesthesiologists to resolve their problems. The department was not a cohesive, integrated organization working toward a common goal. Rather, it was a loose association of independent contractors, divided into two separate factions, independents and Gould, who did not recognize any central authority over them. The problem attendant to this organization was obvious in the narcotics documentation problem the department experienced. The fact this problem existed is not as significant as the length of time it took to solve it, even though it jeopardized Memorial Hospitals' accreditation and posed a danger that narcotics would be diverted and misused. The lack of leadership also manifested itself in the department's failure to timely address and resolve quality of care issues involving anesthesiologists.
Considering the evidence, the question that comes to mind is not whether there were systemic problems in the anesthesiology department which would justify closure of the department, but why it took Memorial Hospitals as long as it did to make this decision. The department can most aptly be described as dysfunctional to the extent it jeopardized the overall quality of patient care at Memorial Hospitals.
It was the overall problems associated with the operation of the department that motivated the closure decision rather than an intent to specifically exclude plaintiffs. Undoubtedly, plaintiffs' conduct contributed to the systemic troubles of the department. However, the mere fact the overall problems considered in the closure decision included the individual difficulties plaintiffs created, does not mandate a finding that the decision was directed at them. It is axiomatic that the whole is the sum of its parts. A systemic problem is nothing more than the aggregation of a number of individual problems. Although plaintiffs' conduct accounted for a disproportionate share of the anesthesiology department's problem, it did not account for all of them. Additionally, Memorial Hospitals' decision to close the department was directed not just at solving the existing problems, but also to creating an organization capable of effectively dealing with similar issues in the future.
*525 Moreover, the committees which considered, recommended, and authorized closure of the department were focusing on the systemic and organization problems rather than on the exclusion of any particular physician or group of physicians. Undoubtedly, plaintiffs' names came up in the course of discussing the troubles within the department, but no one testified there was any discussion of excluding them as the objective of the closure. Rather, the evidence indicates the overriding concern was for the overall quality of care provided by the anesthesiology department and the fact the troubles it was experiencing seemed to be getting worse over time. In fact, Dr. Major had recommended that closure of the department should be considered as a means of solving the organizational and quality issues it was experiencing and which he had been unable to correct. Therefore, the evidence was sufficient to support the trial court's finding that the decision to close the department was not directed at excluding plaintiffs.
Plaintiffs argue that even if Memorial Hospitals' decision to close was not directed at them, it cannot be characterized as quasi-legislative if the hospital's decision is a de facto adverse reflection on their character, competency or qualifications. Plaintiffs contend Memorial Hospitals' decision to close the anesthesiology department, coupled with its failure to require Gould to offer them subcontracts which resulted in their replacement by other anesthesiologists, constituted such a de facto decision. Therefore, it must be adjudicatory in nature. Put simply, plaintiffs contend the fact they were deprived of their staff privileges as a result of Memorial Hospitals' decision to close the anesthesiology department is evidence that eliminating them was the purpose of the action.
Plaintiffs cite several cases which they claim support their argument, the primary one being our decision in Mateo-Woodburn, supra, 221 Cal.App.3d 1169, 270 Cal.Rptr. 894. Although Mateo-Woodburn involved facts very similar to those in plaintiffs' case, it does not stand for the proposition attributed to it by plaintiffs.
In Mateo-Woodburn, the defendant decided to change the system of delivery of anesthesia services at the hospital from an open staff to a inclosed system. (Mateo-Woodburn, supra, 221 Cal.App.3d at p. 1175, 270 Cal.Rptr. 894.) The decision was made because of problems the hospital was having with administration of the open staff system that presented a real risk to patients and affected the morale of the department and support staff. (Id. at pp. 1177-1178, 270 Cal.Rptr. 894.) Prior to making the final decision to go to a closed system, the hospital scheduled a noticed hearing at which physicians, including the plaintiff, were allowed to make comments. (Id. at pp. 1178-1179, 270 Cal.Rptr. 894.) After the hearing, the plaintiff made a counter-proposal to the board of trustees which was rejected. The board then decided the department would be closed upon appointment of a permanent director. (Id. at p. 1179, 270 Cal.Rptr. 894.)
After the director was appointed, all the anesthesiologists with privileges were notified that unless they entered into a contract with the director with whom defendant had a contract, they would not be permitted to practice in the hospital. The contract with the director provided that he was the exclusive provider of clinical anesthesiology services at the hospital; provided for the minimum qualifications of any physicians with whom he contracted; and reserved for the defendant the right to review and approve the form of any contract prior to execution. (Mateo-Woodburn, supra, 221 Cal.App.3d at pp. 1180-1181, 270 Cal.Rptr. 894.) Six anesthesiologists did not sign a contract with the new director. Five refused to do so, and one was not offered a contract, although he said he would not have signed the contract even if it had been offered. (Id. at p. 1181, 270 Cal.Rptr. 894.)
We held the decision of the defendant hospital was quasi-legislative in nature. "Here, the policy decision by FCH to go from an open to a closed system of delivery of anesthesia services was not irrational, arbitrary, contrary to public policy or procedurally unfair. The chronic problems existing in the department under the rotation system adversely affected the efficient delivery of anesthesia services to patients, lowered the quality *526 of patient care, and created a potential risk to patients which included the risk of paralysis and/or death. The defects, including the lack of leadership, control and discipline in the system, were patent. Contrary to plaintiffs' argument the hospital was not required to wait until serious consequences occurred before taking action." (Mateo-Woodburn, supra, 221 Cal.App.3d at p. 1184, 270 Cal.Rptr. 894.)
We explained the distinction between an adjudicatory and a quasi-legislative decision on the reputation of a physician.
"[W]here a doctor loses or does not attain staff privileges because of professional inadequacy or misconduct, the professional reputation of that doctor is at stake. In that circumstance, his or her ability to become a member of the staff at other hospitals is severely impaired. On the other hand, a doctor's elimination by reason of a departmental reorganization and his failure to sign a contract does not reflect upon the doctor's professional qualifications and should not affect his opportunities to obtain other employment." (Mateo-Woodburn v. Fresno Community Hospital & Medical Center, supra, 221 Cal.App.3d at p. 1185, 270 Cal.Rptr. 894.)
Plaintiffs claim the phrase "and his failure to sign a contract," in the Mateo-Woodburn decision indicates our holding was "premised upon the assumption that all doctors in the department will have the opportunity to stay on under the closed system, provided that a sufficient number of positions exist." Based on this assumption, plaintiffs conclude that if a hospital does not require the contractor to offer subcontracts to the incumbent physicians when a department is closed, it is a decision which de facto reflects on their character, competency or qualifications. Thus, coming full circle, the initial decision to close the department must be deemed to have been adjudicatory. We reject plaintiffs' exercise in circuitous logic for several reasons.
First, notwithstanding the phrase in Mateo-Woodburn, referring to the fact the plaintiffs' professional qualifications were not called into question when they refused to sign a subcontract offered to them, one of the plaintiffs there was not offered a subcontract. Our decision applied equally to him and to those physicians who were offered but declined a subcontract.
Second, there is nothing in Mateo-Woodburn to suggest that a hospital has a duty to offer a subcontract to incumbent physicians upon closure of a department as a precondition to finding the decision is quasi-legislative. To the contrary, the express language we used undermines plaintiffs' contention.
"Thus, the vested rights of a staff doctor in an adjudicatory one-on-one setting, wherein the doctor's professional or ethical qualifications for staff privileges is in question, take on a different quality and character when considered in light of a rational, justified policy decision by a hospital to reorganize the method of delivery of certain medical services, even though the structural change results in the exclusion of certain doctors from the operating rooms. If the justification is sufficient, the doctor's vested rights must give way to public and patient interest in improving the quality of medical services." (Mateo-Woodburn, supra, 221 Cal.App.3d at p. 1185, 270 Cal.Rptr. 894, italics added.)
Considering this language, it is difficult to understand how plaintiffs find support for their argument in Mateo-Woodburn. However, to the extent the decision could be read to require that subcontracts be offered to incumbent physicians as a precondition to finding the decision to close a department is quasi-legislative, we expressly reject that interpretation. Further, plaintiffs can find no support for their contention in any of the other cases which have considered the closure of a department in a hospital.
In Blank v. Palo Alto-Stanford (1965) 234 Cal.App.2d 377, 44 Cal.Rptr. 572, the defendant had an exclusive contract with a partnership of radiologists to provide radiological services for the hospital. The plaintiff was a physician and member of the hospital staff who was excluded from the facilities of the radiology department. The plaintiff brought suit seeking damages and injunctive relief. Following trial, the court found against the plaintiff. (Id. at pp. 379-382, 44 Cal.Rptr. *527 572.) In affirming the trial court, the appellate court focused on the justification for the action and noted that evidence of practice among hospitals is relevant to the issue. (Id. at p. 385, 44 Cal.Rptr. 572.) The court also recognized that a hospital may legitimately exclude some physicians from certain departments:
"Although it may be assumed that a public, and for purposes of this case, a private hospital may not unreasonably or arbitrarily exclude a physician otherwise qualified from membership on its staff it does not necessarily follow that it may not provide by regulation, or otherwise, that certain facilities shall be operated by the hospital itself to the exclusion of all members of the staff except those who may be coincidentally employed in such operation." (Id. at pp. 385-386, 44 Cal.Rptr. 572.)
Ultimately, the court concluded the evidence supported the findings of the trial court and that the radiology department was established as a closed staff system in a reasonable manner. "Any exclusion of appellant is not as a matter of law unreasonable or arbitrary, but is justifiable in view of the ends to be accomplished, nor can the contracts be attacked as illegal." (Id. at p. 394, 44 Cal.Rptr. 572.)
Plaintiffs claim Blank is distinguishable because there were not enough positions available in the closed radiology department to retain all the incumbents. Therefore, unlike their case, the closure of the department in Blank did not reflect adversely on the professional qualifications of the plaintiff who was excluded. This argument is specious. By selecting a physician other than the plaintiff, the hospital in Blank made a de facto decision concerning the relative merit of the two candidates just as assuredly as did Gould in selecting anesthesiologists other than plaintiffs. Further, there is nothing in Blank to suggest the court based its finding that closure was warranted on the fact that it did not reflect adversely on the plaintiff. To the contrary, the primary thrust is that closure was justified regardless of the negative impact it had on the physician who was excluded.
Similarly, in Letsch v. Northern San Diego County Hosp. Dist. (1966) 246 Cal.App.2d 673, 55 Cal.Rptr. 118, the defendant hospital had a contract with the plaintiff and another physician to act as the hospital's radiologists. The board of directors made a decision to close its radiology department and terminated its agreement with the plaintiff because it entered into an agreement with the other physician to be the hospital's sole radiologist. (Id. at p. 675, 55 Cal.Rptr. 118.) Relying on the reasoning in Blank v. Palo Alto-Stanford, supra, 234 Cal.App.2d 377, 44 Cal.Rptr. 572, on appeal the court found the defendant was entitled to operate its radiology department as a closed staff even though it excluded the plaintiff. The court summarily rejected the plaintiffs complaint that the closed staff operation unlawfully interfered with his right and that of his patients to select a radiologist of their own choosing. "The interference resulting from the closed staff operation of which [the plaintiff] complains is reasonable." (264 Cal.App.2d at p. 677, 70 Cal.Rptr. 472.)
Plaintiffs claim Letsch is also distinguishable because again there were insufficient positions available after closure of the department to offer positions to all the physicians. However, what is truly significant in Letsch is the fact plaintiff was not offered the option to be the sole radiologist providing services to the hospital when the radiology department was closed. Yet, the court had no trouble finding the closure decision was justified.
In Lewin v. St. Joseph Hospital of Orange, supra, 82 Cal.App.3d 368, 146 Cal.Rptr. 892, the court considered the rights of a physician to practice in a closed department. In Lewin, the defendant's dialysis unit was operated on a closed staff basis. The plaintiff requested the defendant grant him privileges in the dialysis unit. The defendant declined to do so and elected to maintain its closed staff system. The plaintiff was afforded a hearing on the issue and made a presentation to the defendant's executive committee of the medical staff association. The committee recommended maintaining the closed staff system, and the defendant's board of trustees approved *528 the recommendation. (Id. at pp. 376-380, 146 Cal.Rptr. 892.)
Plaintiffs correctly note Lewin is distinguishable from their case, since it did not involve a decision by the hospital to close a department, but rather a decision to maintain a closed department. However, the case is relevant for the court's broad statement concerning the right of a hospital to close a department in spite of the impact on the practicing physicians.
"[T]here can be no doubt that, because denial of staff membership may effectively impair a physician's right fully to practice his profession, neither a private nor public hospital may unreasonably or arbitrarily exclude a physician otherwise qualified from membership on its staff. [Citations.] However, it does not necessarily follow that the governing authority of a hospital may not make a policy decision or adopt a rule of general application that certain facilities shall be operated by the hospital itself through an arrangement with one or more physicians to the exclusion of all members of the staff except those who may be coincidentally employed in such operation. [Citation.] Indeed, in every case brought to our attention in which a hospital's operation of a facility on a `closed-staff basis was challenged, the decision of the governing authority of the hospital has been upheld. [Citations.]" (Lewin v. St. Joseph Hospital of Orange, supra, 82 Cal.App.3d at p. 391, 146 Cal. Rptr. 892.)
The court went on to note the decision to continue the closed staff dialysis unit was based on evidence this system would enhance patient care, reduce cost, and facilitate administration of the hospital. These considerations were "worthy objectives advancing important social interests," and in balance were sufficient to justify the interference with the plaintiffs ability to practice medicine resulting from the closed staff system. (Lewin v. St. Joseph Hospital of Orange, supra, 82 Cal.App.3d at p. 394, 146 Cal.Rptr. 892.)
The effect of closure of a department on the physicians involved was also considered in Centeno v. Roseville Community Hospital, supra, 107 Cal.App.3d 62, 167 Cal.Rptr. 183. In Centeno, the plaintiff was a partner in a group that was granted an exclusive contract to provide radiology services to defendant hospital. The plaintiff had a falling out with the other members of the partnership and left. The defendant then refused to permit the plaintiff to use its radiology facilities because it had an exclusive contract with the remaining partners. The plaintiff sued, claiming the hospital could not deny him privileges to use the radiology facilities. (Id. at p. 66, 167 Cal.Rptr. 183.) The trial court and Court of Appeal disagreed.
Plaintiffs contend Centeno is again distinguishable because the plaintiff in Centeno was excluded from the radiology department when he voluntarily left the group that had the exclusive contract with the hospital, rather than as the result of the hospital's decision to close the department. Therefore, plaintiffs argue there was nothing about the circumstances of the case which reflected adversely on the plaintiffs qualifications. However, again there is nothing in Centeno which suggests the outcome would have been different if the hospital's decision had met plaintiffs definition of adverse reflection on the professional qualifications of the excluded physician. To the contrary, the court quoted the broad language of Lewin v. St. Joseph Hospital of Orange, supra, 82 Cal.App.3d 368, 146 Cal.Rptr. 892, when it discussed the right of a hospital to close or maintain the closure of a department.
Finally, Redding v. St. Francis Medical Center, supra, 208 Cal.App.3d 98, 255 Cal. Rptr. 806, addressed the rights of physicians who lose their staff privileges as the result of the closure of a department in a hospital. In Redding, the defendant hospital was concerned about the quality of heart bypass surgery at its hospital because of an unacceptable high mortality rate and other problems very similar to those present in plaintiffs' case. As a result, the hospital decided to go from an open staffing system, to a closed program. The plaintiffs were surgeons who had performed bypass surgeries at the hospital with a very low mortality rate. The court noted "[t]he proposed change was openly discussed at St. Francis during early 1988." The decision to close the *529 department was made in June 1988. Both plaintiffs declined to be the surgeon in charge of the new closed department, and were subsequently notified they would no longer be able to perform bypass surgery at defendant's hospital. (Id. at pp. 101-103, 255 Cal.Rptr. 806.)
In upholding the trial court's determination that the defendant could close the heart bypass surgery department, the court first noted the decision in Anton v. San Antonio Community Hosp., supra, 19 Cal.3d 802, 140 Cal.Rptr. 442, 567 P.2d 1162, did not preclude a hospital from ever taking any action which could affect a physician's hospital privileges without an adjudicatory hearing.
"The California Courts have protected physicians from unreasonable and arbitrary exclusion from hospital staffs....
"......................................
"There is, however, a definite distinction in the case law between the intentional actions of a hospital directed specifically toward the exclusion of a particular physician or groups of physicians, and the actions of a hospital which may, as a practical matter, result in the exclusion of individual practitioners but were undertaken for less personally directed reasons. Cases in the first category have protected physicians; cases in the latter category have often balanced the equities in favor of the hospitals.
"......................................
"Thus it may be seen that the `property right' of a physician in hospital staff privileges is subject to protection in some contexts but not in others...." (Redding v. St. Francis Medical Center, supra, 208 Cal. App.3d at pp. 103-105, 255 Cal.Rptr. 806.)
Plaintiffs contend Redding is distinguishable because the two plaintiffs were extended an opportunity to be the surgeon in charge of the new closed department. Thus, there is no evidence the hospital's decision to close the heart surgery program was directed at a particular physician or group of physicians. The facts of Redding belie plaintiffs' argument.
First, it is significant that one of the primary reasons the defendant hospital in Redding considered closing its heart surgery program was a quality of care issuean unacceptably high mortality rate. Although the plaintiffs' mortality rate was very low, some or all of the other surgeons who performed heart surgery at defendant hospital must have been experiencing problems for the overall program to experience a higher than expected mortality rate. Yet the court had no problem finding the closure was the result of a valid policy decision (quasi-legislative) and not directed at any specific individual.
Second, although the opinion indicates both of the plaintiffs in Redding were offered the opportunity to be in charge of the new heart surgery program, it does not indicate they were to simultaneously occupy the position. The logical inference is that one, and then the other was offered the position. Thus, if one had accepted the position, the other would necessarily have been excluded. This fact undercuts plaintiffs' claim that Redding is inapposite because it involved a situation where the plaintiffs were offered a position and declined. In addition, once the plaintiffs in Redding declined the director position, there is no evidence they were offered a subcontract which would have allowed them to continue to practice at the hospital.
When a hospital department is going through the process of closure, the end result will be to either increase or decrease the number of physicians, or have their numbers remain the same. Regardless of the outcome, it is quite possible that any individual physician will not be offered a subcontract. In these times, when corporate change is so common, the fact an incumbent physician is not offered a subcontract by the incoming corporation does not necessarily reflect on his or her competence. In any job search where there are a limited number of positions, there can only be so many successful applicants. For the unsuccessful ones, their failure to receive an offer may not reflect favorably on them; however, it does not necessarily reflect negatively.
Plaintiffs urge us to draw a line based on how they claim some nebulous public perceives a physician, following his or her failure to be offered a subcontract after closure *530 of a department. They claim the only situation where a hospital may legally close a department without all department members receiving subcontract offers is when the department is downsized. Apparently they believe this scenario somehow softens the impact on a physician's reputation. Simply put: plaintiffs will never be satisfied short of a complete pairing of physicians with newly created positions following closure of a department. However, a judicial pronouncement of a rule requiring a hospital to do as plaintiffs suggest smacks of court meddling in hospital administration, a strongly disfavored practice. (See Lewin v. St. Joseph's Hospital of Orange, supra, 82 Cal.App.3d at p. 385, 146 Cal.Rptr. 892.) Plaintiffs want us to give them insurance not available to the vast majority of the working publicabsolute job security. This, we decline to do.
We conclude that Memorial Hospitals' decision to close the anesthesiology department was quasi-legislative, since it was not directed at any specific physician or group of physicians. Rather, it was based on a genuine concern about the overall function of the anesthesiology department and directed at improving the quality of patient care provided by that department. Further, we expressly reject any inference in Mateo-Woodburn that a hospital has a legal obligation to offer an incumbent physician a position in a closed department as a precondition to finding a closure decision is quasi-legislative rather than adjudicative.
IV. Adequacy of the closure procedures
Having found Memorial Hospitals' decision to close the anesthesiology department was quasi-legislative, we next consider plaintiffs' other assertions of error, which are two-fold. First, they contend the procedure by which Memorial Hospitals closed the anesthesiology department was so fundamentally flawed and unfair that it did not satisfy the requirements of a valid quasi-legislative decision. Second, plaintiffs argue the trial court erred when it failed to consider the closure decision as an "integrated whole."
A. Standard of review[***]
B. Analysis
The trial court concluded: "The action to close the Department of Anesthesia was quasi-legislative, reasonable, rational, lawful, and in conformity with public policy. It was not arbitrary, capricious, or entirely lacking in evidentiary support." As a factual predicate to this conclusion the court found, notwithstanding his testimony to the contrary, that: "Dr. Abadir did make the statement in his report regarding `high complication rate in young healthy patients.'" Further, the court found that if Dr. Shouse did make a misstatement concerning Dr. Abadir's findings, it was not a material misrepresentation and not significant. The court also found the decision to close the anesthesiology department was the result of "an extremely long and open process," with fair notice having been given to plaintiffs.
1 _2[***]
3. Closure process as an "integrated whole"
Quoting our language in Mateo-Woodburn,[6] plaintiffs argue the trial court erred because it failed to consider the steps in the closure of the anesthesiology department as an "integrated whole." Plaintiffs claim that in accordance with Mateo-Woodburn, Memorial Hospitals' legal responsibility extended to the selection of the subcontractors by Gould because the terms of the subcontracts were "`part of the [hospital's] administrative decision.'" (Mateo-Woodburn, supra, 221 Cal.App.3d at p. 1187, 270 Cal.Rptr. 894.) Plaintiffs claim the trial court did not consider the closure decision as an integrated whole, but "artificially divided" it into distinct phases. They argue the court considered the closure of the anesthesiology department in three distinct phases: Memorial Hospitals' decision to close the department; the award of the anesthesiology services contract to Gould; and the selection of *531 subcontractors by Gould. Plaintiffs argue this procedure resulted in minimization of the impact of the irregularities in each separate phase, allowing the court to conclude the process as a whole was fair. Additionally, plaintiffs argue that somehow this procedure contributed to the trial court's failure to recognize that Memorial Hospitals had a legal duty to ensure subcontracts were offered to plaintiffs, even though Gould did not. Plaintiffs are incorrect on both counts.
Initially, we recognize plaintiffs' argument that the closure process must be considered as an integrated whole is akin to claiming it must be reviewed for cumulative error. In other words, they argue the court failed to consider the cumulative impact of problems in each phase of the overall process on the fairness of the closure decision. However, implicit in this argument is the assumption that errors occurred in each phase of the process. The only rational way to make this determination is to do exactly what the trial court did: consider each discrete step in the process separately. Having done this, the court found no error in each step of the process. Therefore, it is difficult to understand how the court could have erred in failing to consider the cumulative effect of the absence of error in each phase of the closure process on the overall decision to close the department.
Second, to the extent plaintiffs' claim that the closure decision, including the selection of subcontractors by Gould, implies the existence of a conspiracy or sub rosa agreement between Memorial Hospitals and Gould to exclude plaintiffs, we reject it. The trial court specifically found there was no conspiracy between Memorial Hospitals and Gould to discriminate against plaintiffs or exclude them from the anesthesiology department. Plaintiffs have not appealed this finding and, therefore, are bound by it.
Third, it is important to recognize the context in which we discussed the requirement to consider the closure process as an integrated whole in Mateo-Woodburn. The passage quoted by plaintiffs is from our discussion of the plaintiffs claim in Mateo-Woodburn, that the terms of the subcontracts offered them were unfair and "Draconian." (Mateo-Woodburn, supra, 221 Cal. App.3d at p. 1186, 270 Cal.Rptr. 894.) Based on the fact the defendant hospital had contractually reserved the right to review and approve the form of any subcontract offered, we concluded the terms of the contract were an integral part of the closure decision. (Id. at p. 1187, 270 Cal.Rptr. 894.) It was in this context that we stated the closure process was to be considered as an integrated whole. Thus, we held the terms of the subcontracts would be reviewed according to the same deferential standard as the rest of the closure process and would be upheld unless it was substantially irrational. (Ibid.)
However, the holding in Mateo-Woodburn should not be read to mean a hospital retains responsibility for every part of the subcontracting process by the contractor that receives an exclusive contract. In Mateo-Woodburn, we found the terms of the subcontracts were reviewable as part of the closure process because the hospital contractually retained the right to review them as part of its contract with the contractor. However, the opinion does not state that the procedure by which the contractor decided which physicians it would offer subcontracts was reviewable by the court as an integral part of the closure decision.
Reviewing the facts in plaintiffs' case, it is apparent Memorial Hospitals attempted to extricate itself entirely from the subcontractor selection process. First, the RFP it issued did not dictate the manner in which a bidder would satisfy the requirements of the contract. It did not dictate the number of anesthesiologists, who they would be, or whether they were required to be directly employed by the bidder or independent contractors.[7] It only required the anesthesiologists who were to provide services under the contract be licensed in California, be certified or eligible for certification by the American Board of Anesthesiology, and obtain *532 medical staff membership at Memorial Hospitals. The RFP required any. bidder to list the names of proposed staff, including anyone who had agreed to enter a subcontract with the bidder in the event it was awarded the contract. However, the only specified criteria which Memorial Hospitals stated was required was board certification or board eligibility.
There is nothing in the RFP or final contract which dictates what criteria Gould had to use in selecting subcontractors or direct employees, or the manner in which they should be selected.[8] Further, Memorial Hospitals rejected Gould's initial proposal which would have required Memorial Hospitals to select the independent anesthesiologists who would be offered subcontracts under its proposal. Gould was specifically required to take responsibility for selecting the independent anesthesiologists with whom it would subcontract. Moreover, the evidence supports the trial court's finding that after award of the contract to Gould, Memorial Hospitals did not direct to whom Gould should or should not offer a subcontract.
Neither did Memorial Hospitals play any part in the development of criteria used by Gould in selecting subcontractors or suggest who the members of the subcontractor selection committee should be. When Gould sought advice on how to select subcontractors, Memorial Hospitals suggested the selection process should be objective and open to all current members of the anesthesiology department. The criteria for selection of the subcontractors was developed by Dr. Imanaka after discussion with members of the selection committee. After the members of the selection committee scored each candidate individually, it was Dr. Imanaka who compiled the total scores and decided how to rank the applicants. Memorial Hospitals played no part in this process and there is no evidence it ever saw the completed score sheets. The only apparent connection between the subcontractor selection committee and Memorial Hospitals was that it allowed the committee to meet in its facility. Thus, there was sufficient evidence to support the trial court's "finding that the subcontractor selection committee did not act on behalf of Memorial Hospitals.
Based on the express terms of the RFP and the evidence presented at trial, we conclude that review of Memorial Hospitals' quasi-legislative decision to close the anesthesiology department does not include the process by which Gould selected the subcontractors. That does not mean this process is immune from review. However, this review is much more circumscribed. The court's role in reviewing an employment decision is limited to determining whether it was based on unlawful criteria:
"[T]he employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to ... liability, although this may be probative of whether the employer's reasons are pretexts for discrimination." (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at p. 259, 101 S.Ct. 1089.)
The trial court's characterization of the scoring process used by Gould to select the subcontractors as "a very erratic process," is accurate. There were wide variations in the scores plaintiffs received from the members of the selection committee on criteria which appear to be subject to very objective assessment, i.e., board certification or eligibility. The scores received by plaintiffs in the area of experience were little *533 different from the scores received by applicants who had just completed their residency in anesthesiology. Dr. Imanaka filled out the score sheet of one member of the committee who was absent without his knowledge and contrary to his wishes. Also, one member gave plaintiffs maximum scores and all other applicants minimum scores as a protest to how the selection process was conducted.
In addition to the discrepancies in the selection process, plaintiffs highlight the personal animosity of Dr. Imanaka and other members of the selection committee toward them, and Dr. Imanaka's incorrect statement to the selection committee that a CSA review had found plaintiffs' work to be substandard. There is no question the selection process was not a model of consistency and could have been done better or differently. However, it is not the role of a reviewing court to question the wisdom of an employment decision. "[T]he factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent. [Citations.]" (Fuentes v. Perskie (3d Cir.1994) 32 F.3d 759, 765.)
The evidence does not support a conclusion that plaintiffs were not selected as subcontractors based on consideration of unlawful criteria. As explained earlier, plaintiffs have failed to establish that any action taken by either Memorial Hospitals or Gould was motivated by racial animus against Dr. Turner. Neither have they identified any other unlawful criteria used by Gould in its decision to not offer them subcontracts. Therefore, plaintiffs' claim that the subcontractor selection process improperly excluded them is without merit.
V.-VII.[]
DISPOSITION
The judgment is affirmed. Costs are awarded to Gould and to Memorial Hospitals on the appeal. Costs are awarded to plaintiffs on the cross-appeal as against Memorial Hospitals only.
DIBIASO, Acting P.J., and HARRIS, J., concur.
NOTES
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of Parts I, II, IV-A, IV-B(l) and (2), V, VI, and VII.
[1] Gould Medical Foundation and Gould Medical Corp., Inc. will be referred to collectively as "Gould."
[2] "... In an `open staff system, all `qualified' physicians with medical staff privileges are permitted to work at the Hospital in their respective medical departments. Under a `closed system,' the hospital contracts with an `exclusive provider' or particular physician group for certain medical services, thereby `closing' the medical practice to other physicians who are not members or employees of the contracted physician group." (Janda v. Madera Community Hosp. (E.D.Cal.1998) 16 F.Supp.2d 1181, 1183; see Mateo-Woodburn, supra, 221 Cal.App.3d at p. 1175, 270 Cal.Rptr. 894.)
[3] "[A] practitioner who temporarily takes the place of another." (Dorland's Illus. Medical Diet. (26th ed. 1990) p. 756.)
[**] See footnote *, ante.
[4] Dr. Barnette testified he talked to Dr. Major about a position as an independent anesthesiologist at Memorial Hospitals in March 1989. However, his interest ended when Dr. Freeman said he would not share any cases with him. On the other hand, Dr. Major testified one of the reasons he did not bring more independent anesthesiologists into the hospital was because the Gould anesthesiologists said they wanted to pick up the extra cases.
[***] See footnote *, ante.
[6] "The various steps involved in the process of moving from an open to a closed system cannot be segmented but are to be considered as an integrated whole." (Mateo-Woodburn, supra, 221 Cal.App.3d at p. 1187, 270 Cal.Rptr. 894.)
[7] The final contract did provide that anesthesia services would initially be provided by six Gould anesthesiologists and four independent anesthesiologists. However, this provision was not mandated by the RFP, but rather as the result of Gould's proposal.
[8] The final contract did provide that any anesthesiologist or nurse anesthetist who was to provide anesthesia services had to be approved in writing by Memorial Hospitals. However, this provision was not limited to anesthesiologists with whom Gould entered subcontracts, but to anyone who would provide anesthesia services under the contract. Thus, this provision cannot reasonably be interpreted as an attempt by Memorial Hospitals to control the procedure or criteria by which Gould selected the independent anesthesiologists. Rather, considering the contract as whole, the provision is reasonably construed to be a means by which Memorial Hospitals ensured that anyone who was to provide anesthesia services under the contract met the general requirements set forth in other provisions of the contract, e.g., medical staff membership, licensure, and board certification or eligibility.
[] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262637/ | 452 Pa. 524 (1973)
Commonwealth
v.
Watlington, Appellant.
Supreme Court of Pennsylvania.
Submitted May 21, 1973.
July 2, 1973.
*525 Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Richard D. Walker, Public Defender, for appellant.
Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE ROBERTS, July 2, 1973:
In the early morning of May 14, 1972, Herbert Riehl, while sitting in his car in Harrisburg, was shot and killed during the course of an apparent robbery attempt. Appellant, Tollie Watlington, and Thomas Epps were arrested and charged with murder. Appellant and co-defendant Epps were tried jointly before a jury and adjudged guilty of first degree murder. Both were sentenced to life imprisonment.
*526 On this direct appeal, appellant challenges the trial court's failure to give a cautionary instruction regarding the testimony of co-defendant Epps. Appellant argues that the jury should have been instructed to view this testimony, coming from a "corrupt source," with extreme scrutiny. Cf. Commonwealth v. Sisak, 436 Pa. 262, 265, 259 A. 2d 428, 430 (1969).
However, since no objection was made below to the trial court's charge,[*] that issue is not now properly before this Court. Pa. R. Crim. P. 1119(b) provides: "No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate." As we stated in Commonwealth v. Jennings, 442 Pa. 18, 24, 274 A. 2d 767, 770 (1971), ". . . appellant's failure to take . . . specific exception to . . . the charge, as required by Pa. R. Crim. P. 1119(b), forecloses our consideration of this issue on appeal." See also Commonwealth v. Sullivan, 450 Pa. 273, 275-76, 299 A. 2d 608, 609-10 (1973).
Since issues not raised at trial or in post-trial motions may not be raised for the first time on appeal, Commonwealth v. Agie, 449 Pa. 187, 296 A. 2d 741 (1972), appellant's claim must be decided adversely to him.
Judgment of sentence affirmed.
Mr. Justice EAGEN concurs in the result.
CONCURRING OPINION BY MR. JUSTICE O'BRIEN:
I concur in the result for the reason that I believe there was no basic and fundamental error requiring the *527 grant of a new trial. See Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968) and my concurring opinion in Commonwealth v. Sullivan, 450 Pa. 273, 281, 299 A. 2d 608-613 (1973).
NOTES
[*] The record indicates that at the end of the court's charge, the court inquired of defense counsel: "THE COURT: . . . Mr. Goldberg, on behalf of the defendant Watlington do you have any exception to put on the record at this time? MR. GOLDBERG: No, Your Honor. THE COURT: Either to the Charge on the law or on the facts. MR. GOLDBERG: No." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262639/ | 84 Cal.Rptr.2d 315 (1999)
71 Cal.App.4th 920
Phillip SERETTI et al., Cross-complainants and Appellants,
v.
SUPERIOR NATIONAL INSURANCE COMPANY, Cross-defendant and Respondent.
No. B106505.
Court of Appeal, Second District, Division Four.
April 28, 1999.
Review Denied July 21, 1999.
*316 Law Offices of Herbert Dodell, Herbert Dodell, Law Offices of Burton Mark Senkfor and Burton Mark Senkfor, Beverly Hills, for Cross-complainants and Appellants.
Haight, Brown & Bonesteel, Roy G. Weatherup, Robert L. Kaufman, Margaret Johnson Wiley, William G. Baumgaertner and Debra Gemgnani, Santa Monica, for Cross-defendant and Respondent.
CURRY, J.
Appellants Phillip Seretti and Janja Vujovich contend on appeal that respondent Superior National Insurance Company, the workers' compensation carrier for their wholly owned corporation, was liable to them individually for failing to defend actions brought as the result of injury to two of the corporation's employees and for entering into a settlement with the employees which was adverse to the interests of the insured. We agree with the trial court that appellants lack standing to assert a claim against respondent for bad faith insurance practices, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Civil Complaints
In June of 1994, Shawn, Debbie, Donna, and Dorian Lobina and Darlene Smith (hereafter "the Lobinas") brought suit against appellant Seretti for negligence and wrongful death in connection with a fatal injury to their father, Louis Lobina. Seretti and his wife, appellant Vujovich, owned real property on Floye Street in Hollywood on which the decedent was working at the time of the accident. The complaint alleged that Seretti and the Doe defendants negligently "controlled their premises" and "the construction being performed thereon"; negligently "failed to hire a contractor, failed to properly supervise the construction project, failed to make sure that proper safety precautions and proper construction procedures were being followed"; allowed "dangerous conditions" to exist; and performed work creating "a peculiar risk of harm." Vujovich was added as Doe No. 1 in January 1995, and appellants' wholly owned corporation, Post Sound Corporation, was added as Doe No. 2 in May 1995.[1]
In May of 1995, Omar Garcia, a co-worker of Louis Lobina's injured in the same accident, brought an independent action against appellants Seretti and Vujovich, and Post Sound. The two cases were consolidated.
In November of 1995, the Lobinas sought leave to amend their complaint to add a paragraph stating: "Plaintiffs' decedent's death and resulting damages to plaintiffs herein arose out of and occurred in the course of decedent's employment by defendant Post Sound. Defendant Post Sound failed to secure the payment of compensation for the damages arising out of decedent's death, as a result of which plaintiffs bring the within action against defendant Post Sound under the authority of and pursuant to California Labor Code § 3706 et seq."[2]*317 Workers' Compensation Compromise and Release
At the same time the lawsuits were pending, the Lobinas and Garcia pursued workers' compensation claims against Post Sound.[3] In March of 1996, Garcia entered into a compromise and release. Another compromise and release listing Sharon and Dorian Lobina as the applicants, and signed by Sharon only, was also executed in March of 1996.
Both compromise and release documents contained the following language: "Defendant is denying that the applicant was the employee of Post Sound Corporation at the time of his injuries, and defendant is denying that it provided workers' compensation insurance coverage to Post Sound Corporation covering the injuries of [Omar Garcia/Louis Lobina]. [¶] The defendant would produce evidence that the [applicant/decedent] was injured while performing laboring duties on a construction site at a residence owned by Mr. & Mrs. Seretti, principal officers of the Post Sound Corporation. The residence which was being remodeled was neither being used as, nor designated as an insured location and place of business of Post Sound Corporation. No payroll information submitted by Post Sound Corporation listed laborers or carpenters as employees of Post Sound Corporation. [¶] Defendant contends that the work activities engaged in by the [applicant/decedent] herein, were done so at the request of and for the benefit of Mr. & Mrs. Seretti, the owners of the residence. The defendant contends that the fact that [Garcia/Lobina] on occasion performed work activities at Post Sound Corporation, and that Mr. & Mrs. Seretti are the principal stockholders of Post Sound Corporation does not create an employment relationship between the [applicant/decedent], with the duties that he performed on the Seretti residence, nor does it create workers' compensation coverage at a location not listed in the policy declarations." The documents also stated that the applicants reserved the right to proceed against the Serettis individually.
In connection with the settlement of the workers' compensation claims, respondent submitted an affidavit which stated: "A serious dispute exists between the parties as to coverage, employment and injury AOE/ COE.[[4]] As such, defendants contend that payment to lien claimants on a workers' compensation basis is neither appropriate nor reasonable."
The Cross-Complaint
On March 22, 1996, just before trial was to proceed in the Lobina/Garcia consolidated matter, the trial court heard testimony that "the insurance company"referring to respondent"will not be bound by any decision of this court unless they have been included in the action as a party." By minute order of that date, the court granted "[d]efendant's" motion for leave to file a cross-complaint. Post Sound and appellants thereafter filed a cross-complaint against respondent for, among other things, breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress, and declaratory relief. The cross-complaint alleged that appellants were covered under the policy issued by respondent "by virtue of their ownership of Post Sound...." It maintained that Lobina and Garcia were employees of Post Sound and were injured "while acting in the course and scope of their employment...." The claim was based in part on settlement of the WCAB action on conditions "favorable to [respondent,] but adverse to its insureds."
The insurance policy on which the cross-complaint was based identified the insured as "Post Sound Corporation," operating under the classification of "radio, television or commercial broadcasting stations...." The policy applied to all officers and directors of the corporation as employees, except for those expressly excluded. "Phillip Seretti" and *318 "Janja Vujovich" were expressly excluded from coverage.[5]
Respondent demurred to the cross-complaint contending, among other things, that appellants lacked standing. The Lobinas simultaneously moved to strike the cross-complaint, on the ground that "it exceeds the scope of leave granted by the court's ruling of March 22, 1996." According to those moving parties: "The leave granted by this court strictly limited the scope of the cross complaint which defendants Seretti, Vujovich and Post Sound, etc., would be allowed to bring against Superior National to a declaratory relief type action. The purpose stated by the court for allowing the cross complaint was to determine the limited issue of whether or not defendant Post Sound had viable workers compensation coverage for the subject accident and resulting death. [¶] The court allowed such a limited declaratory relief type action in an abundance of caution to insure that Superior National would be bound by whatever ruling the court made in a bifurcated trial on the issue of workers compensation insurance coverage pursuant to Labor Code § 3706 and 3708."
The court sustained respondent's demurrer as to appellants on the grounds that (1) "Seretti and Vujovich have no standing in this action" because "[t]hey are not insureds under the subject policy" and (2) "the court did not grant leave to allow Seretti and Vujovich to file a cross-complaint."[6] The court distinguished Truestone, Inc. v. Travelers Ins. Co. (1976) 55 Cal.App.3d 165, 127 Cal. Rptr. 386 in which shareholders were permitted to maintain a separate claim because "[t]he individual shareholders in Truestone were named insureds in the policy, which is not the case in the present case. Furthermore, in the present case, the policy expressly excludes Seretti and Vujovich from the status of insureds."
The notice of ruling prepared by respondent stated that its "demurrer was sustained as to the entire cross-complaint without leave to amend, as to Phillip Seretti and Janja Vujovich's cross-claims on the basis that they have no standing to sue in this action because they are not insureds under the subject policy of insurance." The judgment, also prepared by respondent, contains similar language: "[T]he court ... sustained the demurrer of cross-defendant Superior National Insurance Company, without leave to amend, as to the cross-complaint in its entirety regarding the claims of defendants and cross-complainants Phillip Seretti and Janja Vujovich, finding they have no standing to sue in this action as they are not insureds under cross-defendant Superior National Insurance Company's insurance policy at issue in this lawsuit." Appellants noticed a timely appeal from the judgment.[7]
DISCUSSION
I
Appellants contend that the shareholders of a small, closely held corporation have standing to pursue an insurance bad faith action against the corporation's insurer. In support of their position, appellants rely primarily on Truestone, Inc. v. Travelers Ins. Co., supra, 55 Cal.App.3d 165, 127 Cal.Rptr. 386. There, Travelers Insurance Company and a related insurer issued a policy of liability insurance covering a small corporation, Truestone, Inc., and its sole shareholders. (55 Cal.App.3d at p. 168, 127 Cal.Rptr. 386.) A claim covered by the policy was asserted against the corporation and, according to the insureds, Travelers "unreasonably and in bad faith refused to accept" a settlement within policy limits. (Ibid.) The individual shareholders alleged in a separate cause of action against Travelers, that its failure and refusal to settle within policy *319 limits caused them emotional distress. (Ibid.) Demurrer was sustained by the trial court to this cause of action. On appeal, the shareholders asserted that "because they, as well as Truestone, are named insureds in the Travelers policy, Travelers was obligated to them as well as to the corporation to act in good faith with respect to claims of third persons against the corporation." (Id. at p. 169, 127 Cal.Rptr. 386.)
In considering the issue of whether the shareholders could pursue their own individual breach of covenant claim, the appellate court discussed the rationale behind the formation of the tort: "The covenant of good faith and fair dealing implied in every liability insurance policy obligates the insurer to treat offers to settle claims against its insured within limits of the insurance coverage without regard to its own special interest existing because of policy limits. The covenant thus imposes a duty upon the insurer to accept reasonable settlement offers within the scope of its policy. [Citations.] Breach of the duty creates causes of action in both contract and tort. [Citation.] [H] While the law recognizes a cause of action in tort, the duty breached by the tortious conduct of an insurer refusing to settle in good faith flows from the contractual relationship. [Citation.] The insured does not, by the contract of insurance, seek `to obtain a commercial advantage but to protect [himself] against the risks of accidental losses, including the mental distress which might follow from the losses.' "(Truestone, Inc. v. Travelers Ins. Co., supra, 55 Cal.App.3d at pp. 169-170, 127 Cal.Rptr. 386.)
Because the tort derived from a contractual relationship, the court placed special emphasis on the fact that in the case before it "the [shareholders], equally with their closely held corporation, were parties to the insurance policy with Travelers." (Truestone, Inc. v. Travelers Ins. Co., supra, 55 Cal.App.3d at p. 170, 127 Cal.Rptr. 386.) As a result, "[t]he duty created by the implied covenant of good faith and fair dealing ran equally to them.... The rationale of the tort of refusal of an insurer to settle in good faith ... dictates that the [shareholders], as named insureds with their corporation, be afforded the protection of the tort cause of action." (Ibid.) The court summarized its holding as follows: "[W]here, as here, shareholders of a closely held corporation are joint insureds with it, the insurers' implied covenant of good faith and fair dealing runs to the shareholders as well as to the corporation and... the shareholders may pursue a cause of action for its breach." (Id. at p. 171, 127 Cal.Rptr. 386.)
Truestone was followed in Tan Jay Internal, Ltd. v. Canadian Indemnity Co. (1988) 198 Cal.App.3d 695, 243 Cal.Rptr. 907 under similar circumstances. In that liability insurance provider denied coverage and refused to provide a defense to a corporation sued by one of its employees. The employee was injured while transporting a sailboat owned by the corporation's principal shareholder and lent to the corporation for a promotional campaign. The policy included the shareholder as a named insured. (198 Cal. App.3d at p. 707, 243 Cal.Rptr. 907.) The shareholder's separate claim for breach of the covenant of good faith and fair dealing was resolved at the trial level by the trial court's grant of the insurer's motion for judgment notwithstanding the verdict. In overturning that decision, the appellate court quoted a portion of the above language from Truestone, emphasizing the insurer's obligation to those named as insureds in the policy: "As was explained in [Truestone, supra], "`[t]he covenant of good faith and fair dealing implied in every liability insurance policy obligates the insurer to treat offers to settle claims against its insured within limits of the insurance coverage without regard to its own special interest existing because of policy limits.... The insured does not, by the contract of insurance, seek "to obtain a commercial advantage but to protect [himself] against the risks of accidental losses, including the mental distress which might follow from the losses."'"" (198 Cal.App.3d at p. 707, 243 Cal.Rptr. 907, emphasis original.) Thus, as in Truestone, it was the shareholder's status as an additional insured under the policy which prompted the court in Tan Jay to revive his claim.
Appellants rely on language in Cancino v. Farmers Ins. Group (1978) 80 Cal.App.3d 335, 145 Cal.Rptr. 503 to persuade us that *320 shareholders need not be insureds under the policy to state a breach of covenant claim. That case involved an insurance company's alleged failure to deal "fairly and in good faith" with a party purporting to be both an insured and a claimant under an uninsured motorist provision of a liability policy issued to another party. (80 Cal.App.3d at p. 337, 145 Cal.Rptr. 503.) The complaint had alleged that the claimant/plaintiff "`was an express "insured" under the terms and conditions of said insurance policy,' by virtue of the fact that he `was loading' the `insured' `motor vehicle' at the time he was struck by an automobile driven by an uninsured motorist." (Ibid.) The main issue in Cancino was whether the insurer's duty of good faith and fair dealing applied equally to the insurer's handling of a claim for compensation directly from the insurer as it did to the insurer's handling of a liability claim. The court concluded: "There is no difference between the duty of an insurer to settle an insured's liability claim and thus protect him from liability in excess of policy limits and its duty to settle the insured's claims to compensation directly from the insurer. These are both simply aspects of the same duty which is said to be based upon the implied covenant of good faith and fair dealing." (Id at p. 340, 145 Cal.Rptr. 503.)
In reaching this conclusion, the court discussed a number of cases which seemed to suggest that the insurer's duty ran to the insured and not the claimant. Discussing Truestone, the court stated: "The holding in Truestone was that two individuals who were sole shareholders of a corporation could sue the insurer. The corporation and both shareholders were named insureds in the policy. Suit was brought against the corporation on a claim within the coverage of the policy. The claimant offered to settle within policy limits and the insurer refused. When the claim went to trial, the resulting judgment exceeded the policy limits by $35,000. The shareholders were held entitled to seek both compensatory and punitive damages. In so holding, the court noted (55 Cal.App.3d at p. 170, 127 Cal.Rptr. 386): `Here the [shareholders], equally with their closely held corporation, were parties to the insurance policy with Travelers. The duty created by the implied covenant of good faith and fair dealing ran equally to them.' Nothing said by the court, however, suggests that insureds who are not parties to the insurance contract are not owed the same duty." (Cancino v. Farmers Ins. Group, supra, 80 Cal.App.3d at p. 341, 145 Cal.Rptr. 503, emphasis added.)
The court went on to explain why the plaintiff was, in fact, an insured under the policy: "`[T]he term "insured" means the named insured and the spouse of the named insured and relatives of either while residents of the same household while occupants of a motor vehicle or otherwise, heirs and any other person while in or upon or entering into or alighting from an insured motor vehicle....' [Citation.] Persons such as plaintiff are required to be covered by virtue of the same provision which benefits the named insured. The intent to benefit all insureds has the same sources: (1) the general policy of the Insurance Code `to ... provide compensation for those injured through no fault of their own.... ` [Citation.]; and (2) the specific policy expressed in Insurance Code section 790.03, subdivision (h)(5) which prohibits as unfair practice in the business of insurance `[n]ot attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.'" (Cancino v. Farmers Ins. Group, supra, 80 Cal. App.3d at p. 345, 145 Cal.Rptr. 503.)
Appellants are correct that the court in Cancino recognized a distinction between the "parties" to the insurance contractwho will generally also be named insuredsand "insureds" who are neither parties to the insurance contract nor specifically named therein. A person can be deemed an "insured" by virtue of fitting into an expressly defined category of those for whose benefit the policy was created. This distinction does not assist appellants here. They were not parties to the insurance contract; they were not specifically named insured; and to the extent they fit into the general category of those for whom the policy was created to benefit employees, officers, and directors of Post Soundthey were specifically excluded.
*321 In short, none of the cases relied upon by appellants support their position. In each, the plaintiff was deemed to be an insured under the relevant policy, either by virtue of being a party to the insurance contract or named in the policy or by virtue of the policy definition of "insured" to include a class of which the plaintiff was a member.[8] These cases evince the fundamental rule that "[p]rivity of contract with the insurer is essential to an implied covenant action against the insurer." (Croskey et al, Cal. Practice Guide: Insurance Litigation (The Rutter Group 1998) Bad Faith, ¶ 12:55, p. 12A-14.) "Whether for better or worse ... liability for `bad faith' has been strictly tied to the implied-in-law covenant of good faith and fair dealing arising out of an underlying contractual relationship. Where no such relationship exists, no recovery for `bad faith' may be had. [Citation.] [¶] [Thus], an insurer's duty of good faith and fair dealing is owed solely to its insured and, perhaps, any express beneficiary of the insurance policy." (Austero v. National Cos. Co. (1976) 62 Cal. App.3d 511, 516-517, 133 Cal.Rptr. 107.)
Austero is one of several cases in which a party closely connected or related to the insured was precluded from recovering for its own damages arising from the insurer's breach of covenant of good faith and fair dealing owed to the insured. In Austero, the insurer denied Mr. Austero's claim for disability benefits, causing emotional distress to his wife. Mrs. Austero contended that her emotional distress was reasonably foreseeable, and pointed out that the disability policy premiums were paid with community funds and that their proceeds constituted community property. Concerning the foreseeability of harm to the wife of the policyholder, the court noted that it "is an important factor in fixing liability for negligently caused injury and may be an important factor in establishing tort liability generally, but it is only one of a number of policy factors to be considered. [Citations.]" (62 Cal.App.3d at p. 516, 133 Cal.Rptr. 107.) Concerning her interest in the policies and their proceeds, the court said: "[T]he fact remains that she is not a party to the contracts. As to disability benefits, plaintiff is at most an incidental or remote beneficiary, and, as such, can state no cause of action against [the disability insurer] for breach of a duty, express or implied, arising from the contractual relationship. [Citations.]" (Id. at p. 517, 133 Cal.Rptr. 107.)
A wife's claim for bad faith was rejected under similar circumstances in Hatchwell v. Blue Shield of California (1988) 198 Cal. App.3d 1027, 244 Cal.Rptr. 249. There, the husband was insured by a medical policy obtained through his employment. He had enrolled his wife as a "Dependent Subscriber," but the bad faith claim was based on failure to pay benefits arising from his hospitalization and medical care. The court pointed out that the wife "was not a contracting party," and that "[s]omeone who is not a party to the contract has no standing to enforce the contract or to recover extra-contract damages for wrongful withholding of benefits to the contracting party." (198 Cal. App.3d at p. 1034, 244 Cal.Rptr. 249.) Moreover, "[although she was eligible for health care benefits as a Dependent Subscriber, and as such may be termed a `co-insured' or `dependent beneficiary,' ... this is not sufficient to establish standing to sue for breach of contract and bad faith based upon the denial of benefits to [the husband]. A nonparty who is nevertheless entitled to policy benefits, such as an `insured' person under the terms of the policy or an express beneficiary, has standing only if she is the claimant whose benefits are wrongfully withheld. [Citations.]" (Ibid., citing Cancino v. Farmers Ins. Group, supra, 80 Cal.App.3d at pp. 344-345, 145 Cal.Rptr. 503, original emphasis.) "[The wife's] argument ignores the fact that the basis of her action is the denial of benefits for [the husband]. Her coverage as a dependent ... does not give her standing to enforce [the husband's] contract rights. Although [the wife] is an insured person and *322 an express beneficiary in regard to her own health care benefits, she is merely an incidental beneficiary in regard to [the husband's] benefits." (Hatchwell v. Blue Shield of California, supra, 198 Cal.App.3d at p. 1035, 244 Cal.Rptr. 249, fn. omitted.)
Hatchwell was followed in Gantman v. United Pacific Ins. Co. (1991) 232 Cal.App.3d 1560, 284 Cal.Rptr. 188, where the court held that the individual members of a homeowners association did not have standing to prosecute a bad faith action against the association's insurer. The court explained: "Here, although plaintiffs stand to gain when Association gains, the benefits plaintiffs seek belong to Association by the insurance contracts sued upon.... Plaintiffs are simply not claimants whose benefits were wrongfully withheld." (Id. at p. 1568, 284 Cal.Rptr. 188.)
Finally, although not discussed in any of the briefs, the issue of whether shareholders to a closely held corporation can maintain their own bad faith action against the corporation's insurer was considered by this court in C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 211 Cal.Rptr. 765. The corporation, C & H, had purchased marine insurance policies covering the shipment of 6, 437 pails of cured beef. Over 4,000 pails were delivered spoiled and in an unusable condition. Two shareholders brought a claim against the insurer based on the allegations that they were each 50 percent owners of C & H, and that the insurance policies were bought at their behest to guarantee the continued operation of C & H, and that they suffered emotional distress as a result of the failure to pay the corporation's claim. (163 Cal.App.3d at p. 1061, 211 Cal. Rptr. 765.) This court concluded that because the shareholders were neither the named nor additional insureds nor beneficiaries under the policy, "[t]hey did not state a cause of action for bad faith or negligent infliction of emotional harm (emotional distress) against [the insurer]. [Citation.]" (Id. at p. 1068, 211 Cal.Rptr. 765.)
In accordance with the overwhelming weight of authority, we affirm the trial court's ruling on appellants' lack of standing as shareholders to assert a claim against the corporation's insurer.
II
Appellants suggest that privity could be achieved by allowing them to pierce the veil of their own corporation and substitute themselves in the place of Post Sound as the named insured under the policy. Ignoring a corporation's separate existence is a rare occurrence, particularly where it is the shareholders who seek to pierce its veil, and the courts will do so only "to prevent a grave injustice. [Citation.]" (Cooperman v. Unemployment Ins. Appeals Bd. (1975) 49 Cal. App.3d 1, 7, 122 Cal.Rptr. 127.) The possibility that a contractor will not get paid for any of his work because he entered a contract in his own name but held his license under a corporate name, represents a grave injustice. (See Citizens State Bank v. Gentry (1937) 20 Cal.App.2d 415, 420, 67 P.2d 364.) Appellants' inability to maintain individual actions against their corporation's workers' compensation carrier does not. That individual shareholders will not be able to pursue bad faith insurance claims against the corporation's insurer does not allow the insurer to escape liability for improper conduct. The corporation itself, as named insured, can pursue its own rights, and the shareholders will profit indirectly.
Individuals are free to operate their business in their own names and accept all its debts and liabilities as their own. Having elected to avail themselves of the benefits of the corporate structure, as appellants did here, they cannot be heard to complain of their inability to take personal advantage of a right belonging to the corporation alone.
III
Appellants state that there is an ambiguity in the policy and therefore a potential for coverage. This argument, as we understand it, goes like this: (1) the policy states that "We [respondent] have the right and duty to defend, at our expense, any claim, proceeding or suit against you [Post Sound] for damages payable by this insurance"; (2) the Lobina and Garcia actions were suits against Post Sound for damages; (3) "damages" under the *323 policy are defined to include damages "`for which [Post Sound is] liable to a third party... by reason of a claim or suit against [Post Sound] by that third party to recover the damages claimed against such third party as a result of injury to [Post Sound's] employees [e.g., Lobina and Garcia]'"; (4) if appellants were held individually liable for injury to Lobina and Garcia, they would sue Post Sound for indemnity under the Labor Code[9] or some other theory; therefore, (5) respondent is obligated to defend the Lobina and Garcia lawsuits entirely, including claims which are not asserted against Post Sound; and (6) appellants and anyone else who might possibly sue Post Sound for indemnity for injury to one of Post Sound's employees are potential "insureds" under the policy.
We see numerous flaws in appellants' analysis. First, assuming that a duty to defend the entire Lobina and Garcia actions could be derived from the policy language, such duty would run to the insured. As we have explained at length, appellants are not insureds under the policy and have no standing to assert a claim for a failure to perform a duty owed under it. It would be up to Post Sound to bring a claim for failure to defend, if one exists.
Second, the duty to defend and damage provisions quoted by appellants come into play only when a "claim, proceeding, or suit" is actually brought against Post Sound "for damages payable by this insurance" or "a claim or suit" is brought by a third party "to recover the damages claimed against such third party as a result of injury to [Post Sound's] employees...." Nothing in the record presented here or to the trial court suggests that appellants asserted a claim against Post Sound for indemnity or that Post Sound tendered any such claim to respondent. (See Croskey et al., Cal. Practice Guide: Insurance Litigation, supra, Duty to Defend, ¶ 7:604, p. 7B-25 ["The duty to defend arises when the insured tenders defense of the third party lawsuit to the insurer."].)
Finally, this issue of whether a third party's potential claim for indemnity from the insured means that a duty of good faith is owed to the third party was resolved in Republic Indemnity Co. v. Schofield (1996) 47 Cal.App.4th 220, 226-227, 54 Cal.Rptr.2d 637 and Alex Robertson Co. v. Imperial Casualty & Indemnity Co. (1992) 8 Cal. App.4th 338, 10 Cal.Rptr.2d 165. In Republic Indemnity, cross-complainants, as employees, officers and directors of a professional corporation, brought a claim for breach of contract and breach of the covenant of good faith and fair dealing against the corporation's workers' compensation and employer's liability insurer.[10] The insurer moved for, and obtained, summary judgment on the ground that none of the claimants was an insured under the policy. On appeal, the cross-complainants argued that the indemnification provision contained in section 2802 of the Labor Code created an implication that all employees of a corporation were insureds under the policy. The court disagreed: "It is true the insurer may have to indemnify the corporation to the extent it is legally liable for losses its employees suffer. However, this does not mean the employees are `insureds' under the policy for the purpose of maintaining a breach of contract or bad faith action against the insurer. [¶] ... [¶] ... `It is clear that if there is no potential for coverage and, hence, no duty to defend under the terms of the policy, there can be no action for breach of the implied covenant of good faith and fair dealing because the covenant is based on the contractual relationship between the insured and the insurer.' [Citation.]" (47 Cal.App.4th at p. 227, 54 Cal. Rptr.2d 637, quoting Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36, 44 Cal.Rptr.2d 370, 900 P.2d 619, original emphasis.)
*324 Similarly, in Alex Robertson Co., supra, 8 Cal.App.4th 338, 10 Cal.Rptr.2d 165, a contractor entered into a contract with an architectural firm to provide architectural plans and specifications. The contract required the architectural firm to indemnify the contractor for its negligent acts, errors, and omissions. The architectural firm did not carry professional liability insurance. The contractor demanded that it obtain such insurance, and agreed to pay the premiums. The policy obtained specifically referenced the contract between the contractor and the architectural firm and made clear that it covered the architectural firm's liability under the contract. Subsequently, the contractor was sued for breach of contract and negligence in connection with the construction project. He tendered the defense to the architectural firm's insurer, and pursued an action against it after it refused to step in.
On appeal from the insurer's motion for summary judgment, the contractor contended that "it [was] an insured under the policy, or at least a triable question of fact exists as to that issue, by reason of the contractual liability coverage endorsement, the intent of [the parties and the insurance agent] that [the contractor] be covered, and evidence [the contractor] was billed for and b&paid the premiums on the policy." (Alex Robertson Co., supra, 8 Cal.App.4th at p. 343, 10 Cal.Rptr.2d 165.) The appellate court rejected that contention. As the court explained: "In essence, [the contractor] has sued the wrong party. Its indemnity agreement is with [the architectural firm], not with [the insurer]. [The contractor] may be able to proceed against [the architectural firm] under contractual or equitable indemnity theories. [Citations.] In either case, however, it must establish liability on the part of [the architectural firm].... [¶] ... [¶] Under the policy, [the insurer] agreed to pay `on behalf of [the architectural firm] all sums which [the architectural firm] shall become legally obligated to pay ... by reason of liability arising out of any negligent act ... in rendering or failing to render professional services....' [The architectural firm] has not yet become legally obligated to pay anything. Until such event, any claim by [the contractor] against [the insurer] under the policy is premature." (8 Cal.App.4th at p. 347, 10 Cal.Rptr.2d 165, fn. omitted.)
The same is true here. If appellants assert an indemnification claim against the insured, Post Sound, then that claim could be tendered to respondent. Until such time as a claim against its insured had been presented, respondent has no duty to defend and cannot be charged with bad faith.
DISPOSITION
The judgment is affirmed.
EPSTEIN, Acting P.J., and HASTINGS, J., concur.
NOTES
[1] The Lobinas also ultimately sued the manufacturer of the scaffolding from which the decedent fell.
[2] Labor Code section 3706 provides: "If an employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply."
[3] There was some dispute about whether all the Lobinas or only Sharon Lobina (described as "decedent Louis Lobina's live-in companion") were parties to the workers' compensation action. Sharon was not a party to the civil action.
[4] In workers' compensation parlance, "AOE/COE" means "arising out of and in the course of employment."
[5] Pursuant to Labor Code section 3351, subdivision (c), where the officers and directors of a private corporation are the sole shareholders, the corporation is not required to have workers' compensation coverage for the officers and directors as employees:
[6] The court further stated that it "did not grant Post Sound leave to file a cross-complaint alleging anything other than the 7th C/A for Declaratory Relief re: determination of coverage. The insurance bad faith and fraud theories do not belong in this case and will unnecessarily complicate and delay resolution of this case."
[7] While this appeal was pending, appellants settled with the Lobinas and Garcia.
[8] We note that the Cancino court also relied on Insurance Code section 790.03, subdivision (h), and the plaintiff's status as a claimant under the policy. This reasoning is no longer appropriate in view of the Supreme Court's holding in Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 313, 250 Cal.Rptr. 116, 758 P.2d 58, that no private right of action under section 790.03, subdivision (h) exists.
[9] Labor Code section 2802 provides: "An employer shall indemnify his employee for all that the employee necessarily expends or loses in direct consequence of the discharge of his duties as such, or of his obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying such directions, believed them to be unlawful."
[10] Contrary to what is stated in respondent's brief, the claimants did not base their claims against the insurer on their status as shareholders. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262644/ | 306 A.2d 164 (1973)
GO-VAN CONSOLIDATORS, INC.
v.
PIGGY BACK SHIPPERS, INC. et al.
No. 1865-Appeal.
Supreme Court of Rhode Island.
June 29, 1973.
Bradley L. Steere, Providence, for plaintiff.
Manning, Santaniello & Pari, V. James Santaniello, Jr., Providence, for defendants.
OPINION
KELLEHER, Justice.
The plaintiff in this civil action seeks damages and injunctive relief. The defendants are a former employee of the plaintiff and a corporation organized and controlled by the employee. The gist of the plaintiff's complaint is that the individual defendant has contacted and solicited business from its customers. A justice of the Superior Court, after hearing the evidence adduced by the litigants, found for the defendants. Hereafter, we shall refer to the plaintiff as "Go-Van," and the individual defendant as "Cook."
Go-Van was incorporated and began doing business in October, 1970. Two months later, it hired Cook as its sales representative and operations manager. Previous to this time, Cook had worked as a salesman for an interstate motor carrier.[1] The operation which has occupied the litigants' attention is known in the transportation industry as "piggy-backing." In the jargon of the motor and rail carriers, "piggy-back" service describes the long haul movement by rail of loaded truck trailers on specially fitted flat cars to a point nearest to where the freight is to be delivered. The feature of the service offered by Go-Van and Cook's corporation was that their *165 customers could ship on one trailer something less than a full trailer load. A customer's shipment could be consolidated or "mated" with others so that one trailer could be loaded with freight of several customers but all consigned to the same area.
Cook worked for Go-Van until April, 1972 when he left and began operating his own corporation. In seeking business for his new endeavor, Cook contacted 26 of Go-Van's customers. Once he had convinced six of them to ship their goods through his corporation, Go-Van commenced this suit.
The sole issue for our determination is whether the trial justice's refusal to classify Go-Van's list of customers as something akin to a trade secret was correct. We believe that it was.
This court has previously considered three cases where the confidentiality of a customer list was in issue. Shortly after the turn of the century, reliance was placed upon agency principles of master-servant to prohibit a former employee of an optical shop, who had examined the patients, prescribed glasses, and maintained various records, from using the shop's customer list. Such action, the court observed, breached an implied confidential relationship that existed between the master and his servant. Stevens & Co. v. Stiles, 29 R.I. 399, 71 A. 802 (1909). Later, in Colonial Laundries, Inc. v. Henry, 48 R.I. 332, 138 A. 47 (1927), a former driver-salesman was enjoined from soliciting customers on his laundry route from a list which had been built up by the labor and expense of the laundry. The list was not to be considered a part of the employee's general knowledge but was to be considered in the same category as a secret formula. The court in Colonial Laundries, Inc. distinguished milk, ice, laundry, and tea-route cases from those where a traveling salesman calls on customers whose identity and location could easily be determined by reference to a directory or trade journal. The rationale of the Colonial Laundries case is based upon the likelihood that, absent interference, route customers will continue to patronize the same supplier in contrast to customers whose special needs are fair game for the diligence, imagination and resourcefulness of the itinerant salesman.
Recently, we refused to enjoin the solicitation of the operators of gasoline service stations by a salesman who used his ex-employer's customer list. Callahan v. Rhode Island Oil Co., 103 R.I. 656, 240 A.2d 411 (1968). We distinguished Colonial Laundries on the ground that the operators could be easily identified as potential customers by the simple expedient of looking at the advertising material on display in the various stations or by simply perusing the yellow pages of any telephone book.
Cases involving an employer's efforts to insulate his customers from the entreaties of a former employee present the courts with the delicate task of balancing the employee's right to compete and earn a living against the employer's right to be protected from unfair competition. Here, Go-Van made no effort to protect the secrecy of its customer list.[2] There is no evidence that it and Cook had entered into any agreement whereby Cook would not solicit its customers once he had left Go-Van's employ. Having failed to contractually protect itself, Go-Van had the burden of persuading the trial justice that the identity of its customers was not readily ascertainable through ordinary business channels or through business or trade directories.
A business with extensive involvement in the solicitation of interstate shipment of freight is not conducted in a clandestine fashion. Although Go-Van's customers represented a wide array of industries, the fact that they use the facilities offered by *166 interstate carriers is readily ascertainable and a matter of common knowledge within the business community. The information which is the subject of the present controversy would be known by anyone working for a living in the freight solicitation business a business in which Cook is well-experienced and free to work.
The plaintiff's appeal is denied and dismissed.
JOSLIN, J., did not participate.
NOTES
[1] The record makes it clear that neither Go-Van nor defendant's corporation are common carriers. Go-Van is described in the record as a "shipper's agent." Go-Van's president explained that his corporation could not deliver a customer's product to the consignee, whereas a common carrier could provide such a service.
[2] An informative compilation of cases discussing all facets of the employee's obligation to refrain fom contacting former customers in the absence of an express contract can be found in 28 A.L.R.3d 7 (1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262674/ | 83 Cal.Rptr.2d 753 (1999)
71 Cal.App.4th 436
The PEOPLE, Plaintiff and Respondent,
v.
Robert Wayne TROTTER, Defendant and Appellant.
No. A082347.
Court of Appeal, First District, Division Five.
April 15, 1999.
As Modified on Denial of Rehearing May 14, 1999.
Marylou Hillberg, Santa Rosa, under appointment by the Court of Appeal, Counsel for Defendant and Appellant.
Bill Lockyer, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Jeremy Friedlander, Deputy Attorneys General, Counsel for Plaintiff and Respondent.
Certified for Partial Publication.[1]
HANING, J.
Robert Wayne Trotter appeals his conviction by jury trial of vehicle theft (Veh.Code, § 10851, subd. (b)), perjury (Pen.Code, § 118), and theft by false pretenses (Pen. Code, § 532). The court found true a prior robbery conviction (Pen.Code, §§ 667.5, subd. (b); 667, subds. (d) & (e), 1170.12). He contends the court improperly instructed the jury on the requirements of proof of perjury, and permitted an amendment to the information to allege the prior strike conviction under the "Three Strikes" law after the jury was discharged.
*754 Background
On September 28, 1996, Gerald Robert Cuff returned from vacation and discovered that his 1929 Ford Model A pickup truck had been stolen from a fenced yard at his Sonoma equipment company. Also missing was the truck's certificate of title listing him as the registered owner, which Cuff had last seen on his desk a week or two prior thereto. Cuff's employee, Edward Vladyka, saw the truck in the yard when he left work at 3 p.m. on September 26, and noticed it gone the next day.
On September 27, 1996, appellant told William Hodges, owner of Heavenly Car Rental and Repair (Heavenly) in Vallejo, that he had won the truck, and sold it to Hodges for $1,000 plus a Cadillac. Two wires hung down from the truck's ignition, and appellant explained to Hodges that the keys were lost. At Hodges's request appellant supplied a Department of Motor Vehicles (DMV) registration for the truck, and said he would forward him the certificate of title.
Ten days later Vallejo Police Detective Kevin Bartlett spotted the stolen truck parked in front of Heavenly. Hodges gave him a bill of sale for the truck and appellant's California identification card. Appellant's girlfriend gave Hodges a copy of the truck's new certificate of title which had come in the mail. Appellant's signature is located within a box on the certificate of title as the "transferee/buyer," certifying under penalty of perjury that the odometer reading reflects the actual mileage. The certificate of title also bears typewritten information including Cuff's name and address as the registered owner, the vehicle number, license plate, and transfer date. Under this typewritten information is the signature "Robert G. Cuff," certifying under penalty of perjury that the signature "releases interest in the vehicle," and next to it the handwritten date "9/18/96."
The signature "Robert G. Cuff as the registered owner on the certificate of title was not that of Cuff, who signs his name "Gerald Robert Cuff."
The Defense
Appellant denied stealing the truck, and testified that he won it in a pool game from a stranger named "Robert" "around the end of September." After the game "Robert" showed appellant the truck's certificate of title, which was signed "Robert G. Cuff." The "Robert" with whom appellant allegedly played pool represented himself as Robert Cuff. After the game appellant went to the DMV and registered the truck in his name. The next day he discovered the truck was leaking oil, and sold it to Hodges. Appellant said the truck started with a key when he acquired it from "Robert" and when he sold it to Hodges.
On cross-examination appellant said that on the advice of DMV personnel he noted on the vehicle transfer form that he acquired the truck as a gift. He also said that since the certificate of title stated the transfer date as September 18, 1996, that date must have been the date of the pool game and the date he received the truck. He admitted a 10-year-old prior conviction of second degree burglary.
The prosecution's position was that the perjury consisted of appellant's presentation of the truck's certificate of title to the DMV after forging the name "Robert G. Cuff as "signature of registered owner," thereby certifying under penalty of perjury that he was the truck's registered owner.
Discussion
I
Appellant contends the court erroneously failed to instruct the jury, sua sponte, with CALJIC No. 7.23, Sixth Edition 1996, which states: "The falsity of defendant's statement[s] may be established by direct or circumstantial evidence. However, the defendant may not be convicted of perjury where the only proof of the falsity of the statement[s] is the testimony of one witness which contradicts defendant's statement[s]."
The elements of perjury are a willful statement, made under oath, of any material matter which the declarant knows to be false. (Pen.Code,[2] § 118, subd. (a).) Proof of perjury *755 requires corroboration; section 118, subdivision (b) provides: "No person shall be convicted of perjury where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant. Proof of falsity may be established by direct or indirect evidence." The court has a sua sponte duty to instruct on the corroboration requirement of section 118, and the failure to do so is error. (See People v. Di Giacomo (1961) 193 Cal.App.2d 688, 698-699, 14 Cal. Rptr. 574 [construing instruction regarding corroboration requirement of former section 1103a, which contained language identical to section 118, subdivision (b)].)[3]
Citing the court's instruction that testimony by one credible witness is sufficient for proof of any fact to which the witness testifies (CALJIC No. 2.27), appellant argues that the instructional error led the jury to believe it could convict him of perjury based on Cuff's uncorroborated testimony that Cuff did not sign the certificate of title. However, this argument misses the issue. It is undisputed that the signature of "Robert G. Cuff on the certificate of title is not that of Cuff, and Cuff's testimony alone is sufficient to establish that fact. The question for the jury was whether appellant was the party who forged Cuff's signature on the certificate of title, thereby falsely representing himself under penalty of perjury as the registered owner of the stolen truck.
We agree with the People that no error occurred, because the corroboration instruction (CALJIC No. 7.23) was not required under the circumstances of this case. The focus of the corroboration requirement in the perjury statute is on the falsity of the statement, and not the identity of the perjurer. The corroboration requirement for perjury applies only "where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant. Proof of falsity may be established by direct or indirect evidence." (§ 118, subd. (b), italics added.) The language of CALJIC No. 7.23 simply repeats this focus: "[T]he defendant may not be convicted of perjury where the only proof of the falsity of the statement[s] is the testimony of one witness which contradicts defendant's statement[s]." (Italics added.) Indeed, the Use Note to CALJIC 7.23 states: "This instruction is designed for use in cases in which the falsity of defendant's allegedly perjurious statement is sought to be proved...." (Italics added.)
The corroboration requirement assumes that the defendant has made a statement under oath, and the issue for resolution is the veracity of that statement. In the instant case appellant admits submitting to the DMV the certificate of title with the forged signature of Cuff thereon. He concedes that Cuff's signature is a forgery, but denies that he was the party forging the signature, or being aware of the forgery. Appellant's attorney stressed this during his closing argument, telling the jury, "Whoever signed [the certificate of title] stole [the truck]. And let me ask you right now, is that [appellant's] signature? Yes or no? Is it [appellant's] signature on that title? Because if that's his signature on the title and the evidence supports that, well, he's guilty of everything and you can stop right there. [¶] But you don't know whose signature it is.... It was somebody else who was trying to start the car."
Since the false nature of the signature under penalty of perjury on the certificate of title was not disputed and therefore not in issue, CALJIC No. 7.23 was not required.
II[*]
Disposition
The judgment imposing enhancement of the perjury conviction with a prior strike is reversed. The trial court shall prepare and forward to the Department of Corrections an amended abstract of judgment showing the *756 prior offense as a one-year enhancement. The judgment is otherwise affirmed.
JONES, P.J., and STEVENS, J., concur.
NOTES
[1] Pursuant to California Rules of Court, rule 976.1, part II of this opinion is not certified for publication.
[2] Unless otherwise indicated, all further section references are to the Penal Code.
[3] Former section 1103a was repealed in 1989 and reenacted as section 118, subdivision (b). (Stats. 1990, ch. 950, § 2, p. 4025; see Historical and Statutory Notes, 47 West's Ann. Pen.Code (1999 Supp. Pamphlet) foil. § 118, p. 54; People v. Alcocer (1991) 230 Cal.App.3d 406, 412 & fn. 2, 282 Cal.Rptr. 5.)
[*] See footnote 1, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262676/ | 238 P.3d 851 (2008)
ROMERO (CARLOS)
v.
STATE.
No. 52420.
Supreme Court of Nevada.
October 28, 2008.
Decision Without Published Opinion Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262700/ | 83 Cal.Rptr.2d 747 (1999)
71 Cal.App.4th 417
he PEOPLE, Plaintiff and Respondent,
v.
Gabriel Louis HERNANDEZ, Defendant and Appellant.
No. E021166.
Court of Appeal, Fourth District, Division Two.
April 14, 1999.
Rehearing Denied May 6, 1999.
Review Denied July 21, 1999.[**]
*748 Stuart A. Skelton, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Carl H. Horst, Supervising Deputy Attorney General, and Craig S. Nelson, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
OPINION UPON REMAND
RAMIREZ, P.J.
A jury convicted Gabriel Louis Hernandez of inflicting corporal injury upon a cohabitant (Pen.Code, § 273.5, subd. (a)), possessing methamphetamine (Health & Saf.Code, § 11377, subd. (a)) and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The jury further found that Hernandez had suffered two prior strike convictions. (Pen.Code, § 667, subds.(b)-(i).) He was sentenced to prison for two consecutive 25-year-to-life terms and appeals, claiming evidence was improperly *749 admitted and his trial counsel was incompetent. We reject his contentions and affirm.
FACTS
Hernandez and the victim had been married, divorced, reconciled and had been cohabiting for five years since reconciliation. At the time of trial, she was unavailable to be a witness. During the early morning hours of August 17, 1996, the victim called 911 from a convenience store, reporting that Hernandez had battered her. An officer arrived and she told him that Hernandez had "tripped out," accusing her of having an affair, and when she told him he was crazy, he got mad and wrestled her to the floor. When she got up, he hit her about eight times in the face. Hernandez then ordered her out of the apartment they shared.
The victim's eyes were swollen and bruised. Her left shoulder was scratched and red. The officer was unable to locate Hernandez at the couple's apartment that morning, but saw his car parked there early the following morning. The officer then went to the apartment, where the victim falsely told the officer that Hernandez was not present. However, she did consent to the officer entering to see if everything was all right. When the officer went into the bedroom, he found Hernandez lying on a mattress, holding a rolled up dollar bill. Under the mattress was a mirror containing methamphetamine. Hernandez appeared to be under the influence of the drug and testing of a urine sample taken from him at jail showed the drug in his system.
Hernandez told the officer that he had gotten into an argument with the victim over her alleged infidelity and he became very angry with her. He confronted the victim and hit her hard six times in the face because he was angry. He did not say that the victim had ever struck or assaulted him. He said he was embarrassed about the way her face looked. He had no injuries.
Hernandez took the stand at trial and claimed that it appeared as though a man had sneaked out of the couple's apartment after he arrived home from work late on August 16. When Hernandez accused the victim of "bringing her] business" into their home, the victim jumped on his back and began clawing him.[1] He knocked her off with his elbow. She fell back, scraping her back. When Hernandez attempted to put their son on the bed, she attacked him again, scratching his face. Hernandez shoved her to the floor. While she was on the ground, he hit her three or four times with his right hand.[2] He picked her up, they wrestled and he pushed her out the door.
Hernandez testified that the victim invited him to return to their apartment the morning the police found him there. He joined the victim in the bedroom where she obtained a dollar bill from him which she rolled up before snorting some drugs. When the officer knocked on the front door, she threw the rolled up bill on the floor near Hernandez. Hernandez saw the mirror bearing the drugs and he threw a blanket over it.
ISSUES AND DISCUSSION
1. Admission of the Victim's Statements
Before trial began, the prosecution moved to admit statements made by the victim to the police officer pursuant to Evidence Code section 1370.[3] That section provides:
"(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:
"(1) The statement purports to narrate, describe or explain the infliction or threat of physical injury upon the declarant.
*750 "(2) The declarant is unavailable as a witness pursuant to Section 240.
"(3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.
"(4) The statement was made under circumstances that would indicate its trustworthiness.
"(5) The statement was made in writing, was electronically recorded, or made to a law enforcement official.
"(b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following:
"(1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested.
"(2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.
"(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.
"(c) A statement is admissible pursuant to this section only if the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement."
The defense objected to admission of the statements, contending that Evidence Code section 1370 violated the confrontation and due process clauses of the Constitution and the right of counsel in that "it does not ... allow ... us to cross-examine the hearsay declarant about the events ... that resulted in the ... charges." The trial court granted the prosecution's motion, finding that Evidence Code section 1370 promotes an important public policy and assures the reliability of the statements, therefore, it does not violate the confrontation clause.
Hernandez here contests the trial court's ruling, arguing, first, that Evidence Code section 1370 denies due process because it provides no reciprocity. Hernandez waived this argument by not asserting it below. (See Evid.Code, § 353; People v. Mayfield (1997) 14 Cal.4th 668, 791, 60 Cal. Rptr.2d 1, 928 P.2d 485; People v. Rogers (1978) 21 Cal.3d 542, 548, 146 Cal.Rptr. 732, 579 P.2d 1048.) Moreover, it is meritless.
The only case Hernandez cites in support of his position is Wardius v. Oregon (1973) 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82. However, Wardius concerned a discovery statute that required the defense to notify the prosecution of alibi witnesses it intended to call, but it did not provide for the prosecution to notify the defense of any witnesses it intended to call to refute the alibi. The United States Supreme Court concluded that it was fundamentally unfair to force the defense to divulge the details of its case to the prosecution while subjecting the defense to the hazard of surprise concerning refutation of the very evidence it was obliged to disclose.
As the People correctly point out, Evidence Code section 1370 is not one-sidedit permits the defendant to utilize it to the same extent the People may. Also, as the People point out, in Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1082, 2 Cal. Rptr.2d 160, 820 P.2d 262, the California Supreme Court rejected an identical challenge to Penal Code section 872, which permitted probable cause findings for bindovers to be made on the basis of out-of-court statements related to experienced law enforcement officers. The high court said, "We find no similar unfairness here for, properly construed, the new hearsay statute contains no broad grant of authority to the prosecutor to rely on hearsay evidence. The section merely specifies a further, limited exception to the general hearsay exclusionary rule of Evidence Code section 1200, by allowing a probable cause finding to be based on certain hearsay testimony by law enforcement officers having specified experience or training. In light of the specialized nature of the exception, we see nothing fundamentally unfair in failing to provide some similar hearsay *751 exception favoring the defense. (Indeed, although we leave the question open, the new provision might be interpreted as permitting the defendant to call a law enforcement officer to relate statements which might rebut a finding of probable cause.) Defendants continue to enjoy the benefits of all preexisting hearsay exceptions." (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1082, 2 Cal. Rptr.2d 160, 820 P.2d 262, italics in original.)
Similarly, in People v. Brodit (1998) 61 Cal.App.4th 1312, 72 Cal.Rptr.2d 154, the California Court of Appeal rejected an identical challenge to similar provisions (which apply to declarations by child abuse victims), saying: "[W]e disagree with appellant's premise that the new hearsay exceptions may only be used to benefit prosecutors. Nothing in the statutes explicitly limits the hearsay exceptions to evidence which is inculpatory and, as we explain below, occasions may arise in which the defense may find it useful to introduce hearsay testimony under these new exceptions. [¶] ... [¶] Here, we do not perceive ... unfairness in [the provisions]. First, as we have noted, nothing in those sections limits the exception to `inculpatory' evidence. In fact, cases may frequently arise where the defense will find it useful to introduce evidence under these exceptions.... Thus, both the prosecution and defense may make use of these new exceptions to the hearsay rule. [Citation.] Contrary to appellant's assertion, [these provisions] do not create a one-way street in favor of the prosecution." (People v. Brodit, supra, 61 Cal.App.4th at pp. 1325-1326, 72 Cal.Rptr.2d 154; fns. omitted.)
Brodit also relied on Whitman to declare that even if the hearsay provisions there pertinent did create "a one-way flow of evidence in favor of the prosecution," they did not violate due process. (People v. Brodit, supra, 61 Cal.App.4th at p. 1326, 72 Cal. Rptr.2d 154.)
Hernandez provides no persuasive argument that the analysis in Whitman and Brodit should not apply here.
Next, Hernandez reiterates the argument he made below, that Evidence Code section 1370 violates the confrontation clause because the statements are admitted without the opportunity for cross-examination of the declarant. However, he admits that with a particularized guaranty of trustworthiness or adequate indicia of reliability, such statements may be admitted without violating the confrontation clause. (Ohio v. Roberts (1980) 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597.) Alternatively, statements admitted under a firmly rooted exception to the hearsay rule do not violate the confrontation clause. (Idaho v. Wright (1990) 497 U.S. 805, 816, 818, 110 S.Ct. 3139, 111 L.Ed.2d 638.)
The People correctly assert that Evidence Code section 1370 is similar to the hearsay exception for spontaneous statements,[4] which is firmly rooted. (See, e.g., People v. Sully (1991) 53 Cal.3d 1195, 283 Cal.Rptr. 144, 812 P.2d 163; People v. Gallego (1990) 52 Cal.3d 115, 276 Cal.Rptr. 679, 802 P.2d 169; People v. Farmer (1989) 47 Cal.3d 888, 254 Cal.Rptr. 508, 765 P.2d 940.) Additionally, Evidence Code section 1370 contains particularized guarantees of trustworthiness and adequate indicia of reliability by requiring the statement to be made (1) at or near the time of the incident (similar to a spontaneous declaration) by a person who experienced the incident, firsthand, (2) under circumstances indicating its trustworthiness, including[5] whether it had been made in contemplation *752 of litigation, whether the declarant had a bias or motive to fabricate and whether it is corroborated by other evidence not admissible under Evidence Code section 1370 and (3) to have been recorded in writing or electronically, or to have been made to a police officer (who normally makes a written report of such statements).[6] (See People v. Gallego, supra, 52 Cal.3d at pp. 176-177, 276 Cal.Rptr. 679, 802 P.2d 169.) While we agree with Hernandez that, under Idaho v. Wright, supra, 497 U.S. at 829, 110 S.Ct. 3139, corroboration by other evidence is not a legitimate component of trustworthiness, its presence in Evidence Code section 1370 does not render the statute unconstitutional because the section still requires the essential indicia of trustworthiness and it suggests other legitimate factors which may establish that. Absent a case where the trial court relied heavily upon the presence of corroborating evidence in making its determination that the statement bears indicia of reliability, the confrontation clause would not be violated. Therefore, we cannot agree with Hernandez that Evidence Code section 1370 violates the confrontation clause.
Finally, Hernandez contends that even if Evidence Code section 1370 is constitutional, the trial court here abused its discretion in admitting the statements because they did not bear sufficient indicia of reliability. However, Hernandez ignores the fact that he failed to object to the statements below on this ground, and, therefore, he waived any such objection. (See Evid.Code, § 353; People v. Mayfield, supra, 14 Cal.4th at p. 791, 60 Cal.Rptr.2d 1, 928 P.2d 485; People v. Rogers, supra, 21 Cal.3d at p. 548, 146 Cal.Rptr. 732, 579 P.2d 1048.) Moreover, he is incorrect.
In arguing below that the statements should be admitted under Evidence Code section 1370, the prosecutor asserted that there were no circumstances suggesting the victim had a motive to lie, that she had been involved with Hernandez for 15 years, including having been married to him, having had his child and having resumed a relationship with him after they had been divorced. Additionally, the victim was upset and crying when she made the statements and made them to obtain help rather than to "connive." Finally, there existed corroboration for the statements in the form of the victim's recorded 911 call, which was admissible as a spontaneous statement, the admission of Hernandez that he punched the victim several times in the face and two sets of photographs of the victim, documenting her injuries. Hernandez did not dispute any of these representations below.
The trial court agreed with the prosecutor, finding there was sufficient indicia of reliability in "... [the prosecutor's] offer of proof [that] there is no indication of bias by the victim who is now deceased [and] the physical injuries that were photographed as well as statements made by the defendant himself."[7]
After his silence on the subject below, Hernandez now points to facts, adduced at trial after the motion was heard, indicating that the statement was rendered under circumstances indicating it was not trustworthy. He is too late. We may assess the trial court's ruling only on the facts made known to it at the time it made that ruling. (See People v. Barnard (1982) 138 Cal.App.3d 400, 405, 188 Cal.Rptr. 176; In re James V. (1979) 90 Cal.App.3d 300, 304, 153 Cal.Rptr. 334.) To do otherwise would require us to hold the trial court to an impossible standard. At the time this motion was decided, Hernandez pointed to no facts which would undermine the trustworthiness of the victim's statements. Therefore, we cannot conclude that the trial court abused its discretion, that is, acted unreasonably, in admitting the statements.
*753 2. Incompetency of Counsel[***]
DISPOSITION
The judgment is affirmed.
WARD and GAUT, JJ, concur.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part 2.
[**] Mosk and Kennard, JJ., dissented.
[1] The officer, however, did not testify that Hernandez told him this. Contrary to the officer's testimony, Hernandez testified that the officer noticed the scratches on his back and face.
[2] He contradicted the officer's testimony that he admitted to him that he hit the victim about six times. He also asserted that he had not told the officer that he hit the victim because he was angry at her. However, he did admit on the stand that he became angry with the victim when she began attacking him.
[3] Unfortunately, a copy of the People's motion in this regard was not made part of the record on appeal.
[4] That exception is governed by Evidence Code section 1240, which provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
[5] The statute provides: "For purposes of [the requirement that the statement was made under circumstances that would indicate its trustworthiness]... circumstances relevant to the issue of trustworthiness include, but are not limited to, the following: [¶] (1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested. [¶] (2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive. [¶] (3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section." (Evid.Code, § 1370, subd. (b).)
[6] It cannot be ignored that a police officer is generally a neutral and detached party and that making a false report to an officer is a violation of the law.
[7] Hernandez does not assert that the trial court would have ruled differently had it not relied on the corroborating evidence. Indeed, the prosecutor's statement of valid factors indicating trustworthiness provided a sufficient basis for admission.
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262741/ | 83 Cal.Rptr.2d 702 (1999)
71 Cal.App.4th 268
Mansour SHAOLIAN et al., Plaintiffs and Appellants,
v.
SAFECO INSURANCE COMPANY, Defendant and Respondent.
No. B118385.
Court of Appeal, Second District, Division Five.
April 9, 1999.
Rehearing Denied May 5, 1999.
*703 Wasserman, Comden & Casselman and Gary S. Soter, Tarzana, for Plaintiffs and Appellants.
LaTorraca and Goettsch, Raymond H. Goettsch and Teresa Cho, Los Angeles, for Defendant and Respondent.
GODOY PEREZ, J.
Plaintiff Mehdi Sina-Khadiv and plaintiffs Mansour Shaolian and Rahel Shaolian, both in their individual capacities and as successors in interest to Ramtin Shaolian, appeal from the order sustaining without leave to amend the demurrers of defendant Safeco Insurance Company and the concomitant order dismissing the first amended complaint as to Safeco. For the reasons set forth below, we affirm.
FACTS AND PROCEDURAL HISTORY
On the night of June 9, 1995, while walking in the parking lot of a West Hills shopping mall, Ramtin Shaolian (Ramtin) was killed and plaintiff and appellant Mehdi Sina-Khadiv (Sina-Khadiv) was injured by gunfire coming from a passing car. Several persons were inside that car, including defendant Jennifer Akbar. A complaint was eventually filed against those involved in the shooting by Sina-Khadiv and by Ramtin's parents, plaintiffs and appellants Mansour and Rahel Shaolian (the Shaolians).[1]
Appellants later determined that Jennifer Akbar's parents, Jim and Peggy Akbar (the Akbars), were covered under a homeowners insurance policy provided by defendant and respondent Safeco Insurance Company (Safeco). At issue here is a medical coverage provision which obligated Safeco to pay the medical or funeral expenses incurred by third parties who were injured in connection with the insureds' activities. When appellants demanded payment for such expenses, Safeco refused, contending that its obligation to pay was conditioned on a finding that Jennifer Akbar had been at fault in the shootings. In their operative first amended complaint, appellants sued Safeco in the seventh, eighth and ninth causes of action respectively, for breach of contract, breach of the implied covenant of good faith and fair dealing, and on behalf of the general public for Safeco's alleged unfair business practices in connection with handling their claim and others. (Bus. & Prof.Code, § 17200.)
Safeco demurred to those three causes of action on several grounds, the dispositive one for our purposes being that appellants lacked standing to sue until Jennifer Akbar's liability for the shootings had been adjudicated against her. On November 12, 1997, the trial court sustained Safeco's demurrers without leave to amend and an order dismissing the first amended complaint as to Safeco was entered December 3, 1997. Appellants' later motion for reconsideration was denied December 22, 1997. This timely appeal followed.
STANDARD OF REVIEW
In reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, we must assume the truth of all facts properly pleaded by the plaintiff-appellant. Regardless of the label attached to the cause of action, we must examine the complaint's factual allegations to determine whether they state a cause of action on any available legal theory. Reversible error is committed if the facts alleged show entitlement to relief under any possible legal theory. (Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1119-1120, 66 Cal.Rptr.2d 337.)
We will not, however, assume the truth of contentions, deductions or conclusions of fact or law and may disregard allegations that are contrary to the law or to a fact of which *704 judicial notice may be taken. When a ground for objection to a complaint, such as the statute of limitations, appears on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper. (Code Civ. Proc., § 430.30, subd. (a); Cochran v. Cochran, supra, 56 Cal.App.4th at p. 1120, 66 Cal.Rptr.2d 337.) We may take judicial notice of the records of a California court. (Evid.Code, § 452, subd. (d).) We must take judicial notice of this state's decisional and statutory law. (Evid.Code, § 451, subd. (a).)
DISCUSSION
Because the insurer's duties flow to its insured alone, a third party claimant may not bring a direct action against an insurance company. As a general rule, a third party may directly sue an insurer only when there has been an assignment of rights by, or a final judgment against, the insured. (Ins. Code, § 11580, subd. (b)(2); Harper v. Wausau Ins. Co. (1997) 56 Cal.App.4th 1079, 1086, 66 Cal.Rptr.2d 64, hereafter Harper.) We held in Harper that the medical coverage provisions of a commercial general liability policy conferred third-party beneficiary rights upon someone injured on the insured's property, thus permitting that third party to directly sue the insurer when it refused to pay those benefits. Appellants contend that Harper applies here and mandates reversal of the demurrer. Safeco contends that the terms of its medical coverage provision are sufficiently different from those at issue in Harper as to make that decision both distinguishable and inapplicable.
The liability policy at issue in Harper stated that the insurer would pay medical expenses for bodily injury caused by an accident on or adjacent to the insured's premises or because of its operations "regardless of fault." A woman who slipped and fell on the insured's premises sued the insurer directly under that provision. The trial court granted the insurer summary judgment under the general rule precluding direct actions against insurers by third-party claimants. Applying general contract law principles, we held that the plaintiff was a third-party beneficiary of the medical coverage provision who was entitled to sue directly to enforce her rights. (Id. at pp. 1086-1091, 66 Cal.Rptr.2d 64.)
In doing so, we discussed in general the nature and purposes of medical coverage provisions contained in liability policies, quoting from one insurance law commentator that it was "... `a form of minimal group accident insurance provided at minimal cost with a named insured as the entity through whom the coverage is issued.... [¶] Generally, medical payment clauses are considered to constitute separate accident insurance coverage. Such coverage is divisible from the remainder of the policy, and creates a direct liability to the contemplated beneficiaries. The purpose is to grant peace of mind and create a fund for the payment of medical services so that those injured will not necessarily be contemplating how to impose liability upon the insured. And, with this in mind, a broad and liberal interpretation will be given. [H] Such provision is the separate obligation of the insurer, independent of its obligation to pay sums of money as damages under the liability features of the contract. It has no relevance to the financial responsibility law. Nor is liability for such payment in any way dependent upon negligence of the insured....' [Citation.]" (Harper, supra, 56 Cal.App.4th at pp. 1089-1090, 66 Cal. Rptr.2d 64, quoting 8A, Appleman & Appleman, Insurance Law and Practice (1981) § 4902, pp. 228-230, fns. omitted, hereafter Appleman.)
Relying heavily on the above quoted portion of Harper, appellants contend that the medical coverage provision in the Akbars' policy conferred upon them third-party beneficiary status. Appellants' analysis fails to consider the key distinguishing factor between the medical coverage provision at issue in Harper and the one before us now that in Harper, the insurer was expressly obligated to pay a third person's medical expenses without regard to fault.
Because the coverage provision in Harper "specifically states the defendant will pay `without regard to fault,'" we held that the provision was not one for liability but was instead "a direct and separate obligation in the policy to pay the medical expenses of persons injured on its insured's property." *705 That made the plaintiff an intended thirdparty beneficiary of the medical coverage provision as a "member of the class of persons protected under the policy." (Harper, supra, 56 Cal.App.4th at p. 1091, 66 Cal. Rptr.2d 64.)
In so holding, we also quoted Appleman for the proposition that the insurer "`... may limit the class of persons to whom such coverage is applicable.' [Citation.]" (Harper, supra, 56 Cal.App.4th at p. 1091, 66 Cal.Rptr.2d 64, quoting Appleman, supra, § 4902.5, pp. 232-233.) Not quoted by us at the time was a portion of the same paragraph in which Appleman noted that the "insurer may also limit coverage so as to make it inapplicable to activities away from the premises or as to persons not on the premises, if not injured by an act of the insured." (Appleman, supra, § 4902.5, p. 233.) That is precisely the case with the medical coverage provision in the Akbars' policy with Safeco, at least in regard to injuries occurring away from the Akbars' home.
The medical coverage provision in the Akbars' policy states'. "We will pay the necessary medical expenses incurred or medically ascertained within three years from the date of an accident causing bodily injury.... [T]his coverage applies only: [¶] 1. to a person on the insured location with the permission of an insured; or [¶] 2. to a person off the insured location, if the bodily injury: [¶] a. arises out of a condition on the insured location or the ways immediately adjoining; [¶] b. is caused by the activities of an insured; [¶] c. is caused by a residence employee in the course of the residence employee's employment by an insured; or [¶] d. is caused by an animal owned by or in the care of an insured." No reported California decisions have construed such language in the context of medical coverage provisions, but two sister-state decisions have considered the rights of injured third parties to recover their medical expenses under policies with virtually identical language.
The court in Dodge v. Allstate Insurance Co. (1967) 89 Ill.App.2d 405, 233 N.E.2d 100 (hereafter Dodge), affirmed a summary judgment for an insurer which had been sued under the medical coverage provision of its insureds' homeowner policy. That coverage applied to injuries sustained away from the premises which were caused by the activities of an insured. The plaintiffs were guests at a skating party given by the insureds at a public park some distance from their home. Plaintiffs were injured on the ice and sought reimbursement of their medical expenses from the insurer. The Illinois appellate court affirmed summary judgment for the insurer, first holding that the policy language was not ambiguous and that the term "caused by the activities of the insured" must be given its ordinary, commonsense meaning. The plaintiffs did not claim that their injuries were the result of any specific acts of the insured and they were therefore not entitled to payment under the policy because their injuries were not caused by the insureds or their party. (Id. at pp. 406-408, 233 N.E.2d 100.)
The plaintiff in Daigle v. Goodwin (La. App.1975) 311 So.2d 921 (hereafter Daigle), was the father of an eight-year-old boy who had been shot in the eye with a BB rifle. The rifle belonged to an 11-year-old boy, but had been fired by a 12-year-old boy to whom the weapon had been loaned. The injured boy's father sued the father of the 11-year-old boy, along with the father's homeowners insurer, seeking recovery of his child's medical expenses under the policy's medical coverage provision. Judgment for the plaintiff was reversed on appeal because the medical coverage applied to off-premises injuries caused by an insured, but the injuries sustained were caused by the 12-year-old boy, who was not an insured under the policy obtained by the father of the 11-year-old. (Id. at p. 924.)
The common thread running between Dodge and Daigle is the requirement of some determination that there was a causative relationship between the injuries sustained and the conduct of an insured. In short, the insured must have somehow been at fault for the injuries. Applying traditional rules of contract interpretation to the medical coverage provision at issue here, we follow Dodge and Daigle and hold that the same requirement applies to the Akbars' policy with Safeco *706 for injuries sustained away from their home.
For injuries sustained at the Akbars' home, their policy provided medical coverage without limitation. For injuries off the premises, however, the coverage contains various causative restrictions. The injury must arise out of a condition on the insured location, or be caused by the activities of the insured, their employees, or animals in their care. Safeco has therefore limited its obligation to pay the medical expenses of third persons injured away from the Akbars' home to injuries which were caused by the activities of an insured. (See Appleman, supra, § 4902.5, pp. 232-233 [insurer may limit the class of persons to whom such coverage is applicable and may also limit coverage so as to make it inapplicable to activities away from the premises or as to persons not on the premises, if not injured by an act of the insured].)
Unlike Harper, the Akbars' policy does not provide coverage without regard to fault when a third person is hurt away from the Akbars' home. As a result, third persons such as appellants are not intended beneficiaries of the medical coverage provision and must await a final judgment against Jennifer Akbar before making a claim for benefits under that provision. (Ins.Code, § 11580, subd. (b)(2); Harper, supra, 56 Cal.App.4th at p. 1086, 66 Cal.Rptr.2d 64.) At a minimum, the policy's use of language imposing a causative restriction on the payment of those benefits raises a doubt whether appellants are third-party beneficiaries of the medical coverage provision. We must construe that doubt against making appellants third-party beneficiaries. (Rupley v. Huntsman (1958) 159 Cal.App.2d 307, 312, 324 P.2d 19 [the California rule is that the intent to make a third party a beneficiary of coverage under an insurance policy must clearly appear; the policy should be construed against finding such an intent if there is any doubt].)
Not only does this holding dispose of the seventh and eighth causes of action against Safeco for breach of contract and breach of the implied covenant of good faith and fair dealing, it also applies to the ninth cause of action for injunctive and restitutionary relief for unfair business practices. (Bus. & Prof. Code, § 17200.)
Unfair competition consists of any unlawful, unfair, or fraudulent business act or practice. (Bus. & Prof.Code, § 17200.) Actions for injunctive relief to stop such conduct and for restitution to force disgorgement of unlawfully obtained profits are permitted. (Bus. & Prof.Code, § 17203.) Any private person, whether damaged or not by such conduct, may sue on his own behalf or on behalf of the general public. (Bus. & Prof.Code, § 17204.) Appellants' ninth cause of action for unfair competition begins by incorporating all previous allegations, including those against the persons involved in the shooting, and those against Safeco. Safeco was sued for breach of contract and breach of the implied covenant for having refused to pay under the medical coverage provision on the basis that Jennifer Akbar was not at fault in the shooting.
The unfair competition claim then alleges that Safeco issued thousands of homeowners policies which provided medical expense coverage to those injured on an insured's premises and. to persons injured away from the premises when caused by an insured's activities. Safeco allegedly received thousands of claims from injured persons, denominated as claimants, for coverage under those provisions. Safeco allegedly concealed the medical coverage provision from the claimants, knew the claimants would not have possession of the homeowners policies and would thus be unaware such coverage existed, and intentionally withheld payments due under the medical coverage provisions. That conduct amounted to unfair competition under Business and Professions Code section 17200, appellants alleged.
Most of the argument about this cause of action has focused on whether appellants were trying to evade the restrictions against suing under Insurance Code section 790.03, subdivision (h) for a violation of the insurer's claims handling duties. (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 250 Cal.Rptr. 116, 758 P.2d 58.) We affirm based on another point raised by Safeco's demurrerthat appellants failed to *707 state a cause of action because appellants have neither standing, a right of recovery, nor a basis for a direct action against Safeco. (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808, 50 Cal.Rptr.2d 736 [we must affirm if the trial court's ruling was correct on any applicable theory].)
The essence of the unfair competition claim is Safeco's concealment of or refusal to pay medical coverage benefits until and unless a claimant obtained a judgment against the insured or otherwise gained standing by proving the insured was at fault. Appellants characterize the issue just this way in their opening brief. Furthermore, their unfair competition cause of action must have had some factual relationship to their own claims against Safeco. If not, the joinder of the unfair competition claim with the others would have been improper. (Code Civ. Proc., § 379, subd. (a)(1) [permissive joinder of defendants proper so long as the right to relief asserted was joint or several and arose out of the same transactions or occurrences and presented common questions of law and fact].)
Since we have held that persons who were injured away from an insured's premises must prove an insured caused their injuries, thus precluding their status as third-party beneficiaries under the medical coverage provisions, Safeco's conduct in regard to such persons, as alleged in the ninth cause of action, did not constitute a violation of the unfair competition laws. (Harper, supra, 56 Cal.App.4th at p. 1086, 66 Cal.Rptr.2d 64 [third-party claimants may not bring direct actions against insurers because the insurer's duties flow only to the insured].) To the extent appellants might contend their cause of action extended to persons injured on an insured's premises, who would be third-party beneficiaries of the medical coverage provision, the demurrer would have been properly sustained on the grounds of misjoinder, since the removal of appellants' contract law causes of action would leave such a claim standing entirely on its own, unconnected to any issues raised in the remainder of the complaint.[2]
Appellants' final contention is that the court erred in denying their motion for reconsideration, based on the fact that their lawyer was late for the hearing and thus unable to argue on their behalf, and on their belief that the trial court did not consider Harper in making its ruling. Given our holding that Harper in fact precludes their causes of action against Safeco at this time, even if it were error to deny the motion for reconsideration, the error was harmless.
DISPOSITION
For the reasons set forth above, the order sustaining Safeco's demurrers to the seventh, eighth and ninth causes of action in appellants' first amended complaint, and the concomitant order dismissing that complaint as to Safeco, along with the order denying appellants' motion for reconsideration, are each affirmed. Respondent Safeco to recover its costs on appeal.
GRIGNON, Acting P.J., and ARMSTRONG, J., concur.
NOTES
[1] The Shaolians sued in both their individual capacities and as Ramtin's successors in interest. We will refer to the Shaolians and Sina-Khadiv collectively as "appellants." Other persons in the car were also named as defendants, including the shooterTommy Lee Williamsand Elliott O'Neal Singletary, Yael Oved and Shameka Randle. Neither Akbar nor any of those other defendants are parties to this appeal. Appellants allege that Jennifer Akbar conspired with or otherwise negligently assisted in the shooting.
[2] Misjoinder was also raised as a ground for Safeco's demurrer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329317/ | 107 S.E.2d 297 (1959)
249 N.C. 549
CITY OF SALISBURY
v.
M. C. BARNHARDT, M. C. Barnhardt, Jr.; T. P. Shinn and Salisbury Marble & Granite Company, Inc.
No. 523.
Supreme Court of North Carolina.
February 25, 1959.
J. W. Ellis and John C. Kesler, Salisbury, for plaintiff.
Walser & Brinkley, Lexington, Craige & Craige, Salisbury, for defendants.
DENNY, Justice.
In the hearing below no exceptions were taken to the admission of evidence or to the facts as found by the court. Hence, such findings are presumed to be supported by competent evidence and are binding on appeal. City of Goldsboro v. Atlantic Coast Line R. Co., 246 N.C. 101, 97 S.E.2d 486, and cited cases. The exception to the signing of the judgment, however, presents these questions: (1) Do the facts found support the judgment; and (2) does any error of law appear upon the face of the record? City of Goldsboro v. Atlantic Coast Line R. Co., supra; Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592; Gibson v. Mfrs' Mut. Insurance Co., 232 N.C. 712, 62 S.E.2d 320.
*300 The defendants' property, conveyed to them as lots 4 and 5, as laid out on the Harrison map hereinabove described, abuts on South Main Street for a distance of 120 feet. The new street opened in 1916 from South Main Street at its intersection with Vance Street through property owned by the plaintiff City to Fulton Street, left an unimproved area of the street in front of lots 4 and 5 two feet wide at the intersection with Vance Street and 14 feet wide at the southwestern corner of lot 5, this area being wholly within the boundaries of South Main Street as laid out on the aforesaid map. When the new street was opened and designated South Main Street in 1916, the street shown on the Harrison map, south of Vance Street, became known as Old South Main Street. It has never been closed or abandoned but has been used continuously as a public street. However, traffic has been diverted from Old South Main Street into the new portion of South Main Street around the area or triangle in controversy. If Old South Main Street is improved and paved as contemplated, the City must utilize the area in controversy, otherwise this triangle will jut out into the street at the intersection with Old South Main Street with the new portion of South Main Street as constructed in 1916.
The defendants stipulated that no deed conveying lots 4 and 5 from the original subdivider or any mesne conveyances in their chain of title, including the last one dated 2 February 1957, included the strip of land in controversy or any portion thereof. Consequently, the defendants claim no paper title to the area involved in this action.
It was further stipulated and found as a fact in the hearing below that no part of the street shown on the aforesaid map has ever been withdrawn by the dedicator, nor by any one claiming under him, pursuant to G.S. § 136-96, nor has said street or any portion thereof been closed pursuant to G.S. § 153-9(17).
Moreover, G.S. § 1-45 provides as follows: "No person or corporation shall ever acquire any exclusive right to any part of a public road, street, lane, alley, square or public way of any kind by reason of any occupancy thereof or by encroaching upon or obstructing the same in any way, and in all actions, whether civil or criminal, against any person or corporation on account of an encroachment upon or obstruction or occupancy of any public way it shall not be competent for a court to hold that such action is barred by any statute of limitations."
Exceptions to this statute have been recognized in at least two situations: (1) where a street has been dedicated and the municipality never accepted the dedication; and (2) where the dedicated street or streets, if accepted, had been abandoned. Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664, and cases cited therein.
In our opinion, on the facts found below, there is no evidence on this record to support the view that in opening the new street in 1916, which is now known as South Main Street, constituted a relocation of the street shown on the map referred to herein, or that it constituted an abandonment of any portion thereof. The cases of Moore v. Meroney, 154 N.C. 158, 69 S.E. 838 and Cahoon v. Roughton, 215 N.C. 116, 1 S.E.2d 362, cited by the appellants, are not controlling on the facts in this case.
When a street has been dedicated and a municipality has opened it, and it has been used continuously for many years, although the use may not have extended to the full width of the street, the unused portion has not by reason of nonuser lost the character of a street for which it was originally dedicated. Home Real Estate Loan & Insurance Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13; Spicer v. City of Goldsboro, 226 N.C. 557, 39 S.E.2d 526.
*301 In 25 Am.Jur., Highways, section 112, page 410, et seq., it is said: "Abandonment will not ordinarily be implied from mere nonuser when the public need has not required the use. Statutes in some states provide that roads not worked or used for a specified number of years cease to be highways, or that the entire abandonment of a highway for a specified number of years shall work a discontinuance thereof, but the mere diversion of travel from a small portion of the way which the public authorities have failed to make passable will not work a discontinuance thereof under such a provision, even though continued for the statutory period. Some courts hold that a marginal portion of a street or highway may be lost by nonuser. Others, however, take the position that mere nonuser of a portion of the width of the way will not work an abandonment of the public rights therein; that if the way is originally laid out as of a certain width, the public is entitled to a way of that width, notwithstanding the worked part and the part actually used by travelers may have been less than that; and that the traveled path may also from time to time be widened or otherwise improved, as the growing necessities of the public may require, within the limits of the way as originally laid out."
It is also said in 26 C.J.S. Dedication § 63 b, p. 556: "The fact that a municipality improves or directs improvement of part only of the property dedicated does not constitute an abandonment of the balance; and it has similarly been held that the public use of only a part of land dedicated for a public highway does not constitute an abandonment of the unused portion. Even nonuser of a portion of a street, fenced in with abutting property, has been held not to constitute an abandonment of the street by the public."
Likewise, in 39 C.J.S. Highways § 131 b, p. 1068, we find the following statement: "If a highway is legally laid out and established, the mere fact that the public does not use it to its entire width will not of itself constitute an abandonment of any portion thereof. The rule is the same whether or not the road is fenced by the adjoining landowners. Encroachments on a highway continually used cannot be legalized by mere lapse of time; the limited use will not lessen the right of the public to use the entire width of the road whenever the increased travel and exigencies of the public render this desirable."
In Sipe v. Alley, 117 Va. 819, 86 S.E. 122, 123, the defendant had enclosed part of a public street with a fence and this condition had existed for a long period of time. In holding that this was not an abandonment of the street or of the enclosed portion thereof, the Supreme Court of Appeals of Virginia said: "Delay in opening a street is not an abandonment thereof, except so far as statutory or charter provisions fix a rule to the contrary. Nor is a mere nonuser of a portion of a street fenced in with abutting property an abandonment of the street by the public. Some private use of the public way is not infrequently accorded abutting owners until the public use requires its surrender. Town of Basic City v. Bell, 114 Val. 157, 76 S.E. 336."
In the case of Kelroy v. City of Clear Lake, 232 Iowa 161, 5 N.W.2d 12, 20, the Court said: "It has been held many times that the fencing in of a street or the planting of trees, shrubs, flowers and grass are not such permanent improvements as work an estoppel, even though the city does not complain. Kuehl v. Town of Bettendorf, 179 Iowa 1, 8, 9, and citations, 161 N.W. 28; Christopherson v. Incorporated Town of Forest City, 178 Iowa 893, 898, 901, 160 N.W. 691."
The facts as found in the hearing below do not disclose any affirmative acts on the part of the plaintiff that in our opinion misled these defendants or that would justify the conclusion that the plaintiff had abandoned the area of land in controversy, and we so hold.
*302 We further hold that the facts in this case are not of the character that would justify holding that the defendants are entitled to prevail under the doctrine of equitable estoppel. The fact that the defendants saw fit to construct an attractive, ornamental wall instead of an ordinary, or an ornamental, fence enclosing the area in controversy will not be construed to be such an improvement that its removal will constitute an injustice to these defendants. They knew for many years prior to the time they constructed the wall exactly where their lines were with respect to the street and that they were constructing the wall within the boundaries of the street as laid out on the Harrison map. McQuillen, Municipal Corporations, Vol. 11, section 30.181, page 98, et seq. The facts in this case are clearly distinguishable from those in Lee v. Walker, supra.
25 Am.Jur., Highways, section 115, page 413, et seq., states: "* * * to constitute an estoppel against the public the acts relied on must be such as to work a fraud or injustice if the public is not held to be estopped. Obviously, one who knowingly encroaches upon a highway is not within the protection of the rule. If the boundaries are fixed by a recorded map, subsequent purchasers of lots abutting thereon are charged with notice thereof, and the fact that they purchase under the impression that a fence encroaching on the street is on the boundary line thereof will not affect the public rights, provided the municipality has done nothing to mislead them."
Moreover, the fact that lots 4 and 5 were assessed for the improvements made in 1916 does not constitute an estoppel, it rather confirms the fact that the City claimed the land now in controversy as property dedicated for street purposes. Anderson v. Town of Albemarle, 182 N.C. 434, 109 S.E. 262, 264.
In the last cited case, this Court, speaking through Clark, C. J., said: "Land need not necessarily abut directly on the part of the street that has been improved to subject it to liability for its share of the cost of improvement. Indeed, premises separated from a street by a small stream, but having access to the street by means of bridges, are premises abutting on the street, though the owner of the premises is not the owner of the bed of the stream, and he is liable to assessment provided he has the right of ingress and egress over the intervening land to the improvement." Cf. City of Winston-Salem v. Smith, 216 N.C. 1, 3 S.E.2d 328 and In re Resolutions Passed by the City Council of the City of Durham (In re Assessments), 243 N.C. 494, 91 S.E.2d 171.
The judgment of the court below is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329338/ | 107 S.E.2d 757 (1959)
249 N.C. 747
L. W. WALL and wife, Louise Wall,
v.
Wendell TROGDON and Trogdon Flying Service, Inc.
No. 524.
Supreme Court of North Carolina.
March 25, 1959.
Miller & Beck, John Randolph Ingram, Asheboro, for plaintiffs-appellants.
Walker & Melvin, Greensboro, for defendants-appellees.
*761 WINBORNE, Chief Justice.
It is seen that plaintiffs undertake to ground their alleged cause of action on (1) trespass and (2) actionable negligence. Even so, when the evidence shown in the record of case on appeal is taken in the light most favorable to plaintiffs, and giving to them the benefit of every reasonable inference therefrom, the case in both aspects is left in a state of uncertainty and rests upon possibility.
First, in respect to trespass, it is noted that the General Assembly of 1929 passed an act, Chapter 190, entitled "An Act Concerning Aeronautics and the Regulation of Aircraft, Pilots and Airports," Section 2 (G.S. § 63-11) of which in pertinent part reads: "Sovereignty in space above the lands and waters of this State is declared to rest in the State, except where granted to and assumed by the United States"; and Section 3, G.S. § 63-12, "The ownership of the space above the lands and waters of this State is declared to be vested in the several owners of the surface beneath, subject to the right of flight described in section four."
And in Section 4 of the 1929 Act, now G.S. § 63-13, pertaining to lawfulness of flight, the General Assembly further declared: "Flight in aircraft over the lands and waters of this State is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath * * *."
This section has been amended in Chapter 1001, Session Laws 1947 by inserting after the word "be" and before the word "imminently" the following words: "injurious to the health and happiness, or."
So that it is now lawful for aircraft to fly over the lands and waters of this State, "unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be injurious to the health and happiness, or imminently dangerous to persons or property lawfully on the land or water beneath * * *." (Emphasis supplied.)
It is, therefore, clear that an aircraft can lawfully fly over the land and water of this State, unless done in violation of the provisions of G.S. § 63-13, set forth above. The burden of proof is upon the one asserting such violation. And when testing the sufficiency of the proof the causal connection is deficient.
As to actionable negligence: In an action for recovery of damages for injury resulting from actionable negligence, the plaintiff must show: First, that there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which he owed plaintiff under the circumstances in which they were placed; and, Second, that such negligent breach of duty was the proximate cause of the injurya cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under the facts as they existed. See Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406, and cases cited. Indeed there must be legal evidence of every material fact necessary to support a verdict, and the verdict "must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities." 23 C.J. 51, 32 C.J.S. Evidence § 1042; State v. Johnson, 199 N.C. 429, 154 S.E. 730; Denny v. Snow, 199 N.C. 773, 155 S.E. 874; Shuford v. Scruggs, 201 N.C. 685, 161 S.E. 315; Rountree v. Fountain, 203 N.C. 381, 166 S.E. 329; Allman v. Southern R. Co., 203 N.C. 660, 166 S.E. 891; Cummings v. Atlantic Coast Line R. Co., 217 N.C. 127, 6 S.E.2d 837; Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661, and numerous other later cases.
*762 If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed.
In the light of these principles applied to the evidence in the case there is no causal connection between the death of the fish in the lakes and the operation of the aircraft.
In the first place there is no evidence as to elements constituting the spray used in spraying the crops. If there were poison in the spray there is no evidence that it was poisonous to fish. If it were poisonous to fish there is no evidence that the fish died from the poison. Whatever the oily substance seen on the waters of one of the lakes was, there is no evidence as to what it was, or the source from which it came. The testimony of the expert fishery biologist is purely speculative, and founded on possibilities. Indeed the element of proximate cause is missing.
Actionable trespass to land is not made out by merely showing that defendant's airplane crossed the air spaces above it at a low level. Plaintiff must show that such flight was "at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water is put by the owner," or that such flight was "so conducted as to be injurious to the health and happiness, or imminently dangerous to persons or property lawfully on the land or water beneath." Nor is actionable trespass to land made out by merely showing that in crossing the air space above the land a liquid streamed from the airplane, without showing that such liquid made an entry upon the lands or waters of the plaintiff, i. e., landed on plaintiffs' property rather than somewhere else.
Other assignments of error are not discussed, nor is there citation of authority in brief filed in this Court. Hence they are deemed abandoned. See Rule 28 of the Rules of Practice in Supreme Court.
The judgment as of nonsuit is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329097/ | 594 S.E.2d 732 (2004)
265 Ga. App. 530
The STATE
v.
CHUN.
No. A04A0343.
Court of Appeals of Georgia.
February 11, 2004.
Certiorari Denied May 24, 2004.
Gwendolyn R. Keyes, Solicitor-General, Andrew R. Fiddes, Asst. Solicitor-General, for appellant.
*733 Head, Thomas, Webb & Willis, Gregory A. Willis, Atlanta, for appellee.
ELLINGTON, Judge.
On March 23, 2003, a DeKalb County police officer arrested Jeana Pan Chun for speeding, OCGA § 40-6-181, and driving under the influence of alcohol to the extent that it was less safe to drive, OCGA § 40-6-391(a)(1). Prior to trial, Chun filed a motion in limine to exclude the evidence that she refused to submit to State-administered chemical testing. The trial court granted Chun's motion after concluding that the arresting officer gave "technically correct" but misleading information in addition to the implied consent notice which impaired Chun's ability to decide whether to submit to testing. The State of Georgia appeals from the trial court's order. Because we find no substantial basis for the trial court's ruling, we reverse.
"Where the evidence at a hearing on a motion in limine is uncontroverted, and no issue exists regarding the credibility of witnesses, we review the trial court's ruling to ensure that there was a substantial basis for it. The trial court's application of the law to the undisputed facts is subject to de novo review." (Citations and punctuation omitted.) State v. Terry, 236 Ga.App. 248, 249, 511 S.E.2d 608 (1999). "The determinative issue with the implied consent notice is whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing." (Citation and punctuation omitted.) Leiske v. State, 255 Ga.App. 615, 617(2), 565 S.E.2d 925 (2002). Even when the officer properly gives the implied consent notice, if the officer gives additional, "deceptively misleading information" that impairs a defendant's ability to make an informed decision about whether to submit to testing, the defendant's test results or evidence of his refusal to submit to testing must be suppressed. State v. Peirce, 257 Ga.App. 623, 625(1), 571 S.E.2d 826 (2002). The suppression of evidence, however, is an extreme sanction and one not favored in the law. State v. Kampplain, 223 Ga.App. 16, 18, 477 S.E.2d 143 (1996).
The evidence presented at the hearing on Chun's motion in limine shows that the officer stopped Chun for driving approximately 80 mph in a 55-mph zone. The officer observed various indicators that Chun was under the influence of alcohol, including slurred speech and red, watery eyes, and Chun admitted to having had three drinks. Following Chun's failure of field sobriety tests and a positive result on the alco-sensor test, the officer arrested her for DUI. The officer read the proper informed consent notice to Chun. See OCGA § 40-5-67.1(b)(2) (notice for drivers 21 years old and over). After the officer initially read the notice, Chun asked him whether her license would be suspended if she refused to submit to chemical testing. Chun also expressed some concern about what would happen if she submitted to the test and had a result under 0.08 grams. In response to Chun's questions, the officer reread part of the notice, and explained that if she refused the chemical test, her license would be suspended for one year; that if she took the test and registered 0.08 or higher, her license would be suspended; and, even if she took the test and registered lower than 0.08, her license could be suspended if she was convicted of DUI at trial. Chun refused to submit to the test. Later, at the police station, the officer again read Chun the implied consent notice, and Chun declined to be tested. Chun did not testify at the hearing.
In ruling on Chun's motion in limine, the court concluded that the officer's response to Chun's question about a test result lower than 0.08 grams was misleading because the officer did not also advise Chun "that if she blew lower than 0.08, her license would not be administratively suspended, or that her license would not be suspended if she were not convicted at trial." According to the court, the officer's statement that Chun's license could be suspended if she is convicted of DUI, "although technically correct, suggested that [Chun's] license would be suspended whether or not she chose to take the chemical test." The court decided that, as a result of this "misleading" information, Chun "was unable to make an informed choice" about whether to refuse testing, which made her refusal inadmissible at trial.
*734 The State challenges the court's ruling, contending the officer gave accurate answers in response to Chun's questions, that the information was not false or misleading, and that it correctly communicated the legitimate consequences of either Chun's submission to chemical testing or her refusal to submit to testing. We agree.
In this case, the trial court properly found that the officer's responses were correct. It is undisputed that the officer correctly stated that Chun's license would be suspended if she refused chemical testing or had a test result greater than 0.08 grams. See OCGA §§ 40-5-63(a)(1); 40-5-67.1(b)(2); 40-6-391(a)(5). Further, an individual's license will be suspended upon a conviction for DUI as a less safe driver, regardless of the individual's chemical test results. See OCGA §§ 40-5-63(a)(1); 40-6-391(a)(1). Since the officer's statements were true, the only question that remains is whether there was a substantial basis for the trial court's determination that the officer's statements were so misleading as to have rendered Chun "unable to make an informed choice" regarding whether to refuse testing.
It is undisputed that the officer gave Chun the proper informed consent notice and that he told her that her license could be suspended if she were convicted of DUI at trial, even if her test results were lower than 0.08. Contrary to the trial court's conclusion, this is not the same as implying that Chun's license would be suspended regardless of whether she submitted to testing. Further, the court's suggestion that the officer should have also told her that her license would not be suspended if she was not convicted is simply an alternativebut equivalentversion of the officer's statements, and is certainly not any clearer or less misleading.[1]
We find that, under the circumstances of this case, there was no substantial basis for the court's conclusion that the officer's statements were so misleading that they rendered Chun incapable of making an informed decision about whether to submit to chemical testing. See State v. Kirbabas, 232 Ga.App. 474, 479(1)(c), 502 S.E.2d 314 (1998) (affirming the admission of chemical test results based upon a finding that the officer's statement that he would suspend the defendant's license upon a refusal to submit to testing was not misleading because the officer was, in fact, an agent of the State and could initiate suspension proceedings); cf. State v. Peirce, 257 Ga.App. at 625-626(1), 571 S.E.2d 826 (officer's statement that defendant would lose his driver's license upon refusal to submit to testing was misleading, as defendant held a Texas license and the State of Georgia lacked authority to suspend it); State v. Terry, 236 Ga.App. at 250-251, 511 S.E.2d 608 (upholding the grant of a motion in limine because officer's statement that the defendant had to "bond out" before she would be able to obtain an independent chemical test misstated the law and was misleading, and because substantial other misleading information compounded the defendant's confusion). Accordingly, we reverse the grant of Chun's motion in limine.
Judgment reversed.
ANDREWS, P.J., and MILLER, J., concur.
NOTES
[1] Notably, Chun argued to the trial court that, when she asked about what would happen if her test results were below 0.08, the officer simply should have said that her license would "not be suspended pursuant to the implied consent law." This statement, however, would have been very misleading, because lay persons might not recognize that their license could still be suspended for a year based upon a conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329130/ | 594 S.E.2d 710 (2004)
265 Ga. App. 495
HICKS
v.
WALKER et al.
No. A04A0740.
Court of Appeals of Georgia.
February 10, 2004.
Eason, Kennedy & Associates, Richard B. Eason, Jr., Atlanta, for Appellant.
Kirby G. Bailey, Decatur, for Appellees.
ELDRIDGE, Judge.
This is an appeal from the grant of summary judgment in the revival action brought on January 21, 1999, to revive the consent judgment entered on March 28, 1989, with sums due. The defendant Richard D. Hicks contends that he had satisfied the $24,600 consent judgment by paying $15,800, and there should be a credit for the $10,000 liability limits paid by Southeastern Fidelity Insurance Company into court under a consent order in an interpleader action on July 23, 1983. The trial court determined that $8,600 in principal remained due, that $5,372 in interest was due, and that no credit was due from the prior insurance proceeds payment. Finding no error, we affirm.
On May 9, 1982, Hicks was involved in a collision on I-285, which killed Clifford Walker. On August 22, 1983, in the interpleader action, a consent judgment determined that Russell Walker, Kenneth Walker, Carolyn Walker Stewart, and Clifton Walker, a minor, were the children of Clifford Walker, who had been killed in the wreck and that they would receive the $10,000 proceeds of the Southeastern Fidelity Insurance Company liability policy on Hicks but that there was expressly no release of Hicks from any liability for the wrongful death action in Fulton Superior Court in C-97632. Subsequently, on March 28, 1989, in C-97632, Hicks entered into a consent judgment with the four children to settle the wrongful death *711 action. The "Settlement by Consent Judgment" read:
The parties settle all issues and claims in the above case on the following terms: Defendant shall pay the total sum of $24,600 to Tyson Baisden, Jr., attorney for the above 4 children of Clifford Walker, Deceased. Payments shall be made as follows: Initial payment of $200 today and 122 subsequent payments of $200 each on the 1st day of each month beginning with May 1, 1989. Defendant expressly agrees that this debt outlined above is not dischargeable in any Bankruptcy proceeding either past or future. Court costs to be paid by Defendant. This 28th day of March, 1989. [signed] Russell B. Walker, Richard H. Hicks, R[illegible] B. Lamb, Atty for Def., T.E. Baisden, Jr. Attorney for above 4 parties plaintiffs. The above styled agreement and settlement is hereby made the judgment of this court. [signed] Osgood O. Williams, Atlanta Circuit.
A consent order may be treated as a binding agreement, enforceable as a contract. City of Centerville v. City of Warner Robins, 270 Ga. 183, 184(1), 508 S.E.2d 161 (1998); Walker v. Virtual Packaging, 229 Ga.App. 124, 127-128(3), 493 S.E.2d 551 (1997); Collins v. Collins, 148 Ga.App. 103, 104-105(2)(B), 250 S.E.2d 870 (1978). The usual rules of contract construction are applied to determine the meaning of a settlement agreement incorporated into a consent judgment. Lothridge v. First Nat. Bank of Gainesville, 217 Ga.App. 711, 714(3), 458 S.E.2d 887 (1995). "All prior agreements and controversies between the parties are merged [into] the consent decree. [Cit.]" Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga.App. 737, 747(2), 165 S.E.2d 441 (1968). As in all contracts, the cardinal rule of construction of a consent agreement is to determine the intent of the parties. City of Centerville v. City of Warner Robins, supra at 186-187, 508 S.E.2d 161.
From the four corners of the settlement agreement, the terms are clear and unambiguous in requiring that Hicks pay $24,600 with the initial payment of $200 on signing and the balance paid monthly at the rate of $200 per month for 122 months, which totals $24,600; thus, no construction is required, and the trial court must enforce the agreement as written. Lothridge v. First Nat. Bank of Gainesville, supra at 714, 458 S.E.2d 887. The settlement agreement was for new money for the wrongful death and did not either expressly or by inference consider credit for the $10,000 in earlier payment of the insurance policy liability limits. If the parties had intended to give credit for such earlier payment by the insurer, then the settlement agreement would have stated this and would not have used a settlement schedule that calculated out the exact amount of the agreed new money without any credit or set-off. Further, Hicks made payments under the consent judgment until October 20, 1996, without raising the issue of set-off or credit. Clearly, the parties all intended the settlement to be $24,600 in additional money above and beyond the $10,000 previously paid by the insurer for the wrongful death.
Judgment affirmed.
RUFFIN, P.J., and ADAMS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329135/ | 498 S.E.2d 382 (1998)
Charles STEWART, on behalf of his son Adam STEWART, Petitioner,
v.
JOHNSTON COUNTY BOARD OF EDUCATION, Respondent.
No. COA97-233.
Court of Appeals of North Carolina.
March 17, 1998.
*383 Marvin Sparrow, Durham, for plaintiff-petitioner.
Tharrington Smith by Michael Crowell, Karen James, and Jonathan A. Blumberg, Raleigh, for defendant-respondent.
ARNOLD, Chief Judge.
Petitioner's son was suspended from school pursuant to N.C.Gen.Stat. § 115C-391(b). The statute provides that a school principal has authority to suspend a student for a period of ten days or less for willful violations of school policies of conduct, as long as the student is given the opportunity to makeup any missed examinations. N.C.Gen.Stat. § 115C-391(b) (Supp.1996). The statute does not provide for an appeal of the decision to either the superintendent or to the board of education. In contrast, students suspended for a period of time longer than ten days are granted the right to appeal to the local board of education. N.C.Gen. Stat. § 115C-391(c). Decisions involving suspensions in excess of ten days are subject to judicial review. N.C.Gen.Stat. § 115C-391(e). The statute, however, does not provide for judicial review of suspensions of ten days or less. We hold that by expressly providing for judicial review for more serious disciplinary actions, but failing to indicate that such review is available for suspensions of ten days or less, the legislature did not intend to grant superior courts subject matter jurisdiction over such appeals. Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 303, 354 S.E.2d 495, 498 (1987) (holding that the statutory inclusion of one thing implies the exclusion of another).
Petitioner argues that the collateral consequences of receiving a failing grade in classes and not being allowed to ride the school bus for the remainder of the school year converts the suspension into more than a ten day disciplinary action. We disagree. As an initial matter, petitioner cites no authority for his proposition. More importantly, the statute specifically requires that the school allow disciplined students the opportunity to makeup missed exams at the conclusion of their suspension. N.C.Gen.Stat. § 115C-391(b). Furthermore, Judge Jenkins sought to reassure the petitioner that his son's grades would be reinstated by expressly reiterating to school officials the statutory requirement. To the extent that petitioner argues that the school may not reinstate the grades on his son's next report card, the issue is not ripe for judicial review *384 until the school has in fact refused to reinstate the grades. At this point, petitioner has presented no evidence that this is the case.
Petitioner alternatively contends that jurisdiction may be premised on the Administrative Procedure Act or N.C.Gen. Stat. § 115C-305. The fact that § 115C-391(e) provides for judicial review of some suspensions, but not suspensions of ten days or less, negates the argument that other statutory provisions provide a basis for jurisdiction. Statutory construction requires that a more specific statute controls over a statute of general applicability. Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 238, 328 S.E.2d 274, 279 (1985) ("Where one of two statutes might apply to the same situation, the statute which deals more directly and specifically with the situation controls over the statute of more general applicability."). Because the legislature failed to provide for judicial review of such suspensions in § 115C-391, we are precluded from recognizing jurisdiction in a statute of more general applicability.
Furthermore, while the Administrative Procedure Act (APA) does provide for judicial review of decisions by an agency or officer in the executive branch of government, it specifically exempts local units of government from its coverage. N.C.Gen. Stat. § 150B-2(1) (Supp.1996). This Court recently noted that the exclusion of local units of government includes local boards of education, although the APA does provide the standards for review when the legislature has explicitly granted the right to appeal from school board decisions. Evers v. Pender County Bd. of Educ., 104 N.C.App. 1, 9, 407 S.E.2d 879, 884, disc. review on additional issues allowed by, 330 N.C. 440, 412 S.E.2d 71 (1991), and affirmed per curiam, 331 N.C. 380, 416 S.E.2d 3 (1992). As previously noted, the right to appeal was not granted for suspensions of ten days or less.
Petitioner also argues that N.C.Gen. Stat. § 115C-305 can be read broadly as granting jurisdiction to superior courts to hear appeals from students. We disagree. Although § 115C-305 provides for judicial review of decisions of school personnel, Article 20, of which § 115C-305 is a part, contains requirements for teacher certification, tenure, and hiring. There is no reference in the statute to students. Section 115C-391, under which petitioner's son was disciplined, is contained within an entirely separate article, Article 27, which contains its own provisions governing appeal rights.
Affirmed.
GREENE and McGEE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329133/ | 330 S.C. 184 (1998)
498 S.E.2d 640
John Babe RAY, Jr., Petitioner,
v.
STATE of South Carolina, Respondent.
No. 24774.
Supreme Court of South Carolina.
Heard October 4, 1995.
Decided March 23, 1998.
Rehearing Denied April 27, 1998.
*185 Assistant Appellate Defender Robert M. Pachak, of S.C. Office of Appellate Defense, Columbia, for petitioner.
Attorney General Charles Molony Condon, Chief Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General Harold M. Coombs, Jr., and Assistant Attorney General William Edgar Salter, III, Columbia; and Solicitor Holman C. Gossett, Jr., Spartanburg, for respondent.
*186 PER CURIAM:
This is a death penalty case. Petitioner[1] raises two issues on certiorari from his resentencing, one relating to the admission of certain photos and the second to the sufficiency of the evidence of the aggravating circumstance of kidnapping. We consider those issues, conduct the review mandated by S.C.Code Ann. § 16-3-25(C) (1985), and affirm.
Petitioner Ray pled guilty[2] to murder and to unrelated charges of armed robbery, assault and battery with intent to kill (ABIK), first degree burglary, and grand larceny in 1991. The State sought the death penalty on the murder charge. After a hearing, the judge imposed a death sentence, finding kidnapping as the aggravating circumstance. Ray received consecutive sentences on the unrelated crimes. Ray appealed only his murder plea and sentence.
On appeal, this Court affirmed the murder conviction but reversed and remanded for resentencing. State v. Ray, 310 S.C. 431, 427 S.E.2d 171 (1993). On remand, Ray was again sentenced to death by the circuit judge sitting without a jury. This writ followed.
FACTS
Petitioner and several other individuals engaged in a course of criminal conduct, among other things stealing guns which they secreted in a barn. The victim, Josylin Ballenger, was a teenage girl who dated one of the men involved in the crime spree. Petitioner and others in the group suspected the victim was about to turn them in to the police. Late one evening, petitioner, the victim, and several others were gathered at the barn when petitioner shot the victim in her side.
The people at the barn agreed to take the victim, who remained conscious, to the hospital emergency room. Petitioner got in the back of the victim's pickup truck, and the victim got in the back and leaned against him. Petitioner and *187 the truck's driver had several conversations through the truck cab's sliding window on the way to the hospital, and at one point the truck stopped and someone (either petitioner or the driver) made a quick phone call. A passenger in the bed of the truck testified that shortly after the phone call, the truck drove past the highway exit leading to the hospital, and proceeded towards a rural area. As the truck turned onto a dirt road, petitioner began to choke the victim with a length of cord taken by him from the barn.
When the truck stopped at an isolated junkyard, petitioner began to beat and kick the victim. He then took a knife and stabbed her at least four times, the last time so deeply that he had to use both hands to pull it out. Petitioner licked the blood off the knife blade, made a sexual reference, and said, "I want to do somebody else. You get as much time for killing a hundred as you do for killing one." Petitioner and the driver dumped the victim's body head first into an abandoned well, and debris was thrown in on top of her. Petitioner then attempted to shoot one of the eyewitnesses whom he believed had exhibited signs of faint-heartedness during the murder, but the gun jammed.
ISSUES
Petitioner first contends he was deprived of a fair sentencing proceeding because the State was permitted to introduce five color photos of petitioner's ABIK victim and eleven color autopsy photos of the victim. We find no reversible error under the circumstances of this resentencing proceeding.
Petitioner's crime spree commenced when he and several other young men assaulted and robbed Glen Sellars. Petitioner and the others beat Mr. Sellars in the head with nightsticks and fists to the point that witnesses at the scene saw Sellars' exposed brain. The evidence showed that during the assault petitioner bit off Sellars' ear, and several of Sellars' teeth were knocked out. It took over 100 stitches to close his head wounds, his jaws were wired shut, and Mr. Sellars spent at least seven days in the hospital. The photos admitted at the resentencing, taken at the hospital the day after the beating, are shocking and illustrate a savage beating. On the other *188 hand, the autopsy photos at issue depict the victim's body in a "cleaned-up state", and allowed the pathologist to illustrate his testimony regarding the victim's pre- and peri-mortem wounds.
The general rules governing the admission of photographs in a criminal trial are clear. It is well established that photographs are relevant to show both the circumstances of the crime and the defendant's character, and are admissible in a sentencing proceeding unless unfairly prejudicial. State v. Franklin, 318 S.C. 47, 456 S.E.2d 357 (1995); State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979). Unfair prejudice exists where the photos tend to suggest the penalty decision should be based on an improper basis such as emotion. State v. Franklin, supra.
We conclude the autopsy photos are not inflammatory, were illustrative of the forensic testimony, and were properly admitted. State v. Franklin, supra. We are somewhat troubled by the gory photos of Mr. Sellars. Evidence of other crimes committed by the defendant is admissible at the sentencing phase of a capital trial. There is neither an assertion, nor any evidence, that this judge was improperly influenced by the photographs. We find no reversible error under these circumstances.
Petitioner next argues there was insufficient evidence that the murder was committed in the course of a kidnapping. Since kidnapping was the sole aggravating circumstance upon which the State relied in seeking the death penalty, petitioner contends the judge should have directed a sentence of life imprisonment. We disagree.
The victim was inveigled into getting in the truck under the pretense she was being taken to the hospital. Petitioner's intent not to take her to the hospital is evidenced by his taking the rope from the barn before they left. This conduct constituted kidnapping under S.C.Code Ann. § 16-3-910 (Supp. 1994). At the latest, the kidnapping occurred when they passed the last exit to the hospital. The "directed verdict" was properly denied. State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984).
*189 PROPORTIONALITY REVIEW
We have reviewed petitioner's sentence pursuant to S.C.Code Ann. § 16-3-25(C) (1985). We find the evidence supports the statutory aggravating circumstance of kidnapping, and that the sentence is not the result of passion, prejudice or any other arbitrary factor. Further, we find the death sentence here is proportional to that imposed in State v. Owens, 293 S.C. 161, 359 S.E.2d 275 (1987); State v. Koon, 285 S.C. 1, 328 S.E.2d 625 (1984); and to that imposed on appellant Arnold in State v. Plath, supra. Accordingly the sentence is
AFFIRMED.
NOTES
[1] This matter is before the Court pursuant to a common law writ of certiorari. Petitioner's trial attorneys neglected to file a timely appeal, necessitating this extraordinary relief.
[2] Pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329137/ | 498 S.E.2d 196 (1998)
MARCUS BROTHERS TEXTILES, INC., Plaintiff-Appellant,
v.
PRICE WATERHOUSE, LLP (formerly Price Waterhouse), and John Does I-V, individually and as members of Price Waterhouse, Defendant-Appellees.
No. COA97-435.
Court of Appeals of North Carolina.
April 7, 1998.
*198 White and Crumpler by Dudley A. Witt and Laurie A. Schlossberg, Winston-Salem, for plaintiff-appellant.
Womble, Carlyle, Sandridge & Rice by Hada V. Haulsee and John J. Bowers, Winston-Salem, for defendant-appellee Price Waterhouse, LLP.
EAGLES, Judge.
I.
We first consider whether the trial court erred in granting defendant's motion for summary judgment on the claim of negligent misrepresentation because plaintiff's evidence was sufficiently "substantial" to entitle plaintiff to have a jury consider the question of defendant's knowledge that Piece Goods intended that plaintiff would rely on the financial statements in plaintiff's decision to extend credit.
Plaintiff argues that genuine issues of material fact remain regarding the requisite knowledge element and that summary judgment should be reversed. Plaintiff contends that their evidence, and the reasonable inferences to which it gives rise, show that plaintiff was a member of "a limited group of persons" whom defendant knew, at the time Price Waterhouse audited Piece Goods' 1992 financial statements, that Piece Goods intended to provide copies of those statements for the purpose of "influenc[ing]" plaintiff in its decision to extend credit. Restatement (Second) of Torts § 552 at 2(a). Plaintiff argues that the actual identity of plaintiff need not have been known by defendant when the defendant prepared the information. It is sufficient that the "maker supplies the information for repetition to a certain group or class of persons and that the plaintiff proves to be one of them, even though the maker never had heard of him by name when the information was given." Restatement (Second) of Torts § 552 cmt. h (1977).
Plaintiff first cites as evidence an internal memorandum of defendant dated 25 September 1989 and initialed by Robert A. Smith, a partner at Price Waterhouse who worked on the 1992 audit. The memorandum states: "[Price Waterhouse] has historically reported on the financial statements of [Piece Goods] and ... vendors and factors are accustomed to receiving [Piece Goods] financial statements...." Plaintiff contends that this memorandum shows that defendant knew that Piece Goods regularly furnished its vendors and creditors with financial statements. Accordingly, plaintiff contends that since Piece Goods was in a business where acquiring inventory on credit is standard operating procedure, and since by 1992 defendant had been Piece Goods' accountant and financial adviser for six years, a factfinder could logically conclude that defendant knew why Piece Goods regularly gave creditors its financial statements, namely, to influence their decisions to extend credit.
Plaintiff next cites deposition testimony from Karen Frazier, the Price Waterhouse employee who was manager of the 1992 audit. Frazier testified that audited financial statements are "to be used by the management of the company and possibly outsiders," that trade creditors like plaintiff "could" be included among the "outsiders," and that in Piece Goods' situation, the outsiders "could" include "suppliers of material and inventory patterns."
Plaintiff next cites Piece Goods' 1993 bankruptcy filing which indicated that 43 trade creditors received copies of audited financial reports within the two years immediately preceding the bankruptcy filing. Plaintiff contends that this supports "the common sense inference that as Piece Goods' accountant since 1986, Price [Waterhouse] could not *199 have been unaware" that Piece Goods furnished its audited financial statements to creditors in the regular course of its business.
Finally, plaintiff cites evidence that the sixth largest check on a list of 50 "held checks" in the 1992 Piece Goods' audit file was a check on Piece Goods' account payable to plaintiff in the amount of $291,337.78. Plaintiff contends that this evidence supports the inference that defendant knew that plaintiff was a member of the group identifiable as Piece Goods' major creditors.
Plaintiff argues that the evidence, when viewed in the light most favorable to plaintiff, creates a genuine issue of fact regarding the requisite element of knowledge as required by the Restatement and Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200, 367 S.E.2d 609 (1988), appeal after remand, 101 N.C.App. 1, 398 S.E.2d 889 (1990), rev'd on other grounds, 329 N.C. 646, 407 S.E.2d 178 (1991). Accordingly, plaintiff argues that the summary judgment order should be reversed.
Defendant first argues that North Carolina law limits an accountant's liability for negligent misrepresentation to those persons the accountant intends to be able to rely on the information, or those persons the accountant knows his client intends to be able to rely on the information. Defendant maintains that our Supreme Court has specifically rejected the "reasonably foreseeable" test in Raritan. Accordingly, defendant argues that it is not enough for plaintiff to show that defendant "should have known" that Piece Goods "might" provide the financial statements to trade creditors like plaintiff. Instead, defendant contends that plaintiff must show that defendant "knew" that Piece Goods intended for trade creditors to rely on the 1992 financial statements in extending credit.
Defendant maintains that plaintiff has not forecast sufficient evidence to show that defendant had the requisite knowledge at the time of the audit. Defendant argues that the memorandum cited by plaintiff "establishes, at most, that Price Waterhouse knew that Piece Goods' audited financial statements were customarily used in a variety of financial transactions by the company and that the financial statements may have been relied upon by lenders, creditors and others in a variety of transactions." Defendant maintains that this evidence is not sufficient to satisfy the requisite element of knowledge and to extend liability for negligent misrepresentation to defendant. See Raritan, 322 N.C. at 215 n. 2, 367 S.E.2d 609 (citing Restatement (Second) of Torts § 552 cmt. h Example 10).
We hold that there is a genuine issue of material fact concerning whether Price Waterhouse knew that Piece Goods supplied the audited financial statements to its creditors in order to buy on credit, and whether Price Waterhouse knew that plaintiff would be included in a limited group to whom the audited financial statement would be supplied. In Raritan, our Supreme Court adopted the standard set forth in the Restatement (Second) of Torts § 552 (1977) for determining the scope of accountant's liability to persons other than the client for whom an audit was prepared. Our Supreme Court recognized "that liability should extend not only to those with whom the accountant is in privity or near privity, but also to those persons, or classes of persons, whom he knows and intends will rely on his opinion, or whom he knows his client intends will so rely." Raritan, 322 N.C. at 214, 367 S.E.2d at 617. The Court further determined that:
[t]he Restatement's text does not demand that the accountant be informed by the client himself of the audit report's intended use. The text requires only that the auditor know that his client intends to supply information to another person or limited group of persons. Whether the auditor acquires this knowledge from his client or elsewhere should make no difference. If he knows at the time he prepares his report that specific persons, or a limited group of persons, will rely on his work, and intends or knows that his client intends such reliance, his duty of care should extend to them.
Id. at 215, 367 S.E.2d at 618 (emphasis added).
Plaintiff's evidence creates a genuine issue of material fact regarding Price Waterhouse's *200 knowledge. First, the 25 September 1989 internal memorandum cited by plaintiff creates a genuine issue of material fact concerning Price Waterhouse's knowledge of the intended use of the audited financial statements and whether they were given to creditors to influence decisions on whether to extend credit. Second, plaintiff's inclusion on a list of 50 "held checks" contributes at least to a reasonable inference that Price Waterhouse knew plaintiff was a member of a group identifiable as Piece Goods' major creditors. Third, Price Waterhouse had been retained as Piece Good's accountant and financial adviser for the preceding six years. Accordingly, there is a genuine issue of material fact concerning whether Price Waterhouse knew that Piece Goods supplied the audited financial statements to its creditors in order to buy on credit, and whether Price Waterhouse knew that plaintiff would be included in a limited group to whom that the audited financial statement would be supplied.
II.
We next consider whether the trial court erred in granting defendant's motion for summary judgment to the extent it is based on the "justifiable reliance" requirement.
Plaintiff first argues that in claims for negligent misrepresentation, "justifiable reliance" is treated under North Carolina law as "reasonable reliance," and reasonable reliance is virtually always a question of fact. Stanford v. Owens, 46 N.C.App. 388, 395, 265 S.E.2d 617, 622, cert. denied, 301 N.C. 95, 273 S.E.2d 300 (1980). Plaintiff contends that only in "extreme circumstances ... [can] conduct ... be considered unreasonable as a matter of law." Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C. 534, 544, 356 S.E.2d 578, 584, reh'g denied, 320 N.C. 639, 360 S.E.2d 92 (1987). Plaintiff maintains that nothing in the evidence suggests that their reliance on the audited financial statements exhibits "extreme conduct," and therefore summary judgment should not have been granted. Plaintiff further argues that it "in fact obtained the information from which it relied to its detriment from the audited financials and not some other source," and that it has "proffered the requisite `substantial' evidence upon which reasonable jurors could easily find such actual reliance." Third, plaintiff argues that "[r]eliance on audited financial statements certified by a firm such as Price [Waterhouse], and where information to verify the statements is in Price [Waterhouse's] hands or otherwise unavailable to [plaintiff], is almost presumptively justifiable." Finally, plaintiff contends that "any discrepancies or conflicts" in the evidence "only serve to highlight the fact intensive nature of the `justifiable reliance' question...." Accordingly, plaintiff maintains that genuine issues of material fact remain on the reliance element and that summary judgment was erroneously granted.
Defendant contends that plaintiff "was aware and understood all of the facts concerning [the] three alleged departures from GAAP." Accordingly, defendant contends that the essential element of justifiable reliance is missing from this case.
First, defendant claims that plaintiff knew that the funds to pay off the receivable from the General Partner would have to come from Piece Goods itself, because the information was disclosed in Note 3 in the financial statements. Note 3 states that "Liquidation of this receivable will be accomplished through future distributions to the general partner." Defendant cites testimony from plaintiff that plaintiff understood Note 3 to mean that the funds to pay off the receivable would have to come from Piece Goods itself. Defendant also refers to the complaint which states that the "the Piece [Goods] July 31, 1992 financial statement, audited by [Price Waterhouse], confirms the worthlessness of the Receivable." Defendant contends that this statement in the complaint is a judicial admission that the 1992 financial statements makes clear that the receivable was worthless. Accordingly, defendant argues that plaintiff could not have justifiably relied on any alleged misrepresentation.
Second, defendant argues that plaintiff was aware and understood the treatment of the accrued interest on the receivable from the General Partner. Defendant claims that treatment of the accrued interest was evident *201 from the face of the financial statements and further that testimony from plaintiff's witnesses establishes that plaintiff was not misled.
Third, defendant maintains that plaintiff's own evidence shows that plaintiff was aware of the treatment of the pattern inventories and understood the alleged misleading effect on working capital. Furthermore, defendant argues that plaintiff "disagreed with the accounting... and adjusted for it." Since plaintiff disagreed with and adjusted for the accounting of the pattern inventories, defendant contends that plaintiff cannot now be said to have relied to its disadvantage upon the alleged misrepresentations.
Defendant finally contends that plaintiff was on "inquiry notice" of the facts underlying the alleged misrepresentations since plaintiff knew and understood the accounting practices alleged to violate GAAP and their effect on the 1992 financial statements. Defendant argues that justifiable reliance cannot be shown where the plaintiff is on notice of the facts underlying an alleged misrepresentation. See APAC-Carolina, Inc. v. Greensboro-High Point Airport Authority, 110 N.C.App. 664, 680, 431 S.E.2d 508, 517, cert. denied, 335 N.C. 171, 438 S.E.2d 197 (1993) (lack of justifiable reliance where plaintiffs had burden of fully inspecting all available information, and inspection would reveal alleged negligent misrepresentation). Furthermore, defendant argues that when the explanatory notes in the financial statements are considered, there is nothing misleading about the alleged misrepresentations at issue. Accordingly, defendant submits that there was no genuine issue of material fact and that summary judgment was properly granted.
We hold that there are genuine issues of material fact concerning plaintiff's understanding of the receivable from the general partner and whether plaintiff justifiably relied on his understanding of the general partner's receivable.
What is reasonable [reliance] is, as in other cases of negligence, dependent upon the circumstances. It is, in general, a matter of the care and competence that the recipient of the information is entitled to expect in the light of the circumstances and this will vary according to a good many factors. The question is one for the jury, unless the facts are so clear as to permit only one conclusion.
Forbes v. Par Ten Group, Inc., 99 N.C.App. 587, 595-96, 394 S.E.2d 643, 648 (1990), disc. review denied, 328 N.C. 89, 402 S.E.2d 824 (1991) (emphasis added).
In the light most favorable to plaintiff, the facts are not so clear as to permit only a conclusion in favor of defendant. Defendant cites testimony that it contends shows that plaintiff knew and understood that the receivable would have to come from Piece Goods itself. However, further review of that testimony in context reveals conflicts that preclude summary judgment. While plaintiff may have understood that the receivable was to be repaid by future distributions, the same agents also testified that the audited financial statements did not lead them to believe that the general partner had no assets at all and that the debt was worthless. James Quinn, plaintiff's Director of Corporate Credit, testified that he understood that the source of funds for repayment of the receivable would be "subsequent distributions to the general partner." However, Quinn also testified that he understood that the receivable "would ultimately be collectible... [b]ecause that's what Price Waterhouse said in their audited report." Henry Woodward, plaintiff's Credit Manager, testified that he understood the source of repayment to be "future distributions to the partner." However, Woodward also testified that "there was nothing to indicate in the certified financial statement that this asset had no value ..." and that if it was worthless "there would at least be a qualified statement in the form of a footnote that this is a certified statement, but qualified [to] the extent that the value of this asset cannot be determinative [sic]." Woodward further testified that footnote 3 meant to him that "[t]here was no question in the CPA's mind that prepared the statement that this receivable would be paid, because that's what it says." Finally, Woodward testified that "if there was any doubt at all ... that this amount was, in fact, not going to be paid, it *202 should be stipulated in here somewhere in the footnote. It should be stipulated. It's not stipulated."
The conflict in Woodward and Quinn's testimony regarding their understanding of the receivable cannot be appropriately reconciled on a motion for summary judgment. Their testimony must be viewed in the light most favorable to plaintiff. Accordingly, there was a genuine issue of material fact concerning the essential element of justifiable reliance and summary judgment could not properly be granted.
In sum, in the light most favorable to plaintiff, there are genuine issues of material fact concerning the essential elements of knowledge and justifiable reliance. Accordingly, the order granting summary judgment for defendant is reversed.
Reversed and remanded.
WALKER, J., concurs.
WYNN, J., dissents.
WYNN, Judge, dissenting.
As I do not believe that plaintiff Marcus Brothers Textiles, Inc. ("Marcus") forecasted sufficient evidence to establish either that Price Waterhouse knew the audit would be provided to Marcus for guidance or that Marcus justifiably relied on the alleged misrepresentations, I would affirm the trial court. Accordingly, I respectfully dissent.
I.
To hold an accountant liable for negligent misrepresentation in audited financial statements, a plaintiff must establish that the accountant owed him or her a duty of care. Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200, 206, 367 S.E.2d 609, 612 (1988). North Carolina follows the Restatement (Second) of Torts § 552 definition of an accountant's duty. Id. at 214, 367 S.E.2d at 617. Under that test, the accountant's duty extends "not only to those with whom the accountant is in privity or near privity, but also to those persons, or classes of persons, whom he knows and intends will rely on his opinion, or whom he knows his client intends will so rely." Id. This case involves the latter theory of liability. Thus, on the defendants' motion for summary judgment, Marcus had the burden of bringing forth sufficient evidence that Price Waterhouse knew Piece Goods intended to supply the opinion and audited statements to Marcus for use in deciding whether to extend credit to Piece Goods.
The majority concludes that three items of evidence offered by Marcus were sufficient evidence of knowledge: First, the Price Waterhouse internal memorandum, dated 25 September 1989 and initialed by a partner who worked on the Piece Goods audit, that stated "[Price Waterhouse] has historically reported on the financial statements of [Piece Goods] and ... vendors and factors are accustomed to receiving [Piece Goods] financial statements...."; Second, Marcus's inclusion on a list of fifty held checks in the 1992 audit as the sixth largest check; Third, Price Waterhouse's employment as Piece Goods's accountant and financial advisor for six years.
None of this evidence, individually or collectively, shows that Price Waterhouse had the knowledge required under the standard detailed by our Supreme Court in Raritan. As I have already discussed, there is a limited scope of individuals to whom an accountant owes a duty for negligent misrepresentation in audited financial statements. Raritan, 322 N.C. at 214, 367 S.E.2d at 617. The Raritan Court held that:
[I]n fairness accountants should not be liable in circumstances where they are unaware of the use to which their opinions will be put. Instead, their liability should be commensurate with those persons or classes of persons whom they know will rely on their work.
Id. at 213, 367 S.E.2d at 616. Thus, liability does not extend to situations where an accountant "`merely knows of the ever-present possibility of repetition to anyone, and the possibility of action in reliance upon [the audited financial statements], on the part of anyone to whom it may be repeated.'" Restatement (Second) of Torts § 552, cmt. h (1977), quoted in Raritan, 322 N.C. at 214-15, 367 S.E.2d at 617 (alteration in original).
*203 When it adopted the Restatement's standard, our Supreme Court specifically rejected the alternate "reasonably foreseeable" test, which holds that an accountant owes a duty to all persons whom the accountant could reasonably foresee might obtain and rely on his work. Raritan, 322 N.C. at 211, 367 S.E.2d at 615. It also quoted the following example to illustrate the knowledge required in order for a duty to attach:
A, an independent public accountant, is retained by B Company to conduct an annual audit of the customary scope for the corporation and to furnish his opinion on the corporation's financial statements. A is not informed of any intended use of the financial statements; but A knows that financial statements, accompanied by an auditor's opinion, are customarily used in a variety of financial transactions by the corporation and that they may be relied upon by lenders, investors ... and the like.... In fact B Company uses the financial statements and accompanying auditor's opinion to obtain a loan from X Bank. Because of A's negligence, he issues an unqualifiedly favorable opinion upon a balance sheet that materially misstates the financial position of B Company and through reliance upon it X Bank suffers pecuniary loss. A is not liable to X Bank.
Restatement (Second) of Torts § 552, cmt. h, example 10, quoted in Raritan, 322 N.C. at 215 n. 2, 367 S.E.2d at 617 n. 2.
None of the evidence relied upon by the majority establishes that Price Waterhouse had more knowledge of Piece Goods' plans than in the above example. The internal memorandum establishes only that Price Waterhouse knew that outside vendors and creditors received the financial statements it prepared. The fact that the plaintiff was included on a held check list establishes that the plaintiff was one of a fairly sizeable group of creditors. Even when given a plaintiff's due favorable inferences, in my opinion this evidence does not establish any knowledge on the part of Price Waterhouse other than that its financial statements were being used in a variety of financial transactions by Piece Goods, such as the one in which Piece Goods obtained credit from Marcus.
Furthermore, I cannot agree that the length of time that Price Waterhouse served as Piece Goods's financial advisor and auditor is materially relevant. Such evidence by itself is, obviously, not sufficient to establish knowledge, and in combination with speculative evidence is equally insufficient.
To summarize, the law requires that Marcus show that Price Waterhouse knew that the 1992 audit would be provided to Marcus for Marcus's use in deciding to extend credit before establishing a duty. In my opinion, the evidence relied on by the majority at best indicates that Price Waterhouse might possibly have been able to infer this fact, but I do not believe that to be sufficient under our Supreme Court's holding in Raritan. As the evidence forecasted by Marcus is legally insufficient to show that Price Waterhouse knew that Marcus would rely on the work to an extent greater than "the ever-present possibility of repetition," Restatement (Second) of Torts § 552, cmt. h, quoted in Raritan, 322 N.C. at 214, 367 S.E.2d at 617, I believe that summary judgment was appropriate and would affirm the trial court. See Best v. Perry, 41 N.C.App. 107, 254 S.E.2d 281 (1979).
II.
I also believe that the plaintiff failed to forecast sufficient evidence of "justifiable reliance." The lack of evidence on this element provides an alternative basis for affirming the trial court's grant of summary judgment sufficient in of itself.
It has been said that justifiable reliance is a very fact-intensive question, on which summary judgment is rarely granted. See, e.g., Stanford v. Owens, 46 N.C.App. 388, 395, 265 S.E.2d 617, 622, disc. review denied, 301 N.C. 95, 273 S.E.2d 300 (1980) ("[I]t is generally for the jury to decide whether plaintiff reasonably relied upon representations made by defendant."). Here, however, I believe that the factual context of this transaction makes it clear that there was an absence of justifiable reliance.
This was a significant transaction by sophisticated parties. Marcus could have, and most likely should have, had an outside party *204 look at the financials before granting close to $300,000 in credit. If Marcus was concerned about items on the financial statement, the time to have voiced those concerns was before it loaned such a large amount. Simply put, I do not think that in a commercial transaction of this scale, saying that you relied upon what the other side told you presents a case of justifiable reliance where the ability to evaluate the relevant information (in this case the financial statements) was apparently equally available to both parties.
As I believe that the evidence forecast by Marcus did not show justifiable reliance, I would affirm the trial court's grant of summary judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329371/ | 107 S.E.2d 372 (1959)
Marie May MOLLOHAN
v.
NORTH SIDE CHEESE COMPANY et al.
No. 10963.
Supreme Court of Appeals of West Virginia.
Submitted February 3, 1959.
Decided March 10, 1959.
*374 John Crynock, Farmer & Farmer, George R. Farmer, Jr., Morgantown, for plaintiff in error.
Robert T. Donley, Hale J. Posten, Morgantown, for defendants in error.
BROWNING, Judge.
Plaintiff, in this action of trespass on the case, caused summonses to issue from the office of the Clerk of the Circuit Court of Monongalia County on September 24, 1956, directed to the Sheriff of that county, and returnable to October Rules. There is no return of service endorsed by the Sheriff thereon; however, the record discloses that such process was transmitted by letter of the Circuit Clerk of September 24, 1956, to the Auditor of this State for service upon him, as statutory agent for defendants as nonresident motorists, the addresses of both the corporate and individual defendants being given as certain box numbers in Pittsburgh, Pennsylvania. The Auditor accepted service on behalf of both defendants on September 26, 1956, and, by registered mail, forwarded the summonses to the defendants at their Pennsylvania addresses requesting return receipts. Both letters were subsequently returned to the Auditor's office on October 10, 1956, the envelopes bearing the following notations: "Postmaster: Deliver to Addressee Only."; "Second Notice. No Reply To First Notice Mailed. Oct, -2, 1956."; "Return To WriterReason CheckedUnclaimed; Refused; Unknown; Insufficient Address; Moved, Left No Address; * * *." Behind each reason stated, there is a blank space consisting of several dots, presumably in which to place a check mark. On each envelope a penciled cross, consisting of one vertical and one horizontal line, was placed in the space following the word "Unknown", the horizontal line being entirely within that space, while the vertical line is extended in both directions into the spaces following the words "Unclaimed" and "Insufficient Address", those being the words immediately above and below, respectively, the word "Unknown".
The case having "matured" for trial at the January term of court and a declaration having been previously filed, on motion of the plaintiff, the Common Order was confirmed and a writ of inquiry executed resulting in a verdict for plaintiff in the amount of $7,500.00. The judgment, entered February 4, 1957, contains the following recital: "* * * that process commencing said action was issued for service upon said Defendants as provided by Chapter 56, Article 3, Section 31, of the official Code of West Virginia, and the return of service of said process being ambiguous on its face, the Court thereupon heard evidence of witnesses produced concerning the actual facts pertaining to the service of said process, and it now appearing to the Court from said return and the evidence so adduced that said process has been served upon the Defendants as provided by law, it is therefore ordered by this Court that judgment entered in the Clerk's Office of this Court against said Defendants stand confirmed. * * *" The evidence referred to was not reported.
Shortly thereafter the January term of that court was adjourned and on May 28, 1957, at the April term of court, the defendants, appearing specially, moved to reverse the judgment of February 4, 1957, *375 assigning several grounds in support thereof, including the ground that the Auditor's acceptance of service on behalf of the defendants did not comply with the provisions of Chapter 47, Acts of the Legislature, Regular Session, 1937, Michie's Code, 1955, Serial Section 5555(1), and, on July 22, 1957, the court entered its order in which it sustained such motion to reverse the judgment and awarded a new trial to the plaintiff, the order stating: "* * * doth hereby sustain said motion on the ground that altho the Auditor of the State of West Virginia actually accepted service of process yet there is no return receipt therefor signed by Defendants or their authorized agent or any notation upon the envelopes containing the process forwarded by the Auditor to the Defendants that delivery of said process had been refused by Defendants, * * *."
Upon petition of the plaintiff, this Court granted a writ of error on February 17, 1958, to the judgment of July 22, 1957. The defendants now cross-assign as error the action of the Circuit Court of Monongalia County in awarding plaintiff a new trial.
The pertinent statutory provisions are: Chapter 47, Acts, 1937, Michie's 1955 Code, § 5555(1):
"* * * (a) * * * Service of such process shall be made by leaving the original and a copy thereof with the certificate aforesaid of the clerk thereon, and a fee of two dollars with said auditor, or in his office, and said service shall be sufficient upon said nonresident: Provided, that notice of such service and a copy of the process shall forthwith be sent by registered mail, return receipt requested, by said auditor to the defendant, and the defendant's return receipt signed by himself or his duly authorized agent or the registered mail so sent by said auditor is refused by the addressee and the registered mail is returned to said auditor, or to his office, showing thereon the stamp of the post office department that delivery has been refused, is appended to the original process and filed therewith in the clerk's office of the court from which process issued." (Italics supplied.)
Code, 58-2-4: "The court in which there is a judgment by default, or a decree on a bill taken for confessed, or the judge of such court in vacation thereof, may, on motion, reverse such judgment or decree for any error for which an appellate court might reverse it, if section seven of this article were not enacted, and give such judgment or decree as ought to be given."
There was no appearance in this action by the defendants until after the entry of judgment against them. Therefore, it is a default judgment. 11 M.J., Judgments and Decrees, § 186, National Exchange Bank of Steubenville, Ohio v. McElfresh Clay Mfg. Co., 48 W.Va. 406, 37 S.E. 541. Within the period prescribed by Code, 58-2-4, the defendants made a motion to reverse the judgment, but, since the term of court had ended at which the judgment had been entered, the trial court could reverse the judgment only for such error as "an appellate court might reverse it." The judgment entered on February 4, 1957, recites that: "* * * the return of service of said process being ambiguous on its face, the Court thereupon heard evidence of witnesses produced concerning the actual facts pertaining to the service of said process, * * *." (Italics supplied.), but that evidence is not a part of the record before this Court.
It was held in Jones v. Crim & Peck, 66 W.Va. 301, 66 S.E. 367, 368, that: "* * * Before substituted service can take the place of, and be equivalent to, an actual personal service, all the requirements of the statute regarding the manner of such substituted service must be strictly complied with. * * *"
*376 The precise question presented upon this writ of error has not been decided by this Court. While the Auditor accepted service of process delivered to him by the plaintiff and promptly sent by registered mail, return receipts requested, to the defendants, copies of the process, the record before this Court shows that there is no return receipt signed by either of the defendants, or their duly authorized agents, nor does the registered mail sent by the Auditor show that it was refused by either of the defendants. It is true that the judgment order of February 4, 1957, states that evidence was taken to determine whether the process had been served upon the defendants as provided by law, "the return of service of said process being ambiguous on its face, * * *.", and it was found in the order that process had been served upon the defendants as provided by law. Although this Court originally adopted the verity rule, both as to sheriff's return upon process and the recital of an order or decree of a trial court of such service, in Stepp v. State Road Commission, 108 W.Va. 346, 151 S.E. 180, 182, it was held otherwise, and the Court said: "* * * But we have receded from the verity rule as to the sheriff's return, where it clearly and convincingly appears that the return is false. * * *. The same reasons impel a modification of the doctrine of verity in the court's decree as to service and return of process, * * *." In Calhoun County Bank v. Ellison, 133 W.Va. 9, 31, 54 S.E.2d 182, 194, the present rule adhered to by this Court is stated "that recitals in a decree, though not conclusive, are presumptively correct and will prevail in the absence of record evidence which necessarily contradicts them", citing Taylor v. Taylor, 128 W.Va. 198, 36 S.E.2d 601; Stepp v. State Road Commission, supra; and State v. Bailey, 85 W.Va. 165, 101 S.E. 169. Thus the trial court upon the motion to reverse was not bound by its former finding if the record before it was plainly contradictory to the recital in its former judgment.
It is clear from an inspection of the record that the recital in the former order that process had been served upon the defendants is contradictory to the record if it is necessary to good service under the statute, not only that the Auditor accept service, but that notice thereof be mailed to the defendants and return receipts executed by the defendants, or their duly authorized agents, or that the registered mail shows it was refused by the addressees. The law upon that question seems well settled. In Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 633, 71 L.Ed. 1091, the Supreme Court of the United States held that the nonresident motorist statute of the State of Massachusetts, which is similar although not identical to our statute, was not in conflict with the due process clause of the 14th Amendment to the Constitution of the United States. The Massachusetts statute provided for service upon the registrar of that state, and further provided that: "* * * notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff to the defendant, and the defendant's return receipt * * * are appended to the writ and entered with the declaration." However, in Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 261, 72 L.Ed. 446, the nonresident motorist statute of the State of New Jersey, which provided that service upon a nonresident motorist could be secured by serving the summons upon the Secretary of State without any provision for notification of the defendant by the Secretary of State, or anyone else, of the institution of the action, was held invalid as being repugnant to the 14th Amendment. The court held that such service "without more" was not sufficient. In the opinion, the court said: "* * * Every statute of this kind, therefore, should require the plaintiff bringing the suit to show in the summons to be served the post office address or residence of the defendant being sued, and should impose either on the plaintiff himself or upon the official receiving service or some other, the duty of communication *377 by mail or otherwise with the defendant." In Spearman v. Stover, La.App. 1936, 170 So. 259, under a statute providing that service of process should be made against a nonresident motorist by serving a copy of the petition on the Secretary of State, and that such service should be sufficient, provided that notice of such service together with a copy of the petition and citation was sent by registered mail to the defendant and the defendant's return receipt or affidavit of the party delivering the petition in case notice was made by actual delivery, was filed in the proceedings before judgment could be entered against the nonresident, it was held, that where the giving of the required notice was attempted only by registered mail, a valid and binding judgment against the defendant was not authorized until after his return receipt was filed in the proceedings. See also Dwyer v. Shalck, 1931, 232 App.Div. 780, 248 N.Y.S. 355; 57 A.L.R. 1239.
Substituted service of a summons by serving it upon the Auditor of this State is a very severe departure from the common law and strict adherence to the requirements of the act is essential to its validity. This Court so held in the recent case of Crawford v. Carson, 138 W.Va. 852, 78 S.E.2d 268, 38 A.L.R.2d 1191, but the question at issue there was one of venue rather than the service of process. This Court there held that an action against a nonresident motorist must be brought in the county where the accident occurred rather than the county where the plaintiff resided.
There appears to be some conflict in the cases from other jurisdictions as to whether service of process upon a state official and the acceptance of service by him constitutes the "service" of process upon the nonresident motorist, and that the giving of notice to him is a condition subsequent to the validity of service, or whether the notice to the nonresident motorist after service upon the state official constitutes "completed" service upon the latter. 82 A.L.R. 773; 96 A.L.R. 597, 599; 125 A.L.R. 469; 138 A.L.R. 1464. However, we perceive no significance in this divergence of views upon the issues presented in this case. The default judgment entered against the defendants was void because they were not served with process as prescribed by law. Their "true and lawful attorney", the Auditor of this State, was properly served and accepted service of the summonses, but that was not sufficient to give the trial court "jurisdiction" of the defendants. As required by the statute, the Auditor sent a copy of the process by registered mail to each of the nonresident defendants to the addresses furnished by the plaintiff. But there is no return receipt showing that such mail was received by either of the defendants, nor do the registered letters which were returned show that they, or either of them, were "Refused" by the addresses. On the contrary, the letters show by the "stamp of the postoffice department" that the addressees are "Unknown". The judgment of the trial court of July 22, 1957, insofar as it sustained the motion of defendants to reverse the default judgment of February 4, 1957, will be affirmed.
However, we find that it was error to grant the plaintiff a new trial. The defendants have not validly been served with process. Therefore, the Common Order, the writ of inquiry, the verdict of the jury and the judgment order of February 4, 1957, are void. This case has not matured for trial.
Affirmed in part; reversed in part; and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329372/ | 116 S.E.2d 443 (1960)
253 N.C. 164
Mary S. MERCER
v.
Grady MERCER.
No. 171.
Supreme Court of North Carolina.
October 12, 1960.
*445 Russell Lanier, Beulaville, and Jones, Reed & Griffin, Kinston, for defendant, appellant.
Hubert E. Phillips, Kenansville, and Albion Dunn, Greenville, for plaintiff, appellee.
PARKER, Justice.
G.S. § 50-16 under which plaintiff seeks relief provides two remediesone, for alimony without divorce, and the other, for a reasonable subsistence and counsel fees pending the trial and final disposition of the issues involved in such action. Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226, and cases there cited.
G.S. § 50-16 provides, that "if any husband shall separate himself from his wife and fail to provide her * * * with the necessary subsistence according to his means and condition in life, * * *, or be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board," she may institute an action for reasonable subsistence and counsel fees.
G.S. § 50-7 provides, "the superior court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following cases: 1. If either party abandons his or her family. * * * 4. Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome."
Plaintiff in her complaint has alleged facts sufficient to constitute a good cause of action under the provisions of G.S. § 50-16. Ipock v. Ipock, 233 N.C. 387, 64 S.E.2d 283. There is no plea, or even any suggestion, of adultery on the part of the plaintiff.
Judge Bundy in his order found the facts in great detail. His crucial findings of fact are in substance: Plaintiff and defendant were married on 1 September 1934, and thereafter lived together as man and wife until 18 January 1959. Two children were born of the marriage: a daughter now 22 years of age, and a son now 19 years of age. Plaintiff has taught school for many years in Duplin County. She provided the funds for the maintenance and support of her husband so as to permit him to complete his law studies at the University of North Carolina. She further contributed to his support, when he opened a law office in Duplin County. From her salary as a school teacher and from the proceeds of a small amount of property she owned in South Carolina, she bought a home for her husband and childrenher husband never provided a home for them, and provided food for the family, and bought clothes for the children, and at times for defendant. After their marriage defendant accumulated a large estate. During the last several years he has manifested to his wife a harsh and dictatorial manner. Defendant owns and drives a Cadillac car, and refused to permit his wife to go with him, saying "I don't want to be seen in public with you." For the past several years he has had a cottage at Carolina Beach, where during the beach season he has spent his week-ends, *446 and has refused to allow his wife to go there with him.
Judge Bundy found facts in great detail to this effect: On 18 January 1959 defendant wilfully abandoned his wife without any adequate cause or provocation on her part, and since that time has lived separate and apart from her providing her with no support at all. Judge Bundy further found facts in great detail to the effect that defendant without any adequate cause or provocation on his wife's part offered such indignities to her person as to render her condition intolerable and life burdensome.
Judge Bundy's findings of fact as to the financial means of the parties are as follows: Plaintiff receives a salary as a school teacher, and has a small income from property in South Carolina. She owns a home in Beulaville from which she derives no income, and upon which she pays the taxes and upkeep. Defendant is a man of considerable wealth. He has real and personal property in Duplin County, which has a tax value of $26,737. This property is listed for taxes at one-third of its estimated worth. In 1959 and 1960 he had a tobacco allotment on his farms in Duplin County of over 29 acres for each year. The value of farm lands in Duplin County is based upon the tobacco allotment, and has a reasonable market value of $4,500 to $5,000 per acre of tobacco allotment. From this tobacco allotment defendant has a net minimum income of $300 per acre. He is the owner of notes secured by mortgages or deeds of trust in the sum of $16,461.86. In the names of his daughter and son, or in the name of one of them, he has loaned to various people $42,609.62, which amounts are secured by deeds of trust naming him as trustee. His children had no means to make such loans, and the money was supplied by defendant. Defendant has conveyed to his children real estate of considerable value. On 6 April 1960 for the nominal sum of $300 he sold to his brother 38 cows and 15 calves. He receives from the State of North Carolina an annual salary of $10,500 as a member of the North Carolina Industrial Commission.
Defendant assigns as error that the judge over his objection permitted plaintiff to introduce in evidence the following part of an annual report on tobacco statistics issued by the U. S. Department of Agriculture for the purpose of showing the average per acre production of tobacco in the Eastern North Carolina Bright Leaf Belt for 1959: "1550 pounds for the year 1959 at an average price of 59 cents plus per pound; for 1958, 1691 pounds and at 55.4 cents per pound." In Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668, 678, it is said: "In Ann.Cas.1917C, at page 660 et seq., there is a note entitled `Effect of Admission of Incompetent Evidence in Trial before Court without Jury,' where the cases are collected from a large number of states and from the Federal courts. In this note it is stated: `The general rule deducible from the cases appears to be that where a case has been tried before the court without a jury the admission of incompetent evidence is ordinarily deemed to have been harmless unless it affirmatively appears that the action of the court was influenced thereby. In other words it is presumed that incompetent evidence was disregarded by the court in making up its decision.' In support of the text decisions are cited from 23 States, the Federal courts, and the District of Columbia." Judge Bundy in his elaborate findings of fact has found no fact based on this report. It does not affirmatively appear that the order of the court was influenced thereby. Even if the admission in evidence of part of this report was error, such evidence was harmless, and did not prejudice defendant. The assignments of error as to this evidence are overruled.
Defendant assigns as error the admission in evidence over his objections of deeds of trust securing indebtedness payable to his children, and of deeds to them for real property. It appears from a study of the recordand plaintiff so states in her briefthat these instruments were offered for the purpose of showing that defendant was disposing of his property in order to defeat the payment of any allowance made *447 to the wife for her reasonable subsistence. Defendant does not contend in his brief that the judge was influenced in his action in any way in fixing the amount of reasonable subsistence for his wife and the amount of her attorneys' fees pendente lite by such evidence. His sole contention as to this evidence is stated in his brief as follows: "The record evidence was therefore not competent as bearing upon any issue arising on the pleadings filed in the above-entitled action, and its admission, over defendant's objection, should be held for error."
Plaintiff in her complaint alleges in substance as a basis for an injunction restraining her husband from disposing of any part of his estate that he has threatened to dispose of his property, both real and personal, and to secrete the same for the purpose of defeating her rights under G.S. § 50-16. G.S. § 50-16 provides that the court in allowing reasonable subsistence and counsel fees to the wife pendente lite can cause the husband to secure so much of his estate or to pay so much of his earnings, or both, for such purposes, as may be proper. We consider the admission in evidence of the above instruments was not prejudicial to defendant, so far as the allowance of subsistence to plaintiff and counsel fees are concerned, and that such instruments were admissible for the purpose of the judge's consideration of the question as to whether or not he should cause defendant to secure the allowances made in the order on his estate, as he was disposing of a fair amount of his property. These assignments of error are overruled.
Defendant in his brief states: "Assignments of Error 4-20; 22-24 (R pp 100-110), supported by Exceptions 42-58; 60-62 (R pp 21-30; 97-99), challenge the Findings of Fact, Conclusions of Law and decree allowing alimony to the plaintiff pendente lite, and attorneys' fees."
The evidence offered by plaintiff and defendant was in sharp conflict. It was the trial judge's duty to pass upon the credibility of the evidence. He found the facts as shown by plaintiff's evidence, and not as shown by defendant's evidence. A study of the evidence shows that Judge Bundy's crucial findings of fact are supported by competent evidence, and such findings of fact are binding on appeal, notwithstanding the defendant has offered evidence to the contrary. Briggs v. Briggs, 234 N.C. 450, 67 S.E.2d 349; Bryant v. Bryant, 228 N.C. 287, 45 S.E.2d 572; McLean v. McLean, 233 N.C. 139, 63 S.E.2d 138. To this rule there is this exception, this Court has the right to review findings of fact with respect to interlocutory orders denying or granting injunctive relief. Cauble v. Bell, 249 N.C. 722, 107 S.E.2d 557.
Defendant contends that no allowance of a reasonable subsistence and counsel fees should be made, for the reason that "having regard also to the separate estate of the wife," G.S. § 50-16, it appears from Judge Bundy's findings of fact that plaintiff has sufficient means to cope with her husband in presenting her case to the court.
In Bowling v. Bowling, 252 N.C. 527, 114 S.E.2d 228, 232, the Court quotes from 41 C.J.S. Husband and Wife § 15, pp. 404 et seq., as follows: "It is the duty of a husband to support and maintain his wife * * *. There is not only a moral obligation resting on the husband to support his wife, but also a duty imposed by law. * * The duty of support resting on the husband does not depend on the adequacy or inadequacy of the wife's means or on the ability or inability of the wife to support herself by her own labor or out of her own separate property. The fact that the wife has property or means of her own does not relieve the husband of his duty to furnish her reasonable support according to his ability."
In Heflin v. Heflin, 177 Va. 385, 14 S.E. 2d 317, 321, 141 A.L.R. 391, the Court said: "The obligation of the husband to support his wife exists regardless of whether or not she is destitute and in necessitous circumstances."
*448 This is said in 27 Am.Jur., Husband and Wife, p. 22: "There is disagreement as to the effect of a wife's separate property or means on whether a temporary allowance of alimony, suit costs, and counsel fees will be allowed. According to one view, the fact that the wife has property and income of her own does not necessarily defeat her right to a temporary allowance, even though it may affect the amount of the allowance. According to a different view, where property and income of the wife are ample, there is no reason for allowing temporary alimony. There are some cases which go to the extent of denying any temporary allowance from the income of the husband while the wife has property remaining which she may subject to the payment of the expenses of the litigation and to her support. Temporary alimony, but not suit costs or attorneys' fees, has been allowed, where the wife had means to prosecute the suit without jeopardizing her rights."
G.S. § 50-16 provides that the judge in a proper case can make an allowance for subsistence and counsel fees pendente lite, "as may be proper, according to his condition and circumstances, for the benefit of his said wife * * *, having regard also to the separate estate of the wife." Therefore, according to the express language of this statute a wife in a proper case may be allowed reasonable subsistence and counsel fees pendente lite, and the fact that she has a separate estate of her own does not necessarily defeat her right to such temporary allowances.
Judge Bundy states in his order: "And the foregoing allowances are made in the discretion of the court, and after due consideration of the circumstances of both plaintiff and defendant."
The Court said in Fogartie v. Fogartie, supra [236 N.C. 188, 72 S.E.2d 227]: "The amount of the allowances to plaintiff for her subsistence pendente lite and for her counsel fees is a matter for the trial judge. He has full power to act without the intervention of the jury (citing authority), and his discretion in this respect is not reviewable, except in case of an abuse of discretion. Citing authorities."
The crucial facts found by Judge Bundy, supported by competent evidence, are amply sufficient to support his allowances to his wife for subsistence and counsel fees pendente lite, and it cannot be held upon the facts found by him that the allowances made to the wife pendente lite were so excessive or unreasonable considering the property and income of plaintiff and defendant as to amount to an abuse of discretion. Surely, it cannot be contended upon the facts found by the judge that plaintiff with the small amount of property she owns and her income as a teacher and a small amount of income from property owned by her in South Carolina had sufficient means, without embarrassing herself financially, to cope successfully with her husband, a man of considerable means and large income, in presenting her case to the court.
All defendant's assignments of error in respect to the allowances of subsistence and counsel fees pendente lite are overruled.
Defendant assigns as error that part of the order enjoining him from disposing of or mortgaging any part of his property pendente lite, with the exceptions therein recited.
"Ordinarily, an injunction will not be granted where there is a full, adequate and complete remedy at law, which is as practical and efficient as is the equitable remedy." In re Davis' Custody, 248 N.C. 423, 103 S.E.2d 503, 506, and cases there cited.
By virtue of G.S. § 50-16 the trial judge could have caused the defendant to secure so much of his estate as proper to pay the allowances made in his order. For a wilful failure on defendant's part to pay the allowances here made, if this should occur, the court can enforce its order by punishment of the defendant for contempt. Such legal remedies are as practical and efficient *449 under the facts found here as the equitable remedy of an injunction. This assignment of error is sustained.
The order entered by Judge Bundy below is affirmed, with this exception, the injunction issued in such order will be dissolved.
Modified and Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329351/ | 216 Ga. 328 (1960)
116 S.E.2d 742
COOK
v.
ROBINSON et al. OBIE L. COOK PRINTING EQUIPMENT CO.
v.
ROBINSON et al.
20953, 20954.
Supreme Court of Georgia.
Argued July 12, 1960.
Decided October 6, 1960.
Noah J. Stone, for plaintiffs in error.
Wilson, Branch & Barwick, J. Frank Ogletree, Jr., M. Cook Barwick, James C. Howard, Howard, Harp & Storey, Noah J. Stone, Casper Rich, contra.
QUILLIAN, Justice.
1. "A conspiracy upon which a civil action for damages may be founded is a combination between two or more persons either to do some act which is a tort, or else to do some lawful act by methods which constitute a tort. Where *329 it is sought to impose civil liability for a conspiracy, the conspiracy of itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage. Martha Mills v. Moseley, 50 Ga. App. 536, 538 (2) (179 S.E. 159). Thus, where the act of conspiring is itself legal, the means or method of its accomplishment must be illegal." Vandhitch v. Alverson, 52 Ga. App. 308, 310 (1) (183 S.E. 105); Clein v. City of Atlanta, 164 Ga. 529, 534 (139 S.E. 46, 53 A. L. R. 933); Foster v. Skies, 202 Ga. 122 (42 S.E.2d 441); National Bank of Savannah v. Evans, 149 Ga. 67 (99 S.E. 123); Lambert v. Georgia Power Co., 181 Ga. 624, 628 (183 S.E. 814); Johnson v. Ellington, 196 Ga. 847 (28 S.E.2d 114); Luke v. Dupree, 158 Ga. 590, 597 (124 S.E. 13).
2. While the conspiracy is not the gravamen of the charge, it may be pleaded and proved as aggravating the wrong of which the plaintiff complains, enabling him to recover in one action against all defendants as joint tortfeasors. National Bank of Savannah v. Evans, 149 Ga. 67, supra; Bentley v. Barlow, 178 Ga. 618 (173 S.E. 707).
3. The conspiracy may be pleaded in general terms, and this is true although the jurisdiction of the court to render judgment against one or more of the defendants depends upon allegations and proof of the conspiracy. Peoples Loan Co. v. Allen, 199 Ga. 537, 558 (34 S.E.2d 811); Walker v. Grand International Brotherhood &c. Engineers, 186 Ga. 811, 820 (199 S.E. 146).
4. If no cause of action is otherwise alleged, the addition of allegations concerning conspiracy will not make one; but, where a cause of action is alleged, the fact of conspiracy, if proved, makes any actionable deed by one of the conspirators chargeable to all. Young v. Wilson, 183 Ga. 59 (187 S.E. 44); Horton v. Johnson, 187 Ga. 9 (5) (199 S.E. 226); Wall v. Wall, 176 Ga. 757 (4) (168 S.E. 893); Grant v. Hart, 192 Ga. 153, 156 (5) (14 S.E.2d 860); Peoples Loan Co. v. Allen, 199 Ga. 537, supra. The liability is joint and several. Smith v. Manning, 155 Ga. 209 (2) (116 S.E. 813).
5. "The law recognizes the intrinsic difficulty of proving a conspiracy. The allegations with reference to conspiracy are treated as matters of inducement leading up to a more particular *330 description of the acts from which conspiracy may be inferred.. . Less certainty is required in setting out matters of inducement than in setting out the gist of the action. . . The conspiracy may sometimes be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances. The rule is to allow great latitude in setting out in the complaint the particular act upon which the conspiracy is to be inferred, and even to allow individual acts of the conspirators to be averred. `To show conspiracy it is not necessary to prove an express compact or agreement among the parties thereto. The essential element of the charge is the common design; but it need not appear that the parties met together either formally or informally and entered into any explicit or formal agreement; nor is it essential that it should appear that either by words or writing they formulated their unlawful objects. It is sufficient that two or more persons in any manner either positively or tacitly come to a mutual understanding that they will accomplish the unlawful design. And anyone, after a conspiracy is formed, who knows of its existence and purposes and joins therein, becomes as much a party thereto. . . as if he had been an original member.' 1 Eddy on Comb § 368." Woodruff v. Hughes, 2 Ga. App. 361, 365 (58 S.E. 551); Huckaby v. Griffin Hosiery Mills, 205 Ga. 88, 91 (52 S.E.2d 585); Horton v. Johnson, 192 Ga. 338, 346 (15 S.E.2d 605).
6. "Whether or not a combination formed for injuring another in his business be lawful, so far as the purpose is concerned [such as setting up a lawfully competitive business,] if unlawful means are used effectuating that purpose, resulting in damages, the conspiracy is actionable." 15 C. J. S. 1006. § 10; Burrus Motor Co. v. Patterson-Pope Motor Co., 50 Ga. App. 801, 810 (179 S.E. 171); Employing Printers Club v. Doctor Blosser Co., 122 Ga. 509 (50 S.E. 353, 69 L. R. A. 90, 106 Am. St. Rep. 137, 2 Ann. Cas. 694).
7. Where, under an application of the announced principles of law in the foregoing divisions of the syllabus, in an action for damages against three named defendants, it is alleged that the defendants have damaged the petitioner in a named amount by their wilful, deliberate, wrongful, and unlawful deeds, omissions, silences, breaches of trust, loyalty, and *331 confidence, committed or omitted pursuant to a conspiracy among them unlawfully to destroy and ruin the petitioner's printing business by establishing a competitive printing business; and it is alleged that one of the defendants was the petitioner's general manager in charge of the printing business and occupied a confidential and fiduciary relationship to the petitioner as his general agent; that another of the defendants, acting as an official, agent, and employee, as president of the third defendant, a corporation receiving and retaining the benefits of its president's acts, bore a confidential and fiduciary relationship to the petitioner, as his agent, employed to effectuate a sale of the petitioner's printing business as a going concern; and it is alleged that the first defendant set up a competitive printing business; converted funds, materials, supplies, and equipment belonging to the petitioner's business for use in the competitive business; used the petitioner's facilities and labor to print material advertising the competitive business; used petitioner's ledger of accounts listing his customers to solicit business for the competitive business; and induced named employees of the petitioner to breach their contracts of employment with the petitioner and accept employment in the competitive business; and it is alleged that the second defendant kept silent when he knew that the first defendant was setting up a competitive business, and assured the petitioner that the first defendant was co-operating with him fully in the sale of the petitioner's business, when such was not the case; and it is alleged that the third defendant, through its president, the second defendant, sold enumerated items of machinery and equipment to the first defendant for use in his competitive business, all of which acts are alleged to have been performed pursuant to the combination among the defendants to unlawfully destroy and ruin the petitioner's business the petition stated a cause of action against each of the defendants as against the second and third defendants' general demurrers.
8. Where, in such a case as indicated in the foregoing division, the petitioner amends by alleging that the acts and doings of the second defendant, its president, were authorized and ratified by the corporate third defendant, such amendment is not objectionable as adding a new cause of action or a new party defendant. "A corporation can act only by its agents, yet for *332 such acts it is responsible, and a simple direct statement that it committed a tortious act by the agent makes the corporation responsible. Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 (58 S.E.2d 559)." American Thread Co. v. Rochester, 82 Ga. App. 873, 885 (62 S.E.2d 602). The original petition comes within the purview of Code § 81-1303, and within the meaning of "enough to amend by" as used in Ellison v. Georgia R. Co., 87 Ga. 691 (13 S.E. 809), and the trial court did not err in overruling the motions of the second and third defendants, Obie L. Cook and Obie L. Cook Printing Equipment Company, to vacate and set aside the order allowing the indicated amendment.
9. Where, in such a case as indicated, it is alleged that the first of the three defendant conspirators, the general agent of the petitioner, is insolvent, has converted the petitioner's funds, goods, and equipment, and so commingled the property with his own that it may be lost, wasted, or disposed of, and an injunction, an accounting, and the appointment of a receiver is prayed, such as to give equity jurisdiction of the cause, and where equity has taken jurisdiction, it will retain it for all purposes against all proper parties. McCord v. Walton, 192 Ga. 279 (3) (14 S.E.2d 723).
10. Since the allegations of the petition must be taken as true in reviewing the case on demurrer, on a consideration of the petition as a whole, the allegations are sufficient as a matter of pleading to authorize a claim for punitive damages, and are not subject to any grounds of the special demurrer. Code § 105-2002; Walker v. Grand International Brotherhood &c. Engineers, 186 Ga. 811, supra, and citations.
11. Where bad faith is sufficiently inferable from the tortious acts allegedly committed wilfully and wantonly pursuant to a conspiracy to destroy the petitioner's business, a recovery of attorney's fees is authorized, and the claim for such fees is not subject to special demurrer. Mendel v. Leader, 136 Ga. 442 (3) (71 S.E. 753); Christopher v. Almond, 177 Ga. 211 (169 S.E. 899).
12. Where, in such a case as indicated, it is alleged that the petitioner has been damaged in a stated sum by the defendant conspirators' destruction of his business, such allegation is not subject to special demurrer for failure to itemize the damage. The measure of his damage is such as proximately flows *333 from the destruction of the business, and it is not necessary to itemize the damages emanating from enumerated tortious acts allegedly committed incident to the achievement of the major object of the conspiracy. Employing Printers Club v. Doctor Blosser Co., 122 Ga. 509, supra.
13. Where, in such case, it is alleged that, pursuant to the conspiracy, the defendants tortiously induced the petitioner's employees to break their contracts of employment with the petitioner, the allegation is not subject to special demurrer for failure to set out the contract with particularly, as would be the case were the contract the basis of the action. Lambert v. Georgia Power Co., 181 Ga. 624, supra; Luke v. DuPree, 158 Ga. 590, supra; Employing Printers Club v. Doctor Blosser Co., 122 Ga. 509, supra, and the numerous cases there cited.
14. "Though a bill be not framed with accurate precision, yet the allegations will be sufficient if they clearly and distinctly apprise the defendant of what he is called on to defend" (Black v. Black, 15 Ga. 445 (2)); and, "the plaintiff is not required to set forth the evidence, either direct or circumstantial, by which he expects to establish the traversable facts alleged in the petition." Cedartown Cotton &c. Co. v. Miles, 2 Ga. App. 79 (1a) (58 S.E. 289). Under an application of these principles of pleading to the petition in the instant case, none of the special demurrers of either of the defendants, not otherwise here treated in detail, is meritorious.
The trial court did not err in any of the rulings of which complaint is here made in either of the cases.
Judgments affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329353/ | 202 Va. 126 (1960)
W. FRANK SMYTH, JR., SUPERINTENDENT, ETC.
v.
LINWOOD BUNCH.
Record No. 5118.
Supreme Court of Virginia.
September 2, 1960.
Reno S. Harp, III, Assistant Attorney General (A. S. Harrison, Jr., Attorney General; Thomas M. Miller, Assistant Attorney General, on brief), for the plaintiff in error.
T. Warren Messick and Harvey S. Lutins, for the defendant in error.
Present, Eggleston, C.J., and Spratley, Whittle, Snead and I'Anson, JJ.
1. Bunch, represented by attorneys of his own choosing, pleaded not guilty to a charge of rape. The jury found him guilty as charged and "recommended" the penalty of death be imposed. Counsel did not question the form of the verdict. But after motions to set aside the verdict as contrary to the evidence were overruled, sentence of death imposed by the court, and appeal denied, Bunch petitioned for writ of habeas corpus alleging the verdict of the jury was a nullity and the judgment entered thereon void, because the jury did not fix and punishment but merely recommended it. This contention had no merit. The requirement of Code 1950, section 19-267, is that the jury shall ascertain the punishment. In the instant case the verdict was clear enough as to the punishment ascertained and intended for the court to enter judgment on it, and the use of the word "recommend" was a mere irregularity, not prejudicial to accused.
2. Habeas corpus could in no event be maintained. Its office is not to review errors committed at trial, for whose correction a remedy is available by appeal; or to attack a judgment of conviction which is merely voidable by reason of error of law or of fact.
Error to a judgment of the Hustings Court of the city of Richmond, Part II. Hon. M. Ray Doubles, judge presiding. The opinion states the case.
I'ANSON
I'ANSON, J., delivered the opinion of the court.
This case is before us on a writ of error and supersedeas granted W. Frank Smyth, Jr., Superintendent of the Virginia State Penitentiary, to an order of the Hustings Court of the City of Richmond, Part II, in a habeas corpus proceeding wherein the court adjudged to be void the final judgment order of conviction of the Corporation Court of the City of Newport News entered on January 5, 1959, imposing a death sentence upon Linwood Bunch, hereinafter sometimes referred to as petitioner, on a jury verdict of guilty to a charge of rape.
The material proceedings in the Corporation Court of the City of Newport News, on which the court below held the verdict of the jury a nullity and the judgment entered thereon to be void, are as follows:
On December 9 and 10, 1958, petitioner, who was represented by two attorneys of his own choosing, was tried on a plea of "not guilty" to an indictment charging rape, and the jury returned the following verdict:
"We the jury find the defendant Linwood Bunch guilty as charged and recommend the penalty of death be imposed."
When the jury returned their verdict the trial judge inquired of counsel if there were any objection to the form of the verdict, to which one of counsel replied that there was none. The trial judge then asked if counsel desired to poll the jury, and upon receiving an affirmative answer the clerk asked each juror, "Is this your verdict," to which each replied, "Yes, sir." After the jury was discharged without objection, defense counsel moved to set aside the verdict of the jury on the ground that it was contrary to the law and the evidence, which motion was overruled.
On January 5, 1959, counsel again moved that the verdict of the jury be set aside on the same ground theretofore assigned, which motion was again overruled, and the court, after inquiring of Bunch if he had anything to say as to why he should not then be sentenced in accordance with the verdict of the jury, sentenced him to death in the electric chair.
From this final order petitioner applied to this Court for a writ *128 of error and supersedeas, contending among other things that the verdict of the jury was contrary to the law and the evidence, but he did not question the form of the verdict. On March 11, 1959, after considering the petition and the record we denied the writ of error and supersedeas. Linwood Bunch Commonwealth, 200 Va. lxxi.
On June 18, 1959, Bunch filed a petition for a writ of habeas corpus in the court below, alleging for the first time that the verdict of the jury is a nullity and that the judgment entered thereon is void because the use of the word "recommend" in the verdict of the jury did not "fix" any punishment but merely recommended it and, therefore, the court was without jurisdiction to accept the recommendation of the jury.
After a hearing and argument of counsel on the writ of habeas corpus ad subjiciendum awarded Bunch upon the filing of his petition, the court below in a written opinion held that the use of the word "recommend" in the verdict of the jury did not fix any punishment; that the verdict was a nullity, and that the judgment entered thereon was void.
Section 19-267, Code of Virginia, provides as follows:
"The punishment in all criminal cases tried by a jury shall be ascertained by the jury trying the same within the limits prescribed by law." (Italics supplied.)
Under the provisions of the statute it is the duty of the jury to ascertain and make clear to the court, the defendant, and counsel their intention relative to the punishment to enable the court to impose sentence in its final judgment order. While in Virginia the word "fix" has been traditionally used by trial courts in instructions to juries, which was done in the case at bar, and in verdicts ascertaining punishment, the specific word "fix" is not found in, nor its employment required by, the statute.
Strict technical form is not required in a verdict, and this Court will go far in disregarding immaterial defects in verdicts which have been accepted by trial courts, if, notwithstanding such defects, the real finding of the jury may be determined. It is always necessary, however, before a judgment can be entered upon a verdict, that it appear with reasonable certainty what the jury found or intended to find. Willoughby Smyth, 194 Va. 267, 271, 72 S.E.2d 636, 639; Williams Commonwealth, 153 Va. 987, 994, 151 S.E. 151, 153; Mawyer Commonwealth, 140 Va. 566, 570, 125 S.E. 317, 319.
So far as we have been able to find, the exact question now before *129 us has not heretofore been before this Court. But courts in other jurisdictions have dealt with the matter in habeas corpus proceedings and in direct appeals.
The punishment ascertained by juries must be in conformity with the applicable statutes; but mere inaccuracies or informalities in ascertaining or assessing the punishment will not vitiate the verdict if it is clear and intelligible as to the punishment intended. 23 C.J.S., Criminal Law, | 1408(c), p. 1105; Ex Parte Mote (1955 Ky.), 275 S.W.2d 48 (habeas corpus); Smith State, 157 Tex. Crim. 399, 248 S.W.2d 937 (direct appeal); Sillemon State, 160 Tex. Crim. 350, 269 S.W.2d 382 (direct appeal); Salter State, 74 Ga.App. 608, 40 S.E.2d 586 (direct appeal). See also 36 Words and Phrases, Recommend, 1960 Cum. Supp. pocket part, p. 123.
In Ex Parte Mote, supra, the Kentucky statute provided that the jury "fix" the punishment and the verdict of the jury read:
"We, the jury, find the defendants * * * guilty as charged in instruction No. 1 and recommend full penalty of one year in jail * * *." (Italics supplied.)
It was argued (275 S.W.2d at p. 49) that the judgment was void because of the use of the word "recommend" instead of "fix" in the verdict, which point was raised for the first time in the habeas corpus proceeding. In disposing of this argument, the court held that the verdict was sufficiently definite to express the decision of the jury so as to enable the court to intelligently render a judgment thereon.
In Smith State, supra, the Texas statute made it mandatory for the jury to "assess" punishment, and the court said (248 S.W.2d at p. 938):
"The question for our determination, then, is * * *: Does the word, 'recommend,' as used in the verdict, have the same meaning as the word 'assess,' as used in the statute?"
* * *
"In Lewis State, 51 Ala. 1 (a murder case), the verdict was to 'recommend' punishment of twenty years. It was there contended that the word, 'recommend,' did not sufficiently declare the exercise of discretion by the jury in fixing the period of imprisonment in the penitentiary. In disposing of the question adversely to that contention, the Supreme Court of Alabama said:"
"'It is true that this is not possibly the most apt word that could *130 have been used in such a case. But it certainly fixes the time of imprisonment with suficient clearness to enable the court to carry the verdict into effect by its judgment. This is enough. The court will construe the language used in reference to the purpose necessarily intended.'"
"We are unwilling to give a strict construction to the words, 'assess' and 'recommend,' as used in the case before us, but rather, will construe the word, 'recommend,' as did the Alabama court, in the sense that assessment of punishment was intended by the jury."
In Salter State, supra, the defendant was indicted and tried for murder and the jury returned the following verdict:
"We, the jury, find the defendant guilty of voluntary manslaughter and recommend that he serve 2 yrs. minimum, maximum 5 yrs. * * *." (Italics supplied.)
Pursuant to this verdict the judge sentenced the defendant to serve from two to five years. The defendant contended that the verdict as written did not prescribe or fix the punishment, but merely recommended it. On appeal, the court held (40 S.E.2d at p. 587) that the judgment was not void because the verdict used the word "recommend," instead of the word "fix" in accordance with the charge of the judge, or the word "prescribe" as used in the statute; that the failure to use the word "fix" or "prescribe" instead of "recommend" was merely an irregularity which was not harmful, since the verdict was in substantial compliance with the statute.
In Underhill Commonwealth (1956 Ky.), 289 S.W.2d 509, a robbery case, the verdict read:
"We the jury find * * * guilty and recommend the minimum sentence of 21 years * * *." (Italics supplied.)
It was argued that the verdict was defective because it did not fix the appellant's punishment as required by the statute. The court held (289 S.W.2d at p. 511) that the failure to object to the form of the verdict before the discharge of the jury constituted a waiver of a non-prejudicial error.
The record of the proceedings in the Corporation Court of the City of Newport News shows that the jury were instructed by the court that if they found Bunch guilty to "fix" his punishment, and they should have employed the word "fix" or one synonymous therewith in wording their verdict. But their failure to do so, using the word "recommend" instead of "fix," was a mere irregularity which was amendable before the jury was discharged, and would *131 no doubt have been amended if the court's attention had been called to it. ( Carpenter Commonwealth, 193 Va. 851, 856, 857, 859, 71 S.E.2d 377, 379, 380, 381.) Counsel stated that he had no objection to the form of the verdict and requested a polling of the jury, at the court's suggestion. The verdict of the jury was clear and intelligible enough, as to the punishment ascertained and intended, for the court to enter its judgment on the verdict, and Bunch and his counsel raised no question as to its meaning or validity even though there was almost a month for reflection between the date of the verdict and the pronouncement of judgment. Indeed, the question of the validity of the verdict and the judgment entered thereon was not raised until after this Court had denied a petition for a writ of error. While it is true that the verdict is not in the language usually employed, it clearly shows that the jury ascertained and found the death penalty should be imposed on the petitioner. A verdict is to be reasonably construed and in such manner as to give it the meaning intended by the jury, and should be declared void for uncertainty only when its meaning cannot be reasonably determined. The verdict was in substantial compliance with Code | 19-267 and its form was not prejudicial to the petitioner. We hold that the judgment entered on the verdict is not void.
In no event can habeas corpus be maintained. Under well settled principles, the office of habeas corpus is not to review errors committed in the trial, but is a collateral attack on a judgment and raises the sole question of whether the judgment is void under which the petitioner is confined. Hobson Youell, 177 Va. 906, 916, 15 S.E.2d 76, 80; 25 Am. Jur., Habeas Corpus, | 13, pp. 151-152.
We have said many times that habeas corpus will not lie to review mere irregularities, errors or defects in orders or judgments since the law provides a remedy by appeal or writ of error to obtain their correction Hobson Youell, supra, (177 Va. at p. 916, 15 S.E.2d at p. 80); Hanson Smyth,
183 Va. 384, 392, 32 S.E.2d 142, 145; Smyth Morrison, 200 Va. 728, 732, 107 S.E.2d 430, 433. "The same rule applies to immaterial defects and irregularities in verdicts." Willoughby Smyth, supra, (194 Va. at p. 272, 72 S.E.2d at p. 639.)
The petitioner is in effect attempting to substitute habeas corpus for another petition for writ of error, which is barred under the statute by the passage of time.
Habeas corpus is not to be substituted for a writ of error or an *132 appeal and will not lie to attack a judgment of conviction which is merely voidable by reason of error of law or of fact, omissions or other irregularities. Harmon Smyth, 183 Va. 414, 418, 32 S.E.2d 665, 667;
Willoughby Smyth, supra; Royster Smith, 195 Va. 228, 232, 77 S.E.2d 855, 857.
For the reasons stated, the judgment complained of is reversed and the petition dismissed.
Reversed and final judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329361/ | 202 Va. 8 (1960)
MRS. L. SNYDER, B. P. SNYDER AND S. SNYDER, INDIVIDUALLY AND AS PARTNERS TRADING AS L. SNYDER'S DEPARTMENT STORE
v.
SHIRLEY GINN.
Record No. 5114.
Supreme Court of Virginia.
September 2, 1960.
Lester S. Parsons (Parsons, Stant, Parsons & Mirman, on brief), for the plaintiffs in error.
Wayne Lustig (Gordon E. Campbell; Charles R. Cloud, on brief), for the defendant in error.
Present, All the Justices.
After making a purchase in defendants' department store plaintiff started to leave through an exit she had not previously used. This exit led through a plate glass enclosed vestibule having inner and outer doors, also of glass, framed in metal and with metal handles and catches. Plaintiff failed to see the inside doors, walked into a glass panel beside them and injured her head. There was evidence that the vestibule was of a standard and approved type and was properly installed. Plaintiff admitted she could have seen the doors had she been looking toward them. Because the record showed no negligence on the part of defendants the judgment entered below in plaintiff's favor in her action to recover for her injuries was set aside and final judgment was entered for defendants.
Error to a judgment of the Court of Law and Chancery of the city of Norfolk. Hon. J. Sydney Smith, Jr., judge presiding. The opinion states the case.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
Shirley Ginn, hereinafter referred to as plaintiff, filed a motion for judgment against Mrs. L. Snyder, B. P. Snyder, and S. Snyder, *9 individually and as partners trading as L. Snyder's Department Store, to recover damages arising out of personal injury claimed by her to have been received due to the negligence of the defendants in permitting a dangerous and hazardous condition to exist on their premises while she was on the said premises as an invitee.
Defendants answered, denied negligence on their part, and alleged that the injury suffered by the plaintiff was caused by her own negligence. At the close of plaintiff's testimony, and at the conclusion of all the testimony, the court overruled the motion of defendants to strike the plaintiff's evidence. There were a verdict and judgment for the plaintiff, and we granted this writ of error.
There are numerous assignments of error relating to the rulings of the court in refusing to strike the evidence, in admitting certain evidence, and in the granting and refusal of instructions; but in our view it is necessary to consider only the question whether there was any proof that the defendants were guilty of negligence.
Shirley Ginn is a young married woman, twenty-five years of age, and an employee of the Health Department of the City of Norfolk, Virginia. Defendants are the owners and operators of a department store, located at the corner of City Hall avenue and Church street in Norfolk.
On April 25, 1958, Mrs. Ginn entered defendants' store from its City Hall avenue entrance at 11:45 o'clock a.m. After making a purchase, she started to leave the store by way of the exit to Church street. She had never used the Church street exit before, and her assigned reason for using it then was because it was a bright, clear day, and she desired to walk around the building on her way back to her office.
The Church street exit is through a plate glass enclosed vestibule. A photograph of the vestibule shows that it is equipped with dual plate glass doors, one set within the store and the second set on the side next to Church street. Each of the dual doors is three feet in width, framed in metal, with a metal cross-bar handle extending across the middle of its full width. Above each doorway is a framed plate glass panel, and on the sides of each doorway are plate glass framed panels extending from the floor to the ceiling. Each sidewall has a single plate glass panel extending also to the ceiling. Each side panel and the doors are each fully framed, including baseboards at their lower ends. Below the inside doors is a horizontal threshold strip, and there are some small fastenings, locks and catches visible on *10 the doors. All of the glass is transparent, and the framing is clearly defined and readily distinguishable from the glass.
Mrs. Ginn said that on her way out of the store, she stopped to look at some jewelry at a counter located within the store, immediately in front of the Church street doorway. She said she stepped away from that counter to go to the Church street exit; and that the only thing she saw were the doors on the outside of the vestibule, that is, on the Church street side of the store. She did not observe the handles on the inside doors, nor their framework. Thinking her way was clear, she walked into the glass in the panel on the left of the inside door and severely injured her head. She said that her failure to see the inside doors and their fixtures was because she approached the exit at an angle, and saw only the outside doors. On cross-examination, she admitted that if she had been looking "straight ahead" she could have seen the inside doors as distinguished from the left side glass panel. Furthermore, she identified the photograph in evidence, agreed that it correctly showed the conditions which existed in the store, and then repeated her admission that she could have seen the inside doors if she had been looking toward them.
On behalf of the defendants, Bernard B. Spigel testified that after completing a course in architecture, he had been engaged in that profession since 1920; that he had specialized in commercial buildings from Brooklyn, New York, to Norfolk; that he designed the Church street entrance and exit at the defendants' store; and that it was a standard and approved design for such establishments, both as to equipment and installation, and generally in use in stores throughout the country. He pointed out that there was a complete metal frame around each one of the doors; that the glass panels on both sides of the doorway were also completely framed; and that the glass in the doors was held in place by what he termed "the stiles of the door, and the cross-bars," and that this easily distinguished the doors from the glass panels.
Cross-examination of Spigel showed that one looking through the plate glass panels could see the outside doors; but that this in no way prevented anyone from seeing the inside doors. He also said that the object of using transparent glass was to enable the public to see the merchandise in the store.
The contractor, who installed the door and who had been in the contracting business for many years, stated that it was a standard and approved door for stores used by merchants generally; that it *11 was installed in accordance with the architect's plans and specifications; that there were several buildings in Norfolk which had the same type of entrance; and that he had installed similar doors in other places.
An examination of the picture of the doorway plainly discloses that the situation and condition of the inside doors were completely open and obvious to any person who was looking in their direction.
In Knight Moore, 179 Va. 139, 18 S.E.2d 266, we reviewed and discussed the principles governing the liability of the owner of premises to invitees. There we said that the owner of premises is not an insurer of the invitee's safety thereon. He must use ordinary care to render the premises reasonably safe for the invitee's visit, and notice of an unsafe condition is not required where that condition "is open and obvious, and patent to a reasonable person exercising ordinary care for his own safety." (179 Va., supra, 145, 146)
In this connection, see also Williamsburg Shop Weeks, 201 Va. 244, 110 S.E.2d 189, where we held that a storeowner is required to exercise reasonable care to see that his premises are kept in a reasonably safe condition for use of an invitee; but that an invitee on his premises could not close her eyes and walk on the premises without regard to open and obvious conditions, apparent to anyone who looks, and expect to recover for an injury thereby sustained.
Plaintiff relies upon Crocker WTAR Radio Corporation, 194 Va. 572, 74 S.E.2d 51; but the facts in that case are not similar to those here. In that case there was a highly polished floor with two levels, one slightly lower than the other, and of exactly the same coloring. There were bright kleig lights shining from above, which gave the obvious impression that it was a continuous floor without any stepdown; and, therefore, presented a condition of danger neither open nor obvious.
There is no evidence in the record showing that defendants were guilty of the negligence charged. On the other hand, the evidence shows, without conflict, that the injury sustained by Mrs. Ginn was due to her own thoughtlessness or lack of care. The conditions around the doorways were open and obvious, and Mrs. Ginn would not have suffered the injury sustained by her had she exercised ordinary care in looking ahead as she started to walk from the store. Consequently, she was the author of her own misfortune.
For the foregoing reasons, the judgment complained of is reversed; *12 the verdict of the jury set aside; and final judgment here entered for the defendants.
Reversed and final judgment. | 01-03-2023 | 10-30-2013 |
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