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https://www.courtlistener.com/api/rest/v3/opinions/1329382/ | 102 Ga. App. 563 (1960)
116 S.E.2d 881
BROOME
v.
CAVANAUGH et al.
38459.
Court of Appeals of Georgia.
Decided October 11, 1960.
John L. Coney, for plaintiff in error.
Frank A. Bowers, John Brewer, contra.
NICHOLS, Judge.
1. The plaintiff by his declaration in attachment sought to recover money paid to the defendants pursuant to a written contract; the averments of paragraph 3 of plaintiff's declaration in attachment being as follows: "Petitioner *564 contracted with defendants partnership, an employment agency, for their services in securing him a permanent position with a local employer, subject to limited travel, said contract was entered into in writing on or about the 15th day of January, 1960, at the defendants' office upon their printed form; a copy of which was not given petitioner, and the precise terms of which are, therefore, not all known to petitioner, but are well known to the defendants."
Paragraph 1 of the defendants' demurrer attacks the declaration in attachment on the grounds that "nowhere in the declaration is it alleged that the written agreement between the plaintiff and the defendants contained a provision that any employment secured for the plaintiff by defendants would be subject to limited travel on the part of the plaintiff, none of the reference to `limited travel' in the declaration alleging that such conditions were a part of the written contract between the parties, and not being a part of the written contract, the defendants would not be bound thereby." This ground of demurrer is not well taken. The language employed in paragraph 3 of the plaintiff's declaration in attachment, as set out above, clearly refutes this contention of the defendants; the pertinent part thereof being that the purpose of the contract, which is alleged to be in writing, was to secure a permanent position for the plaintiff with a local employer, with limited travel. The language here used was sufficient to withstand general demurrer, and the trial court erred in sustaining ground 1 of the defendants' demurrer.
Ground 2 of the demurrer addresses itself to paragraph 7 of the plaintiff's declaration in attachment and is likewise without merit for the reason that the plaintiff's amended paragraph 7 of the declaration in attachment supplies the deficiency complained of. The trial court erred in sustaining this ground of the defendants' demurrer.
Ground 3 of the defendants' demurrer asserts that the plaintiff's declaration in attachment shows on its face that the payment made to the defendants by the plaintiff, which he seeks to recover back in this action, was a voluntary payment, and, as such, cannot under Code § 20-1007, be recovered.
Code § 20-1007, supra, is as follows: "Payments of taxes or *565 other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception or fraudulent practice used by the other party, are deemed voluntary, and cannot be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule."
Obviously the alleged facts here are not such as to bring this case within the purview of Code § 20-1007, supra. This action is based on an alleged written contract, the plaintiff alleging in his declaration in attachment, as amended, that he paid the defendants a fee in advance under a written contract for securing him a "permanent position with local employer with limited travel," when in fact the position secured by the defendants for him was not a "permanent position with local employer with limited travel." Since the purpose for which the plaintiff parted with his money failed of accomplishment, the defendants cannot in good conscience retain the money, and the plaintiff is entitled to have same returned to him. Chappas v. Sandefur, 93 Ga. App. 67 (91 S.E.2d 46). The petition alleged a good cause of action as against a general demurrer, and the trial court erred in sustaining same.
2. Under the above holding in division one of this opinion, the plaintiff's other assignments of error are now moot and will not be considered by the court.
Judgment reversed. Bell, J., concurs. Felton, C. J., concurs in the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329363/ | 216 Ga. 326 (1960)
116 S.E.2d 554
RAPER
v.
SMITH.
20949.
Supreme Court of Georgia.
Argued September 12, 1960.
Decided October 6, 1960.
Vernon W. Duncan, for plaintiff in error.
ALMAND, Justice.
John W. Smith filed in Cobb County Court of Ordinary a motion to vacate and set aside an order of that court allowing a year's support to the widow and minor children of Cecil W. Raper out of the estate of Cecil W. Raper. The motion alleged that on August 4, 1958, Mrs. Raper offered for probate and probated the last will of her husband, and qualified as executrix; and that, in May, 1959, she applied for a year's support for herself and her two minor children which was allowed by order in July, 1959. It was alleged that Smith was a creditor of Cecil W. Raper in a named sum represented by six promissory notes, and had filed a notice of his claim with the *327 executrix; and that the executrix has paid part of the creditors of the estate whose claims were equal or inferior in dignity to Smith's claim. The prayers were: (a) that the judgment allowing a year's support be set aside, and (b) that, if the judgment not be set aside, it be modified so as to provide that the judgment shall be inferior to the claim of Smith. A general demurrer was interposed by Mrs. Raper. After a hearing, the ordinary entered an order modifying the judgment allowing a year's support, as prayed. On appeal to the superior court, the general demurrer to the motion was overruled, and this order on appeal to the Court of Appeals was affirmed. Raper v. Smith, 101 Ga. App. 557 (115 S.E.2d 234). We granted Mrs. Raper's petition for the writ of certiorari to the Court of Appeals.
No attack is made on the regularity of the year's support proceedings, and it will be presumed that the procedural requirements necessary for the rendition of the award were complied with. In Goss v. Greenaway, 70 Ga. 130(1), it was held: "While lapse of time between the death of a husband and the application by his widow for a year's support, during which time she lived upon the land and made use of the personalty of her deceased husband, may furnish a good ground to defeat the application before the ordinary, yet when the final judgment of that court has been rendered in the case, it is too late to attack it, especially before another court, except for causes apparent upon the face of the record, showing a want of jurisdiction either of the person or subject-matter." It does not appear that Smith, as a creditor, or anyone else filed any objections to the return of the appraisers. No objections being filed to the return, when the ordinary recorded the return, it became in effect a binding judgment conclusive upon all parties interested. Howell v. Howell, 190 Ga. 371 (9 S.E.2d 149); Jackson v. Warthen, 110 Ga. 812 (36 S.E. 234). Only causes apparent on the face of the record, such as want of jurisdiction of the person or subject matter, can be considered. White v. Wright, 211 Ga. 556 (87 S.E.2d 394). "A judgment approving the return of commissioners setting aside a year's support, where all the proceedings are regular, can not be attacked as fraudulent because interested parties could have successfully resisted the judgment had *328 they interposed timely objection." Reynolds v. Norvell, 129 Ga. 512(3) (59 S.E. 299). In Holamon v. Jenkins, 50 Ga. App. 129(3) (177 S.E. 262), it was held that, where no objection was filed to the return of the appraisers setting apart the entire estate of the decedent as a year's support for the widow, when the return was recorded by the ordinary, he thereby exercised the full extent of his powers as ordinary with reference to the return, and his act in modifying the return by making the award subject to the payment of a stated debt of the decedent was invalid and inoperative.
The motion to modify or set aside the award of the year's support setting forth no valid reason for such an order, the trial court erred in overruling the general demurrer to the motion and the Court of Appeals erred in affirming the order of the trial court.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329366/ | 102 Ga. App. 469 (1960)
116 S.E.2d 654
CITY OF ATLANTA
v.
BARRETT, by Next Friend.
38395.
Court of Appeals of Georgia.
Decided September 7, 1960.
Rehearing Denied September 28, 1960.
Newell Edenfield, J. C. Savage, Robert S. Wiggins, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers & McClatchey, Miles J. Alexander, contra.
*470 CARLISLE, Judge.
Julian H. Barrett, for whom it was alleged no guardian had been appointed at the time the suit was brought and who was alleged to be mentally and physically incapable of conducting his own affairs, by and through his next friend, H. E. McCarley, filed suit in the Superior Court of Fulton County for damages against the City of Atlanta. The petition alleged that the plaintiff was injured on September 20, 1957, when he ran his automobile into a ditch, negligently maintained by the defendant, across Piedmont Road. No issue is made in this court as to the sufficiency of the pleadings to state a cause of action for actionable negligence on the part of the defendant, and for this reason the allegations as to this element of the case need not be set out in detail here. The petition alleged that when his automobile struck the ditch and was thrown out of control thereby, it hit a concrete railroad bridge; that the plaintiff received multiple fractures of his body and numerous head injuries which resulted in immediate and permanent mental and physical disability which will render it impossible for him to perform gainful employment for the remainder of his life; that the notice required to be given the defendant municipality under Code Ann. § 69-308 of the injuries and damages sustained has been given to the defendant by registered letter which was mailed March 14, 1959. The defendant filed general and special demurrers to the petition. The court entered an order overruling the general grounds of the demurrer and sustaining certain of the special demurrers. The exception here is to so much of the order as overruled the general demurrers.
In the argument of counsel before this court, the sole question presented for decision is whether, under the facts alleged in the petition, the running of time under the provisions of Code Ann. § 69-308 requiring that notice of injuries or damages be given to a municipality within six months of the date of such injuries or damage sustained is tolled under the provisions of Code § 3-801 so that the plaintiff is not barred by his failure to give the statutory notice to the municipality within six months from the date his right of action on account of the injuries and damages sustained accrued.
*471 Code Ann. § 69-308 reads as follows: "No person, firm or corporation, having a claim for money damages against any municipal corporation on account of injuries to person or property, shall bring any suit at law or equity against said municipal corporation for the same, without first, and within six months of the happening of the event upon which such claim is predicated, presenting in writing such claim to the governing authority of said municipality for adjustment, stating the time, place, and extent of such injury, as nearly as practicable, and the negligence which caused the same, and no such suit shall be entertained by the courts against such municipality until the cause of action therein shall have been first presented to said governing authority, for adjustment: . . ." It is well established in Georgia that failure to comply with the provisions of this law within the time required thereby is a bar to any right of action against a municipality. (Saunders v. City of Fitzgerald, 113 Ga. 619, 38 S.E. 978; Newton v. City of Moultrie, 37 Ga. App. 631, 141 S.E. 322), and that the giving of such notice is a condition precedent to the bringing of any action against a municipality. City of Atlanta v. Scott, 66 Ga. App. 257 (18 S.E.2d 76).
While it is true that the Supreme Court has held in at least one case that the requirement of notice is a mere segment or element of the general subject and is inseparable from the requirement as to the time within which such notice must be given (City of Atlanta v. Hudgins, 193 Ga. 618, 631, 19 S.E.2d 508), no ruling has been called to our attention which holds that the time element is not a statute of limitation. A statute of limitation is any law which fixes the time within which parties must take judicial action to enforce rights or else be thereafter barred from enforcing them. Prudential Insurance Co. v. Sailors, 69 Ga. App. 628 (4) (26 S.E.2d 557). While the giving of the notice is a condition precedent to the bringing of an action, the giving of such notice is at once part and parcel of the enforcement of the right and it is an inseparable part of the bringing of the action. It is a part of the procedure for enforcing the right and as such it must affirmatively appear in the petition, either in the body thereof or by an exhibit thereto that such *472 notice has been given. A petition which does not thus affirmatively show the performance of the condition precedent is subject to general demurrer. Hooper v. City of Atlanta, 26 Ga. App. 221 (3) (105 S.E. 723). We, therefore, conclude that the requirement that the notice be given within six months from the date of the injuries or else that the action therefor be forever barred is itself a statute of limitation and subject to the general law of this State with respect to the tolling of statutes of limitation.
Code § 3-801 provides: "Infants, idiots, or insane persons, or persons imprisoned, who are such when the cause of action shall have accrued, shall be entitled to the same time, after the disability shall have been removed, to bring an action, as is prescribed for other persons." The provisions of this Code section are made applicable to tort actions by the provisions of Code § 3-1005. Since the petition in this case shows that the plaintiff was wholly and completely mentally and physically disabled from conducting his own business and own affairs, and that this condition continued at the time the suit was filed, his failure to give the statutory notice to the city within six months from the date of the occurrence did not bar him from bringing the action where the petition also shows that, in fact, such notice was given prior to the institution of the suit. The petition in this case shows that at the time it was filed the plaintiff was still incapacitated, and this clearly satisfies this requirement.
To give to Code §§ 3-801 and 69-308 the construction contended for by the plaintiff in error would lead to strained, unnatural and inequitable results. Such a construction is not to be desired and should not be made unless the sections under consideration are capable of no other interpretation. Lombard v. Trustees of Young Men's Library Association Fund, 73 Ga. 322. Such a construction would lead to the anomalous result that a plaintiff situated as is the plaintiff in the instant case would not have the running of the statute of limitation tolled if his right of action happened to be against a municipal corporation where another plaintiff with a like claim but against another class of defendant would have the statute tolled. Nothing in the law requires such an unjust construction or application thereof. We will not construe the law so as to *473 impute to the General Assembly an intent that an incapacitated plaintiff's rights might be preserved or not, dependent upon who happened to be the party liable to him. No consideration of public policy or of municipal law requires this court to so extend municipal immunity from suit.
There is nothing in Jones v. City Council of Augusta, 100 Ga. App. 268 (110 S.E.2d 691) which requires a ruling different from that now made. There, no question was presented for decision by this court as to whether the statute had been tolled by virtue of the infancy of the plaintiff involved, but on the contrary, the court expressly declined to pass on whether the six months' provision contained in the statute was binding as against a minor without the capacity for giving such a notice. The court merely held that when suit is brought it must appear that the condition precedent has been complied with. Furthermore, there the minor plaintiff was actually prosecuting a suit by and through his natural guardian who had merely failed to give the statutory notice before filing suit in his behalf, and having once undertaken to prosecute the suit as guardian, or as next friend, of the plaintiff, the procedural prerequisites must be complied with.
Judgment affirmed. Gardner, P. J., Townsend and Frankum, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329375/ | 116 S.E.2d 703 (1960)
STATE of West Virginia ex rel. Oza CLINE et al.
v.
Joe W. HATFIELD et al.
No. 12069.
Supreme Court of Appeals of West Virginia.
Submitted September 14, 1960.
Decided September 20, 1960.
*704 Jenkins & Jenkins, J. E. Jenkins, Jr., Huntington, for relators.
Martin C. Bowles, Leonard Higgins, Charleston, for respondents.
BERRY, Judge.
In this original proceeding in mandamus filed in this Court, the petitioners, seven citizens, voters and taxpayers of Mingo County, seek to compel the respondents, the duly qualified and acting ballot commissioners for Mingo County, to omit the name of respondent, Howard Chambers, as the Democratic candidate for Sheriff of Mingo County, from the ballot to be prepared for the general election to be held on November 8, 1960.
The petitioners allege that one Thurman Chambers was duly elected Sheriff of Mingo County at the general election in November, 1956, for the term expiring December 31, 1960; Thurman Chambers duly qualified and assumed the duties of the office of Sheriff of Mingo County on January 1, 1957. The respondent, Howard Chambers, was duly appointed and qualified as a deputy sheriff of Mingo County under Thurman Chambers and served until January 28, 1957. On January 28, 1957, Thurman Chambers died and on January 29, 1957, respondent Howard Chambers, was appointed by the Mingo County Court and took office as Sheriff of Mingo County and has been and now is Sheriff of Mingo County for the term which will expire on December 31, 1960.
The respondent, Howard Chambers, filed an answer, admitting the above, but adding that his appointment by the Mingo County Court was, pursuant to law, only until the next general election in November, 1958, and that, at the general election in November, 1958, he was elected to the unexpired term of Sheriff of Mingo County, which unexpired term extended from the election in November, 1958 to December 31, 1960. Howard Chambers, the respondent, in his answer, also denies the authority of the other respondent ballot commissioners to inquire into his eligibility or to omit his name from the official ballot for the general election to be held on November 8, 1960.
On September 8, 1960, a rule was granted by this Court returnable to September 14, 1960, at which time the matter was argued before the Court and submitted for decision on arguments and briefs. An order was entered by the Court on September 19, 1960, refusing the writ prayed for in this case. This opinion is written now giving the reasons for the refusal to grant the writ.
This is the latest of three cases that this Court has had before it since the primary election in May of this year on petitions for writs of mandamus to compel the board of ballot commissioners to omit the names of or to enjoin and restrain such board of ballot commissioners in three counties of this State from placing the names of duly nominated candidates for sheriff on the ballot to be voted on at the general election to be held November 8, 1960. The grounds or reasons for the disqualification and ineligibility of the candidates urged in each case are the same. That is, they are disqualified or ineligible to be elected sheriff in their respective counties because each has served as a deputy sheriff to the duly elected sheriff for the four year term beginning January 1, 1957 and ending December 31, 1960, under provisions of Article IX, Section 3 of the Constitution of West Virginia, which provides that a person who has acted as deputy sheriff for a sheriff duly elected to a full term is ineligible to be elected sheriff for the next succeeding full term. The writs were granted in two cases and refused in one.
In the case of State ex rel. Zickefoose et al. v. West et al., W.Va., 116 S.E.2d 398, and State ex rel. Duke v. O'Brien, W.Va., 117 S.E.2d 353, the writs were granted and the decisions were three to two. Judges Haymond and Berry dissented in both cases on the ground that the extraordinary proceeding of mandamus was not the proper remedy to be used in such cases because it compelled the board of ballot commissioners *705 to omit the names of the duly nominated candidates for sheriff from the ballot, which they had no authority or duty to do.
The title to public office should not be adjudicated upon application for mandamus. The proper remedies, as indicated in Judge Haymond's dissenting opinion in the Zickefoose case, are a quo warranto proceeding, a proceeding upon an information in the nature of a writ of quo warranto, or an election contest. See Code, 53-2-1 and Code, 3-9-2; Dryden v. Swinburn, 15 W.Va. 234; Gorrell v. Bier, 15 W.Va. 311; Dryden v. Swinburne, 20 W.Va. 89; State ex rel. Savage v. Robertson, 124 W.Va. 667, 23 S.E.2d 281; Orndorff v. Potter, 125 W.Va. 785, 25 S.E.2d 911; Irons v. Fry, 129 W.Va. 284, 40 S.E.2d 340; Slater v. Varney, 136 W.Va. 406, 68 S.E.2d 757, 70 S.E.2d 477.
The appropriate time to ascertain whether or not a candidate is ineligible to hold an office is after an election has been held electing such candidate to the office. In this case, it would be the general election and not the primary election. It may never be necessary to make such inquiry as such candidate may be defeated in the election, withdraw or die, and in many cases the ineligibility or disqualification of a candidate in an election may be cured; therefore, to disqualify a candidate in such case by mandamus before an election may inflict a grave injustice. Pack v. Karnes, 83 W.Va. 14, 97 S.E. 302; State ex rel. Lockhart, Sr. et al. v. Rogers, Mayor et al., 134 W.Va. 470, 61 S.E.2d 258.
It was in the Pack case which was decided in 1918 that the writ of mandamus was used for the first time by this Court to compel the board of ballot commissioners to remove the name of a duly and regularly nominated candidate from the ballot because of an alleged ineligibility or disqualification. It was not so used again until the Zickefoose case in 1960, and the reason given for the ineligibility or disqualification in the Pack case was later held by this Court not to be a disqualification or to render a candidate ineligible to hold office. State ex rel. Hall v. County Court of Gilmer County, 87 W.Va. 437, 105 S.E. 693; Varney v. County Court of Mingo County, 102 W.Va. 325, 135 S.E. 179; State ex rel. Bumgardner v. Mills, 132 W. Va. 580, 53 S.E.2d 416. If a quo warranto proceeding, a proceeding upon an information in the nature of quo warranto, or an election contest had been used in the Pack case instead of mandamus, perhaps the candidate who was nominated would not have been found to be ineligible or disqualified.
Except in the isolated instances of the Pack and Zickefoose cases, the writ of mandamus, as heretofore used in cases concerned with the right of a candidate to be on a ballot, has been issued to compel the board of ballot commissioners to place the name of a duly nominated candidate on the official ballot without inquiring into his eligibility and qualification, as such board is without the authority or power to inquire into such matters but has only the duty to place the name on the ballot if the candidate has been duly and regularly nominated and such result properly recorded and certificate issued thereon regular on its face. The decided cases indicate that it should be used only in the latter manner in such cases. State ex rel. McKnight v. Board of Ballot Commissioners of Wetzel County, 86 W.Va. 496, 103 S.E. 399; State ex rel. Harwood v. Tynes, 137 W.Va. 52, 70 S.E.2d 24; State ex rel. Schenerlein v. City of Wheeling, W.Va., 108 S.E.2d 788.
In the case of State ex rel. Duke v. O'Brien, supra, the petition clearly was for injunctive relief because the prayer was to enjoin, restrain or prohibit the board of ballot commissioners from placing the name of the duly nominated candidate for sheriff on the ballot. In other words, the writ of mandamus was used as an injunction to obtain equitable relief and Judges Haymond and Berry are of the opinion that it could not be so used. Not only should the writ of mandamus not be used for injunctive proceeding, but an injunctive proceeding cannot be used as a substitute for an election contest to determine *706 the eligibility or qualification of a candidate. See Evans v. Charles, 133 W.Va. 463, 56 S.E.2d 880; Lockard v. Wiseman, 139 W.Va. 306, 80 S.E.2d 427.
The reasons for not using mandamus in a case of this kind are clearly set out in the two dissenting opinions filed by Judges Haymond and Berry in the Zickefoose case, with exhaustive authorities cited. Reference is here made to those dissenting opinions with the citations of authorities showing that the writ of mandamus should not be used in such cases. Among them were the comparatively recent cases of State ex rel. McKnight v. Board of Ballot Commissioners of Wetzel County, 86 W.Va. 496, 103 S.E. 399; State ex rel. Harwood v. Tynes, 137 W.Va. 52, 70 S.E.2d 24; State ex rel. Schenerlein v. City of Wheeling, W.Va., 108 S.E.2d 788, which have not been overruled by this Court and still remain the law of this State.
It is true that the Zickefoose case apparently held the opposite to these decided cases because the question of eligibility to hold office was disposed of by a writ of mandamus before the candidate was elected. However, these cases were not specifically overruled and the reason for awarding the writ in the Pack case, which was used as authority for awarding the writ in the Zickefoose case, has been discredited. State ex rel. Hall v. County Court of Gilmer County, 87 W.Va. 437, 105 S.E. 693; Varney v. County Court of Mingo County, 102 W.Va. 325, 135 S.E. 179; State ex rel. Bumgardner v. Mills, 132 W.Va. 580, 53 S.E.2d 416.
In the case at bar, although the principle involved is the same as the Zickefoose and Duke cases, the facts are not identical. The candidate for sheriff, Howard Chambers, was appointed deputy sheriff to Thurman Chambers, his father, who had been duly elected and qualified as Sheriff of Mingo County on January 1, 1957, in which capacity he served for twenty-eight days. Howard Chambers was then appointed sheriff until the next general election which was in 1958, at which time he was elected to serve the unexpired term of Thurman Chambers until December 31, 1960. In the Zickefoose and Duke cases the candidates for sheriff were both appointed deputies to the sheriffs who are still serving their terms which expire December 31, 1960.
Judges Browning and Calhoun are of the opinion that there is no material difference between the two cases as the principle involved is practically the same, that is, that the respondent, Howard Chambers, is ineligible to be elected sheriff, succeeding the full term to which his father had been elected, his father having appointed him as his deputy before he, Thurman Chambers, died.
Judge Given is of the opinion that the respondent, Howard Chambers, is not ineligible to be elected sheriff in this case for the reason that he had been elected to serve an unexpired term, which is not a full term within the meaning of the provisions of Article IX, Section 3 of the Constitution of West Virginia and that this case is governed by the decision of this Court in the case of Gorrell v. Bier, 15 W.Va. 311.
Judges Haymond and Berry are again of the opinion, as indicated herein, that mandamus is not the proper remedy to be used in a case of this kind, the same position taken by them in the Zickefoose and Duke cases, for the same reasons as set out in detail in the dissenting opinions filed in the Zickefoose case and referred to herein.
Judge Given will file a concurring opinion, setting out his reasons for refusing to grant the writ in the case at bar.
A majority of the Court being of the opinion that the writ should not be granted for the reasons enunciated herein, the writ prayed for is denied.
Writ denied.
*707 GIVEN, Judge (concurring).
I concur in the action of the Court in denying the issuance of the writ prayed for by petitioners only because of the firm belief that the pertinent constitutional provisions do not prohibit the respondent candidate for the office of sheriff from being "elected" to that office.
The pertinent provisions of Section 3 of Article IX of the State Constitution read: "The same person shall not be elected sheriff for two consecutive full terms; nor shall any person who acted as his deputy be elected successor to such sheriff * * *". As pointed out in the Zickefoose and Duke cases, cited in the main opinion in the instant case, all agree that a deputy sheriff is, by virtue of such constitutional provisions, prohibited from serving as successor to a sheriff for whom he has served as deputy. It is my view, however, that the candidate in the instant proceeding does not fall within such prohibition, and that the Court is not warranted in extending the prohibition to a class of persons not expressly included within the constitutional provisions.
It may be noticed that the Framers of the Constitution expressly provided that no person shall be "elected" sheriff for two consecutive "full" terms. Yet in the next clause of the sentence, when making provision as to the election of a deputy as a "successor", the word "full" is omitted in relation to the term of the predecessor. I can not assume this omission to have been an oversight or an accident. If the provision does not say "full" term as applied to the person succeeded, and it most certainly does not, the Court, in my opinion, has no right to broaden the meaning of the constitutional provision to "full" term.
In the instant case the candidate is serving a term for which he was duly elected and as such candidate seeks election to succeed himself, not a sheriff who served a previous term. It is true, of course, that the term for which the candidate was previously elected, and is now serving, constitutes a part of the four year period for which Thurman Chambers was elected, but that, in my opinion, does not alter or affect the conclusion that the term now being served by the candidate, though a "short" term, is a definite constitutional term. Perhaps I need cite no authorities to the effect that constitutional and statutory provisions should be construed so as not to deprive a citizen of the privilege of holding office, unless required to do so by clearly expressed language. See, however, State ex rel. Thomas v. Wysong, 125 W.Va. 369, 24 S.E.2d 463; Isaacs v. Board of Ballot Commissioners, 122 W.Va. 703, 12 S.E.2d 510.
I have no difficulty in reaching the conclusion that mandamus is a proper remedy in the circumstances of this case, as held in the Zickefoose and Duke cases. In my view it is not merely a proper remedy, but the only available remedy. It must be noted that the constitutional prohibition, as to the class of persons included, denies to them the right to be "elected", a wholly different matter from the right to serve in or occupy an office, or a removal from office, yet it is argued that such persons must first be elected and then by some appropriate remedy ousted from office, before the constitutional provision can be given effect. That, in my view, would amount to a plain circumvention of the constitutional provision. Such a theory would not only require their "election", a thing clearly and expressly prohibited, but would also permit the holding of the office, at least from the date of qualification until the date of an effective final order of ouster.
In so far as I can determine, the only cogency in the position adhered to by those who argue that mandamus is not available in the circumstances of this case is the lack of a duty on the part of the ballot commissioners to act in such circumstances. I have no difficulty in finding such a duty, for there is an express command from the Constitution that a person falling within the prohibited class shall not be "elected", and it can hardly be denied that it is the duty of the ballot commissioners to respect and obey such a constitutional demand. *708 See Code, 3-5-4, as amended, and authorities cited in the Zickefoose case. "`Mandamus will not be denied on the ground that there is another remedy unless such remedy is equally beneficial, convenient and effective.' Pt. 1, Syl., Hardin v. Foglesong, 117 W.Va. 544, 186 S.E. 308." Point 1, Syllabus, State ex rel. Miller v. Board of Education of the County of Mason, 126 W.Va. 248, 27 S.E.2d 599, 600.
In Carter v. City of Bluefield, 132 W. Va. 881, 897, 54 S.E.2d 747, 757, this Court stated: "* * * The tendency in this jurisdiction is to enlarge and advance the scope of the remedy of mandamus, rather than to restrict and limit it, in order to afford the relief a party is entitled to when there is no other adequate and complete legal remedy. Cross v. West Virginia Central and Pittsburgh Railway Company, 35 W.Va. 174, 12 S.E. 1071 * * *". It would seem that if any situation would warrant the enlargement or advancement of the scope of mandamus, it would be in a situation where required to effectuate the true purpose and intent of a constitutional command, especially where such command is for the protection of the whole people, though I am not of the view that the broadening of the scope of mandamus is indicated or necessary in the instant proceeding. See Hardin v. Foglesong, 117 W.Va. 544, 186 S.E. 308; State ex rel. Looney v. Carpenter, 106 W.Va. 170, 145 S.E. 184; State ex rel. Simon v. Heatherly, 96 W.Va. 685, 123 S.E. 795; State ex rel. Hall v. County Court of Monongalia County, 82 W.Va. 564, 96 S.E. 966; Eureka Pipe Line Company v. Riggs, Sheriff, 75 W.Va. 353, 83 S.E. 1020; Dunlevy v. County Court of Marshall County, 47 W.Va. 513, 35 S.E. 956.
Neither am I of the view that in the Duke case "mandamus was used as an injunction to obtain equitable relief". In original proceedings in mandamus in this Court the writ is often moulded to conform with the exigencies necessitated by the circumstances of the particular case. In my view there is no substantial reason why a writ of mandamus should not issue, in a proper case, commanding the ballot commissioners to omit a name from the official ballot, as well as a writ commanding the ballot commissioners to place a name on the official ballot.
BROWNING, President (dissenting).
I respectfully dissent from the decision of this Court to deny the writ of mandamus as prayed for in the petition. It is my opinion that the facts in this case do not distinguish it from the recent proceedings of State of West Virginia ex rel. Zickefoose et al. v. West et al., W.Va., 116 S.E.2d 398; and State ex rel. Duke et al. v. O'Brien et al., W.Va., 117 S.E.2d 353. If further reference is made in this dissent to these cases they will be referred to as the Zickefoose or Duke case. The 5th Syllabus Point in the Zickefoose case is controlling: "A person who has acted as deputy for a sheriff duly elected to a full term is ineligible, under the provisions of Article IX, Section 3 of the Constitution of West Virginia, to be elected sheriff for the next succeeding full term."
Only two of the three Judges constituting a majority in this case would deny the writ on the ground that mandamus is not a proper remedy for the relief which petitioner seeks. It is apparent from a careful reading of the majority opinion and the dissenting opinions in the Zickefoose case, as well as the order in the Duke case, that this view is based upon the conviction that, since the Board of Ballot Commissioners has not been given the specific authority by statute to remove the name of a candidate from a ballot, or to refuse to place the name of a candidate upon a ballot, this Court is without authority in mandamus to require it to do so. This problem has been with this Court since the early case of Board of Supervisors of Mason County v. Minturn, 4 W.Va. 300. This Court there held that mandamus would not lie to review the action of the Board of Supervisors of Mason County in determining *709 that Minturn was not qualified to become supervisor of the county, though apparently elected to that office, since the Board of Supervisors under a statute then in effect had the power to determine the eligibility of the membership of the Board. No attempt will here be made to review the decisions of this Court between the decision in the Minturn case and that of Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281, 283, 36 L.R.A. 296. Suffice to say that the decisions of this Court during that period consistently held that in the absence of statute mandamus would not lie to determine the eligibility of candidates to be placed upon an election ballot. Most of those cases are cited in the Marcum opinion. It should be observed that even in the absence of statute the Virginia Court had held otherwise, as is also noted in the Marcum opinion. Judge Brannon wrote the opinion in the Marcum case, and, after reviewing the previous decisions of this Court and citing other authority, stated: "* * * I come to the conclusion that without statute aid, mandamus does not lie in this case. * * *" The issue in that case arose out of the holding of two nominating conventions in the Eighth Judicial Circuit in which each certified to the Ballot Commissioners a different nominee for judge. The Ballot Commissioners selected one and the other came to this Court for a writ of mandamus to require the Board of Ballot Commissioners to substitute his name for that of his opponent. The Court held that neither of the conventions was authorized to speak for the Democratic party and that the writ would be refused since mandamus "will not lie unless the relator shows a clear legal right to have the thing done, which he asks for. If the right be doubtful, the writ will be refused." The importance of this decision lies in the fact that the petition was considered upon its merits and not summarily rejected because mandamus was not the proper remedy in such circumstances. The reason for the change of viewpoint as between Marcum and the previous decisions upon this subject, by Judge Brannon, and all of the other Judges of this Court who served with him at that time, is clearly stated in the opinion. Just three years before this decision, the Legislature had made a significant change in the applicable law by Chapter 25 of the Acts of 1893. Succinctly is the new rule stated in Syllabus Point 4: "Section 89, c. 3, of the Code, as re-enacted in chapter 25, Acts 1893, in cases involving duties of ballot commissioners under said chapter, gives the writ of mandamus more scope than at common-law, rendering it a process to control them as to all actions ministerial or judicial." In the opinion Judge Brannon said in referring to the new legislation: "* * * it greatly enlarged that section, by providing, not only that officers under it should be compelled to perform their duties by mandamus from the circuit court, but gave a writ from the supreme court to compel any officer `to do and perform legally any duty herein required of him.' * * *."
In Pack v. Karnes et al., 83 W.Va. 12, 97 S.E. 281, this Court refused a writ of prohibition to restrain the Board of Ballot Commissioners of Mercer County from placing on the general election ballot the names of two persons alleged to be the nominees of the Democratic party solely upon the ground that prohibition would not lie for that purpose. Judge Poffenbarger in the opinion cited Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281, and the inference is clear that relief was denied solely upon the ground that petitioner had selected the wrong remedy. Seven days later in Pack v. Karnes et al., 83 W.Va. 14, 97 S.E. 302, 303, a proceeding in mandamus, the writ was granted directing the Board of Ballot Commissioners "to omit from the official ballot to be voted on at said general election November 5, 1918, the names respectively of said Shanklin and Holroyd."
If stare decisis means anything the issue which now perplexes this Court should have been resolved and laid to rest for all time on October 29, 1918, the day the second Karnes case was decided, but unfortunately *710 it was not. Two years later this Court decided the case of State ex rel. McKnight v. Board of Ballot Commissioners, 86 W.Va. 496, 103 S.E. 399, but strangely enough neither the Amendment to the statute of 1893, the Marcum case, nor either of the Karnes cases was mentioned in the opinion. It is apparent from the facts recited in the McKnight opinion that the petitioner was eligible to be elected and to hold the office which he sought in Magnolia District of Wetzel County. Thus, upon the merits, the writ should have been awarded against the Board of Ballot Commissioners, but, disregarding and not citing the decisions of this Court subsequent to the statutory Amendment of 1893, the only syllabus point would indicate that the writ was awarded solely for the reason that: "* * * the Board of Ballot Commissioners have no authority to institute an inquiry for the purpose of determining the question of his legal qualifications to hold such office." I am completely in accord with that statement and, as far as I know, in none of the three recent proceedings in which this question has arisen no Judge of this Court has contended to the contrary. Perhaps some significance may be attached to the fact that in the McKnight case, and in some subsequent decisions citing it, the Board has set itself up as a judicial tribunal to inquire into the eligibility of the prospective candidate. This Court in such cases disregarded the finding of the Board and granted the writ to the petitioner who was the prospective candidate. Now, in the second Karnes case the relator was a third party who instituted the proceeding in mandamus as a "citizen, tax payer and voter." [83 W.Va. 12, 97 S.E. 303] The 1st Syllabus Point of that case specifically holds that such a person may maintain mandamus to compel a Board of Ballot Commissioners to discharge its duty lawfully in respect to the preparation of ballots for a general election. Thirty-two years after the McKnight case this Court decided the case of State of West Virginia ex rel. Harwood v. Tynes et al., 137 W.Va. 52, 70 S.E.2d 24. This was an original proceeding in mandamus in this Court by the petitioner seeking a writ to compel the Board of Ballot Commissioners of Cabell County to place her name on the official ballot as a candidate for the office of Democratic committeewoman from the 7th Ward of the City of Huntington. Her certificate was in the proper order, her filing fee had been paid, but the Board, questioning her allegiance to the Democratic party, refused to place her name on the ballot, and in its answer the respondents defended their action upon the ground that petitioner was not "openly known" to be a bona fide member of the Democratic party, as required by the provisions of Code, 3-4-6, as amended. The evidence in the form of affidavits was in conflict upon this point. It seemed clear that the petitioner had been registered as a Republican from 1943 to 1952, but she had changed her registration and affiliated herself with the Democratic party. Upon the merits of this case this Court very properly granted the writ. Jane Harwood may have been guilty of joining the church on Saturday night and wanting to sing in the choir the next day, but that was not sufficient reason for refusing her a place on the ballot for the position she sought. However, the 1st Syllabus Point of the Harwood case is a quotation of the single syllabus point in the McKnight case. The legislative Amendment of 1893, the Karnes cases and the Marcum case were ignored. I reiterate that I have no quarrel with the proposition that a Board of Ballot Commissioners is not empowered to judicially determine the eligibility of a candidate for any office as distinguished from the right of a court to judicially determine that issue and control the action of such a Board in mandamus.
This question next arose in Adams v. Londeree, 139 W.Va. 748, 83 S.E.2d 127, 130, and in that case, for the first time since Pack v. Karnes, 83 W.Va. 14, 97 S.E. 302, the petitioners were third parties, citizens and voters who sought by mandamus to compel the Ballot Commissioners of the City of South Charleston "to strike the *711 name" of the Democratic candidate for the office of Mayor of that city from the ballot for the general election which was shortly thereafter to be held. The charter of that city provided that no person was eligible to the office of Mayor unless "at the time of his election" he was legally entitled to vote in the town election for a member of the common council. It was contended that Londeree was not an eligible voter, inasmuch as he lived within the area of the United States Naval Reservation. It should be observed that Londeree's name had been placed upon the ballot at the time this proceeding in mandamus was instituted in this Court. The question of whether Londeree was qualified to vote because of his residence in the Naval Reservation, which was within the geographical boundaries of the City of South Charleston, caused this Court great concern. The Court's opinion consisted of twenty-four pages and Judge Haymond wrote an able dissent of twenty-three pages. The Ballot Commissioners contended that mandamus would not lie and cited State of West Virginia ex rel. Harwood v. Tynes et al., 137 W.Va. 52, 70 S.E.2d 24; and State ex rel. McKnight v. Board of Ballot Commissioners, 86 W.Va. 496, 103 S.E. 399. This Court almost summarily dismissed the holdings of those cases stating in the opinion that lack of jurisdiction of the Board of Ballot Commissioners to make an independent investigation to determine the qualifications or eligibility of a candidate for public office could not "be determinative of jurisdiction of a court having original jurisdiction in mandamus. Defendant members of the board of ballot commissioners hold office by virtue of the election laws, and Code, 3-5-41, provides that `Any officer or person, upon whom any duty is devolved by in this chapter [on Elections] may be compelled to perform the same by writ of mandamus.'" [139 W.Va. 748, 83 S.E.2d 131]. This sentence constitutes one paragraph of that opinion: "We conclude, therefore, that the action of mandamus, in the circumstances of this case, was available to relators, and it was not prematurely instituted." The dissenting opinion was directed solely to the merits of the case and not the remedy. It appeared that the Court had returned to the principles laid down in Pack v. Karnes, 83 W.Va. 14, 97 S.E. 302, if in the intervening cases it had by decision or dicta departed therefrom. However, in State of West Virginia ex rel. Schenerlein v. City of Wheeling, W.Va., 108 S.E.2d 788, 790, decided on May 12, 1959, this Court in a three to two decision reversed the judgment of the Circuit Court of Ohio County wherein a writ of mandamus was refused against the City Clerk of the City of Wheeling, who is the official that acts in the capacity of Ballot Commissioner for municipal elections. The petitioner was a candidate for City Council in one of the wards of that city and the clerk had refused to place his name on the ballot on the ground that he was not a resident of the City of Wheeling. In the opinion the Court said: "* * * The matter of his eligibility or qualifications, if it was desired to question same, should have been left for disposition until a later date. This matter has been passed on by this Court in prior decided cases. * * *", citing State ex rel. McKnight v. Board of Ballot Commissioners, 86 W.Va. 496, 103 S.E. 399; and State ex rel. Harwood v. Tynes (Board of Ballot Commissioners), 137 W.Va. 52, 70 S.E.2d 24. The Londeree case was distinguished, but there was no reference to the older cases heretofore cited. Again, if any significance can be attached to it, the petitioner was the prospective candidate and the defendant was the Ballot Commissioner. The petitioner, or petitioners, in the Zickefoose and Duke cases, as in this case, are third parties, voters and citizens seeking to remove from the ballot an alleged ineligible candidate for sheriff by proceedings in mandamus. Mandamus is not a writ of right. The granting or refusal of a writ of mandamus is discretionary with the Court and governed by equitable principles. It issues only to prevent instead of to promote injustice. Drainage Dist. No. 4 of Dunklin County, Mo. v. Murphy, 8 Cir., 119 *712 F.2d 390; 55 C.J.S. Mandamus §§ 2, 9. It is not too speculative to presume that the Court, in deciding those cases in which the prospective candidate was the petitioner, and in which the writs were awarded, gave some consideration to the fact that the Boards of Ballot Commissioners had illegally constituted themselves as courts of inquiry to investigate and pass upon the eligibility of the respective candidates, and refused to condone such procedure by denying the writ sought. Furthermore, the evidence as to eligibility was at best conflicting or clearly preponderated in favor of the candidate. The 2nd Syllabus Point of State ex rel. Morrison et al. v. Freeland, 139 W.Va. 327, 81 S.E.2d 685, 686, reads: "Where a statute requires that a person to be elected to office shall have a specific qualification at the time of his election, the requirement is not satisfied by the removal of the disqualification after election." The disqualification of the respondent in this proceeding comes from a higher source of authority than a statute. It is contained in the organic law of this State and has been there unchanged since the formation of the State in 1863.
There has been too much "distinguishing" of previous decisions of this Court in the opinions of the recent series of cases in which this issue has arisen. In the words of Samuel Butler, they "could distinguish and dividea hair `twixt south and southwest side." I would overrule or disapprove the language used inconsistent therewith in every decision of this Court subsequent to Pack v. Karnes, 83 W.Va. 14, 97 S.E. 302, that is not in accord with the clear rule laid down in that case upon the question of whether mandamus is a proper remedy by which this Court may direct a Board of Ballot Commissioners to remove, or not place upon a ballot, the name of a candidate for office where his ineligibility to be elected thereto is clearly shown by the statute or organic law of this State, without regard to the propriety of the Board's conduct in the matter.
Finally, an election contest, a quo warranto proceeding, or a proceeding upon an information in the nature of quo warranto, are not adequate remedies to restrain sheriffs and deputy sheriffs from violating the provisions of Article IX, Section 3, of the Constitution. Only defeated candidates may contest an election, and they can not thereby make themselves eligible for the office they seek. It is not likely that such a defeated candidate would bear the expense incident to a contest without hope of reward. A proceeding in quo warranto to test the eligibility of a person apparently elected sheriff of a county may be prosecuted only by the Attorney General of this State, or the Prosecuting Attorney of the county affected in their discretion. If for a good or unworthy reason such an official chose not to proceed in this manner he could not be forced to do so. A proceeding upon an information in the nature of quo warranto may be prosecuted only by "an interested person." A casual examination of the Court's opinion, and the dissenting opinion, in State ex rel. Morrison et al. v. Freeland, 139 W.Va. 327, 81 S.E.2d 685, 691, is sufficient to indicate how remote the chance would be for any person to meet the requirements of an "interested person" in a proceeding to oust an illegally elected sheriff.
I would grant the writ of mandamus as prayed for in the petition. I am authorized to say that Judge CALHOUN concurs in the views expressed in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329437/ | 214 Ga. 776 (1959)
107 S.E.2d 655
THOMPSON
v.
THOMPSON.
20358.
Supreme Court of Georgia.
Argued February 9, 1959.
Decided March 6, 1959.
Myrick, Myrick & Richardson, for plaintiff in error.
Alton D. Kitchings, contra.
ALMAND, Justice.
The judgment under review is one dismissing the petition of the plaintiff in error for a divorce.
L. A. Thompson filed his suit for a divorce against M. E. Thompson in Chatham Superior Court on September 10, 1958. The suit was docketed as No. 332. Process was issued, and the sheriff's return shows that the petition was personally served on *777 the defendant on November 17, 1958. M. E. Thompson filed her suit for divorce, temporary and permanent alimony, and for custody of their minor children against L. A. Thompson on September 10, 1958. This suit was docketed as No. 336. Process was issued, and L. A. Thompson was personally served on September 15, 1958.
L. A. Thompson filed a motion to dismiss the suit of M. E. Thompson, which the court treated as a plea in abatement, on the grounds that the two suits were between the same parties, upon the same cause of action, and since his suit was pending at the time the wife's suit was filed, her suit should be dismissed (abated). The trial judge found as a matter of fact that the husband's suit was filed, first, and that after service the time from which the action is pending relates back to the time of filing; and sustained the husband's motion to dismiss (abate) his wife's suit.
It is contended by the wife that, since the petition and process in her suit were served on the husband prior to the time she was served with the petition and process in his suit, her action was pending first, and his suit and not hers should be abated.
Code § 24-2714(5) requires the clerk of the superior court to keep an issue docket, on which shall be placed all civil cases pending in their respective courts, in which an issue to be tried by a jury is made or likely to be made, and all cases shall be entered and stand for trial in the order in which they come into court, without reference to the nature of the case. Code § 81-112 as amended (Ga. L. 1946, pp. 761, 767) provides that the clerk shall indorse upon every petition the date of its filing in office, "which shall be considered the time of the commencement of the suit." This court has held that the time of the commencement of a suit is the date of filing as entered upon the petition where such filing is followed by appropriate service. Cox v. Strickland, 120 Ga. 104 (7, 10) (47 S.E. 912, 1 Ann. Cas. 870); Sweat v. Barnhill, 171 Ga. 294 (6) (155 S.E. 18).
The record in this case discloses that both suits were filed on September 10, 1958, during the September term of Chatham Superior Court, the husband's suit being filed prior to the wife's suit; and that, after a purported service on the wife of the husband's *778 suit on September 22, 1958, she filed a traverse to the return of service and on November 17, 1958, still during the September term of court, pursuant to an order of the court, the wife was personally served with a copy of the petition and process in the husband's suit. Under these facts, which the court found to be true, the husband's action for divorce was pending at the time the wife's suit was filed, and it was not error to dismiss or abate the wife's suit.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3341612/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
The plaintiff has instituted this action to recover for personal injuries sustained as a result of an intentional assault of the plaintiff by the defendant. The defendant was defaulted for failure to appear and the matter proceeded as a hearing in damages.
The evidence established the plaintiff sustained an ecchymosis of her left eye and lower lip with no permanent injury. There was no report from the dentist to support the plaintiff's claim of a chipped tooth. CT Page 7666
The plaintiff also claimed lost earnings of $352.00 gross earnings per week from March 6 to May 2, 1989. However, there was no evidence presented from her employer to establish either her net earnings or the actual period of time she lost and therefore the burden of proof to establish her lost earnings had not been satisfied.
Based on the evidence presented and the nature of the injury sustained by the plaintiff, the court awards the medical bills of $321.00; lost earnings for two weeks in the amount of $600.00 and pain and suffering of $500.00 for the total sum of $1,421.00.
Because of the intentional nature of the defendant's action, the plaintiff is also awarded $1,000.00 punitive damage.
Therefore, judgment should enter for the plaintiff for the sum of $2,421.00.
HOWARD F. ZOARSKI, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1329483/ | 116 S.E.2d 351 (1960)
253 N.C. 176
A. Turner SHAW, Jr., Administrator of the Estate of Harry K. Musselman, Deceased,
v.
Paul G. SYLVESTER, Administrator of the Estate of Otto W. Becker, Deceased.
No. 173.
Supreme Court of North Carolina.
October 12, 1960.
*354 Charles F. Blanchard, Raleigh, and Robert L. Farmer, for plaintiff, appellant.
Joseph C. Olschner, Jacksonville, for defendant, appellee.
HIGGINS, Justice.
Plaintiff presents three assignments of error: (1) Failure to permit Sgt. Etherage to give his opinion that Becker was thrown from the left door of the Ford; (2) failure to hold Sgt. Etherage qualified as an expert "in the field of highway traffic reconstruction"; (3) failure to permit the plaintiff to go to the jury.
The evidence in the case was ample to show the defendant's intestate was the owner and one of the two occupants of the vehicle at the time of the wreck. It is ample to show that the driver was operating at approximately 80 miles per hour and that driver negligence proximately caused the death of both occupants.
Is there sufficient evidence to show defendant's intestate was the driver? This Court held in Parker v. Wilson, 247 N.C. 47, 100 S.E.2d 258, that ownership alone is not sufficient to permit a reasonable inference the owner, though in the vehicle, was the driver at the time of the wreck.
Plaintiff sought to qualify Sgt. Etherage as an expert in the reconstruction of automobile accidents and have him testify in answer to a hypothetical question that in his opinion Becker was thrown from the left door of the car and was, therefore, the driver. The facts upon the basis of which he formed the opinion were: The Ford coupe in which Becker and Musselman were riding left the hard surface of the road going south at a speed of 80 miles per hour. Tire marks and furrows plowed in the shoulders, increasing in width and depth, extended for 187 feet. At that point there was a break (indicating the vehicle left the ground) for 37 feet, at which point there were additional marks, and further on another break of 55 feet (indicating the vehicle again left the ground.) A considerable distance beyond, the vehicle came to rest in the creek. The left door was gone. The right door was open and folded back into the fender. Both sides of the vehicle and the top were crumpled. The body of Becker was approximately 50 or 60 feet from the Ford. It was a little south of where the car stopped. This means the body was beyond the point where the vehicle came to rest.
The evidence permits the inference the vehicle, traveling at great speed, catapulted through the air twice, once for 37 feet and once for 55 feet, before it came to rest in the creek. Whether the movement in the air was end over end or otherwise is left to conjecture. From the position of the bodies it may be inferred that Becker was first thrown from the vehicle, but through which door is pure guesswork. The driver may or may not have been thrown from the vehicle before the passenger. That, too, is guesswork.
The known facts in this case leave too many unknowns and imponderables to permit anyone to say with any degree of certainty who was the driver. This case furnishes a good illustration why "courts *355 look with disfavor upon attempts to reconstruct traffic accidents by means of expert testimony, owing to the impossibility of establishing with certainty the many factors that must be taken into consideration." Conway v. Hudspeth, 229 Ark. 755, 318 S.W.2d 137, 140. See also Moniz v. Bettencourt, 24 Cal. App. 2d 718, 76 P.2d 535.
As a general rule, a witness must confine his evidence to the facts. In certain cases, however, an observer may testify as to the results of his observations and give a shorthand statement in the form of an opinion as to what he saw. For example, he may observe the movement of an automobile and give an opinion as to its speed in terms of miles per hour. However, one who does not see a vehicle in motion is not permitted to give an opinion as to its speed. A witness who investigates but does not see a wreck may describe to the jury the signs, marks, and conditions he found at the scene, including damage to the vehicle involved. From these, however, he cannot give an opinion as to its speed. The jury is just as well qualified as the witness to determine what inferences the facts will permit or require. Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E.2d 828.
The qualified expert, the nonobserver, may give an opinion in answer to a proper hypothetical question in matters involving science, art, skill and the like. The plaintiff contends Sgt. Etherage placed himself in this expert category by having investigated more than 400 wrecks. There is no evidence that wrecks follow any set or fixed pattern. An automobile, like any other moving object, follows the laws of physics; but which door came open first during the movement would depend upon the amount and direction of the physical forces applied, and the place of their application. There was no evidence the witness ever investigated an accident when both doors were open and both occupants thrown out. In this case neither the nonobserver nor the jury could tell who was the driver. Tyndall v. Harvey C. Hines Co., supra; Everart v. Fischer, 75 Or. 316, 147 P. 189; Burwell v. Sneed, 104 N.C. 118, 10 S.E. 152.
The ruling of the trial court that Sgt. Etherage was not qualified to testify that Becker was thrown through the left door and, therefore, was the driver is in accordance with our decisions. The evidence at the trial was insufficient to raise a jury question. The judgment of nonsuit is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329487/ | 102 Ga. App. 367 (1960)
116 S.E.2d 500
BREWER, by Next Friend
v.
GITTINGS.
38404.
Court of Appeals of Georgia.
Decided September 12, 1960.
*369 E. J. Clower, for plaintiff in error.
Wright, Rogers, Magruder & Hoyt, Wade C. Hoyt, Jr., contra.
BELL, Judge.
1. Special ground 5 of the motion for new trial contends that the verdict in favor of the plaintiff's child in the sum of $10 is so grossly inadequate as to justify the inference of gross mistake, undue bias, and prejudice on the part of the jury.
Code § 105-2015 provides, "The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias." In this case the plaintiff's injuries were severe and undoubtedly painful. There is some indication of permanent impairment. If there is any liability to the plaintiff who has sustained a skull fracture, two fractured ribs, and a partial pneumothorax, or partially collapsed lung, plus scars and baldness around the scars and swelling of the broken ribs, the liability in all conscience must be for some amount greater than $10. The jury by its verdict has found that the defendant is legally liable to the plaintiff in tort, and since this has been established, the diminutive damages awarded justify the inference of gross mistake or undue bias within the meaning of Code § 105-2015. Thus, where the verdict establishes liability and the proof shows actual damages where the medical expenses, etc., amounted to $107, a verdict for one dollar was held grossly inadequate and contrary to the law and evidence. Travers v. Macon Ry. &c. Co., 19 Ga. App. 15 (90 S.E. 732). In that *370 case it was held that a new trial should have been granted. In a later case a verdict for $100 in the plaintiff's favor was held to be so small as to require the granting of a new trial. Anglin v. City of Columbus, 128 Ga. 469 (57 S.E. 780). The language used in the Anglin case by Mr. Justice Atkinson, at pp. 472-473, is quite appropriate to the case at hand: "The only other question, therefore, with which we are to deal is as to whether the amount fixed by the jury was so small and disproportionate to the pain and suffering endured from the injury as to justify the inference of gross mistake or undue bias. Under the evidence disclosed by the record, if the plaintiff was entitled to recover anything, she was entitled to recover damages commensurate with the injury sustained. One hundred dollars was the amount fixed by the jury, which we think is no compensation whatever for the pain and suffering already endured . . . It was insisted by counsel for the defendant in error that the verdict for this insignificant sum should be interpreted as a finding in favor of the city upon its contention that the city was not negligent, and that the pittance allowed by the jury was a matter of mere gratuity. We can not construe the verdict in that way. A verdict for the plaintiff could not have been lawfully had against the defendant upon any theory except that of the negligence of the defendant, described in the pleadings; and when the jury expressly found against the defendant, the verdict must be construed according to its recitals. The jury must be taken at its word, when by the effect of its verdict it finds that the city was negligent. . . We are constrained, therefore, to hold that in view of the evidence and the nature of the injury complained of and the small amount of the verdict, there was an abuse of discretion in not granting the plaintiff's motion for new trial. The evidence as to the defendant's negligence was of such character as to have authorized a finding in favor of either party. If the jury did not believe that the city was negligent, they should have returned a verdict in favor of the defendant; but if, on the other hand, they believed from the evidence that the city was negligent, and that its negligence resulted in the injury as set forth in the plaintiff's declaration, they should have found a verdict for the plaintiff for such an amount as would be fairly compensatory for the injury sustained."
*371 We think the same reasoning applies to this case, and that the jury, having found the defendant was liable to the plaintiff for his negligence, has rendered a grossly inadequate verdict, and because of this, the trial court should have granted the plaintiff's motion for a new trial. See also the following cases on inadequacy of the verdicts: Potter v. Swindle, 77 Ga. 419 (3 S.E. 94), and Moore v. Sears, Roebuck & Co., 48 Ga. App. 185 (172 S.E. 680).
Special ground 6 was abandoned and, therefore, is not considered.
2. Special ground 7 of the amended motion assigns error in that the court did not charge the following written request: "I charge you, gentlemen, that the courts of this state have held that a child of the tender age of seven cannot be guilty of negligence so as to bar himself from recovering damages for injuries sustained on account of the negligence of others." The record discloses that the father's testimony shows the child was born on December 8, and was thus four days short of being seven years and four months old on the day of his injury. Code § 105-204 defines due care in a child as such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation. In interpreting this section, the courts have held that children below the age of six years are not chargeable with negligence. Christian v. Smith, 78 Ga. App. 603 (51 S.E.2d 857); Red Top Cab Co. v. Cochran, 100 Ga. App. 707 (2) (112 S.E.2d 229). On the other hand, a child seven and a half years of age has been held to be capable of contributory negligence. "It was for the jury to determine whether this child who was only about seven and a half years of age at the time he received the injuries complained of, exercised due care . . . on the occasion and under the circumstances in question." Mayor &c. of Madison v. Thomas, 130 Ga. 153 (3) (60 S.E. 461). In Cohn v. Buhler, 30 Ga. App. 14 (116 S.E. 864), the court held that the jury should determine whether a child seven years of age at the time of the injury should be found to be negligent.
The case of Harris v. Combs was before the Court of Appeals twice, and in the first report the child was stated to be seven *372 years of age at the time of the injury. 96 Ga. App. 638 (101 S.E.2d 144); 98 Ga. App. 418 (105 S.E.2d 760). In the Harris case the court did state that no contributory negligence could be involved on the part of the child because of the very young age of the child, citing, among other cases, Cohn v. Buhler, supra. However, as we have noted, the Cohn case held that a child seven years of age could be found by the jury to be negligent. The Harris case also cited Braswell v. Smith, 27 Ga. App. 430 (110 S.E. 415). But it is to be observed that the Braswell case does not show the age of the child involved and, therefore, can not be authority for the proposition stated. The third authority cited in the Harris case is Ragan v. Goddard, 43 Ga. App. 599 (159 S.E. 743). But the Ragan case cannot be construed as supporting the enunciated principle for the reason that the child there involved was twelve years three and a half months old. We, therefore, must disagree with any contention that the Harris case holds that no contributory negligence can be attributed to a child seven years of age. Accordingly, we hold that where a child is seven years of age, a jury issue is presented as to whether or not the child can be guilty of negligence or contributory negligence. Consequently, special ground 7 of the amended motion for the new trial was properly overruled by the trial court.
3. Special ground 8 of the amended motion urges that it was error for the court to charge, "The degree of care and diligence required of plaintiff is ordinary care and diligence. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do," and, "Now, as I charged you, the defendant is required to exercise ordinary diligence, and all that is required of the plaintiff is ordinary diligence, or due care." These instructions, it is contended, placed upon the plaintiff the burden to show that he used the ordinary care and prudence of a man, and to support his contention that this is error the plaintiff cites the case of Western & Atlantic R. Co. v. Rogers, 104 Ga. 224 (30 S.E. 804), wherein the trial judge instructed the jury that ordinary diligence is that care which every *373 prudent man takes of his own property of a similar nature, and the absence of such diligence is deemed ordinary negligence. The Supreme Court there held that by using this language, the trial judge in effect instructed the jury that if a child had not the capacity to exercise the care of a prudent man, the young one could not be chargeable with any negligence at all. The charge of the Western & Atlantic Railroad case is thus distinguishable from the instruction here. In the present case, immediately after defining negligence in a proper manner and stating that the plaintiff and the defendant were both required to exercise ordinary diligence, the court immediately went on to say, "Due care in a child of tender years is such care as his capacity, mental and physical, fits it for exercising in the actual circumstances in the occasion and situation under investigation," which is the language of Code § 105-204. Construing this portion of the charge as a whole, we feel that it was not erroneous and could not have misled the jury. Therefore, special ground 8 was properly overruled.
4. Special ground 9 of the amended motion urges that the court erred in charging that there is no presumption of law that the child did or did not exercise due care, or that the child did or did not have sufficient capacity at the time of the injury to know the danger or to observe due care for his own protection. We do not accept either of the cases cited in support of this disputation as sustaining the contention that this charge is erroneous. These cases cited are Harris v. Combs, supra, and Red Top Cab Company v. Cochran, supra. The only holding at all relevant in either of the cited cases is that in the Red Top Cab Company case to the effect that a child six years of age is too young to be capable of contributory negligence.
As a general rule in the United States, children under fourteen years of age are presumed incapable of contributory negligence. 65 C. J. S. 980, Negligence, § 218. The cases, however, are lacking in uniformity with respect to the question of whether there are presumptions that infants have the capacity to exercise the care required to avoid being contributorily at fault. Most jurisdictions, following the criminal law rules, hold that children under seven years of age are conclusively presumed to be in capable *374 of contributory negligence. Ibid, p. 980-1. This encyclopedic work goes on to cite the general rule as being that there is a rebuttable presumption of lack of capacity to exercise the care necessary to avoid being held contributorily at fault in the case of children between the ages of seven to twelve or fourteen years, but that above these ages the presumption changes, and there is generally held to be a presumption of capacity to exercise the appropriate degree of care where the child is above the age of twelve or fourteen years. Ibid at 981. By citing two Georgia cases this treatise leaves the incorrect inference that the Georgia rule agrees with the general law, i.e., that there is a rebuttable presumption of lack of capacity to exercise the care necessary to avoid being held contributorily at fault in children between the ages of seven to twelve or fourteen years of age. But an examination of the Georgia cases refutes this inference. The two cases cited in Corpus Juris Secundum to support its view are Rogers v. McKinley, 48 Ga. App. 262 (172 S.E. 662) and Davidson v. Horne, 86 Ga. App. 220 (71 S.E.2d 464). In the Rogers case the decision was based on an erroneous instruction on the issue of comparative negligence. The court's instruction in reference to the point at hand simply followed very closely the language of Code § 105-204, defining due care in a child of tender years. Furthermore, in the Rogers case the court, in passing on this charge, stated that a child under fourteen is not presumptively charged with negligence, and that the question of whether or not a child is capable of being negligent "except in plain and unmistakable cases is a question for determination by the jury." The incorrectness of the inference is made even clearer by the Davidson case, where the court, with respect to a child alleged to be only nine years of age, stated, "there is no presumption that he would apprehend danger and exercise ordinary care for his own safety."
It seems clear from the Georgia cases that the question of capacity or lack of capacity to be contributorily negligent in the case of children between the ages of seven and fourteen is a subjective one which necessarily depends in each situation upon the particular child's mental and physical capacity. Thus, there is no presumption that the child did or did not exercise due care *375 or does or does not have sufficient capacity to recognize danger or to observe due care. See Simmons v. Atlanta & West Point R. Co., 46 Ga. App. 93 (d) (166 S.E. 666); Southern Ry. v. Chatman, 124 Ga. 1026, 1037 (53 S.E. 692, 6 L. R. A. (NS) 283, 4 Ann. Cas. 675). Since the question of capacity is an individual one in each of the cases involving children between seven and fourteen years of age, the jury must first find that the particular child had the capacity required and then must decide whether or not the child exercised it. As it was stated in Central R. & Bkg. Co. v. Rylee, 87 Ga. 491, 495 (13 S.E. 584, 13 L. R. A. 634), "The better rule would be for the jury to deal with each case upon its own facts, unhampered by presumptions of law either for or against the competency of the child."
Inasmuch as we conclude that there is no presumption of law that the child here involved did or did not exercise due care or did or did not have sufficient capacity to know the danger or to observe due care, we do not find any error in this portion of the charge objected to. These are issues of fact for the jury to determine.
5. Special ground 10 of the amended motion relates to the question of whether or not a child seven years of age, actually in this case seven years and almost four months of age, can be guilty of contributory negligence, and in view of our holding that a jury question is thus presented, special ground 10 is without merit.
6. Special ground 11 asserts that the court erred in giving the following charge to the jury: "I charge you the defendant contends as one of his defenses that the plaintiff's child's injuries occurred as a result of an accident, as far as the defendant is concerned. The word `accident' has two or more separate and distinct meanings. As used in connection with this case, it does not have the meaning which the word has to the average layman. In Georgia law, it generally means in connection with personal injury cases such as this, an injury which occurred without being caused by either the negligence of the plaintiff or the negligence of the defendant. The idea of accident excludes responsibility for the cause of the injury.
"If you find from a preponderance of the evidence in this case *376 that the plaintiff's child's injuries, if any, were caused by accident, as I have defined the word, insofar as the defendant is concerned, that is, it occurred without any lack of ordinary care and diligence on the part of the defendant, then the plaintiff could not recover from the defendant in this case." The term, "accident," as thus defined by the court in its instruction is the term given in the law of torts generally to an unintended occurrence which could not have been prevented by the exercise of reasonable care. While the early law was contrary, under the present-day view there is generally no liability for an unavoidable accident, which is defined as one which under all the circumstances could not have been prevented by the exercise of reasonable care. Prosser, Hornbook on Torts, 2d Ed. § 29. Under the pleadings and the evidence, the issue of accident was, we feel, fairly raised, and the instruction on the point was properly presented.
7. Special ground 12 declares that the court erred in giving the following charge to the jury: "Now, as I charged you, the defendant is required to exercise ordinary diligence, and all that is required of plaintiff is ordinary diligence or due care." This, it is said, places upon the child the duty of exercising the care which the law does not thrust upon him, and again it is argued that the plaintiff could not, as a matter of law, be guilty of contributory negligence. Since the trial court, in its charge, had given the jury instructions as to what constitutes due care in a child in the language of Code § 105-204, this charge was not erroneous. Special ground 12 of the amended motion has no merit.
By reason of the gross inadequacy of the verdict as astutely attacked by special ground 5 of the amended motion for a new trial, the judgment of the trial court overruling the plaintiff's motion for new trial is hereby reversed.
Judgment reversed. Felton, C. J., and Nichols, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329489/ | 216 Ga. 368 (1960)
116 S.E.2d 738
CITY OF ATLANTA
v.
GOWER et al.
20988.
Supreme Court of Georgia.
Argued September 15, 1960.
Decided October 11, 1960.
*369 J. C. Savage, Edwin L. Sterne, Robert F. Lyle, for plaintiff in error.
Wm. T. Brooks, contra.
Arnall, Golden & Gregory, for parties at interest not parties to record.
HEAD, Presiding Justice.
By an act approved August 17, 1920 (Ga. L. 1920, p. 16), § 88 of the General Tax Act of 1918 (Ga. L. 1918, pp. 43, 66) was amended so as to provide that *370 "no municipal corporation or county authorities shall levy or collect any additional tax on the professions, businesses or occupations enumerated" in § 88. The amendment of 1920 was included in the General Tax Act of 1927, paragraph 3, (Ga. L. 1927, pp. 56, 58), and in the General Tax Act of 1935, paragraph 3, (Ga. L. 1935, pp. 11, 13), relating to professions. By an act approved February 19, 1951 (Ga. L. 1951, pp. 157-175), many provisions of the General Tax Act of 1935 were repealed in their entirety, including paragraph 3 of that act, imposing a tax upon professions. By an act approved February 25, 1953 (Ga. L. 1953, Jan.-Feb. Sess., pp. 207-208), the General Assembly provided that no municipal corporation or county authority shall levy or collect any license, occupation, or professional tax on professions classified and formerly taxed by the General Tax Act, including the practice of law, except in the place where the practitioner shall maintain his principal office. It was further provided that such levy "shall not exceed the levy imposed under the laws of the State of Georgia as the same existed in 1950." Under paragraph 3 of the General Tax Act of 1935, the State tax imposed upon attorneys and other professions was $15. The act of 1953 is a general law having State-wide application, and in the absence of some other constitutional general law, the City of Atlanta would be prohibited by the act of 1953 from levying a tax on the professions named in the General Tax Ordinance of the city in a sum greater than $15.
Municipal corporations can levy no tax, general or special, upon the inhabitants of the municipality, or upon property therein, unless the power to do so be plainly and unmistakably granted by the State, and the burden is upon every political subdivision of the State which demands taxes from the people to show authority to exercise it in the manner in which it has been imposed by a valid law of this State. Lane v. Mayor &c. of Unadilla, 154 Ga. 577 (114 S.E. 636); O'Neal v. Whitley, 177 Ga. 491, 492 (170 S.E. 376); Pullman Co. v. Suttles, 187 Ga. 217 (199 S.E. 821); Lewis & Holmes Motor Freight Corp. v. City of Atlanta, 195 Ga. 810 (25 S.E.2d 699); Publix-Lucas Theaters v. City of Brunswick, 206 Ga. 206, 210 (56 S.E.2d 254).
In the present case, the City of Atlanta relies on an act of *371 the General Assembly approved March 25, 1959 (Ga. L. 1959, pp. 3251-3252), as amended by an act approved March 17, 1960 (Ga. L. 1960, pp. 2847-2848), as legislative authority for the amendment to the General Tax Ordinance of the city. The 1959 act is as follows:
"Section 1. This Act shall apply to all cities in the state having a population of more than 300,000 according to the last or any future Federal Decennial Census.
"Section 2. The mayor and board of aldermen of such city shall have full power and authority to require any person, firm, corporation or company engaged in, prosecuting or carrying on, or who may engage in, prosecute or carry on any trade, business, calling, avocation or profession, to register their names and businesses, calling, avocation or profession annually, and to require such person, company or association to pay for such registration and for license to engage in, prosecute or carry on such business, calling or profession aforesaid, such fee, charge or tax, as said mayor and board of aldermen may deem expedient for the safety, benefit, convenience and advantage of said city. Said tax, registration fee or license herein provided for shall be imposed in the discretion of the mayor and board of aldermen.
"Section 3. All laws and parts of laws in conflict herewith are hereby repealed."
Under the rulings of this court in Stewart v. Anderson, 140 Ga. 31 (78 S.E. 457), the legislature would be authorized to make a classification of cities on the basis of population, and pass a general law with reference to such classification, provided the basis of classification has some reasonable relation to the subject matter of the law, and furnishes a legitimate ground for differentiation, and provided that the act is so framed as to let in all cities coming within the population classification, and let out all cities falling below the classification. Murphy v. West, 205 Ga. 116 (52 S.E.2d 600); Barge v. Camp, 209 Ga. 38 (70 S.E.2d 360); Irwin County Electric Membership Corp. v. Haddock, 214 Ga. 682 (107 S.E.2d 195). In the three cases last cited, it was not shown that any county was excluded from coming within the provisions of the act by any limitation or restriction contained in the act. Where a classification is made on the *372 basis of population as to counties or cities, and the act is so limited and restricted that all counties or cities which may come within the population class can not come within the provisions of the act, it is not a general law. Crovatt v. Mason, 101 Ga. 246, 251 (28 S.E. 891); Sasser v. Martin, 101 Ga. 447, 456 (29 S.E. 278); Cooper v. Rollins, 152 Ga. 588, 592 (110 S.E. 726, 20 A. L. R. 1105); Mayor &c. of Danville v. Wilkinson County, 166 Ga. 460 (143 S.E. 769); Gibson v. Hood, 185 Ga. 426, 430 (195 S.E. 444); Jackson v. Baker, 207 Ga. 446 (62 S.E.2d 162); Tift v. Bush, 209 Ga. 769 (75 S.E.2d 805).
All cities having the required population under any future census could not come within the terms and provisions of the act of 1959 herein quoted. This court is bound to take judicial notice of the laws and resolutions enacted by the General Assembly of this State. Code § 38-112. Of the six largest cities in this State having a population of less than 300,000, only two are governed by a mayor and board of aldermen, one is governed by a mayor and city council, and three have a city-commission form of government. The limitation of the 1959 act to those cities governed by a mayor and board of aldermen is such a restriction on its scope that the act is not a general law, since all cities which in the future might come within the population classification can not come within the provisions of the act.
By an act approved March 17, 1960 (Ga. L. 1960, pp. 2847-2848), the General Assembly purported to amend the 1959 act, by adding on the words, "the mayor and council or other governing authority," to follow the words, "mayor and board of aldermen." Wherever they appeared in the act. This amendment could not add anything of substance to the invalid and unconstitutional act of 1959. "The time with reference to which the constitutionality of an act of the General Assembly is to be determined is the date of its passage, and if it is unconstitutional then, it is forever void." Jones v. McCaskill, 112 Ga. 453, 456 (37 S.E. 724); Christian v. Moreland, 203 Ga. 20 (45 S.E.2d 201); Grayson-Robinson Stores v. Oneida, Ltd., 209 Ga. 613, 617 (75 S.E.2d 161).
The act of 1959 purports to authorize unlimited taxation of all professions. The statement of Chief Justice Marshall that *373 "An unlimited power to tax involves, necessarily, a power to destroy" (McCulloch v. Maryland, 4 Wheat. 316, 327), is applicable to all unlimited powers of taxation. Such unlimited power of taxation as contained in the 1959 act has no reasonable relation to a purported classification of cities. Why should cities of any number of inhabitants less than 300,000 be permitted to tax professions on an annual basis in the sum of $15 only, and cities of more than 300,000 have the power to impose unlimited taxes on such professions? Such classification is arbitrary, unreasonable, and can have no logical basis or support with reference to the population classification purported to be made.
The 1959 act also purports to convey to such cities the power to require all persons in the class of professions taxed by the act "to pay for such registration and for license to engage in, etc." Purported authority to cities of more than 300,000 to require an additional license of professions licensed and regulated by the State can have no reasonable or substantial relation to the classification. The 1959 act wholly fails to establish or show any basis for distinction or differentiation. Geele v. State, 202 Ga. 381 (43 S.E.2d 254, 172 A. L. R. 196).
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329529/ | 107 S.E.2d 70 (1959)
249 N.C. 632
STATE
v.
John Buddy GOODE, Jr.
No. 2.
Supreme Court of North Carolina.
February 25, 1959.
Hamrick & Hamrick, Rutherfordton, for defendant, appellant.
Malcolm B. Seawell, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.
PARKER, Justice.
The defendant offered evidence tending to show that the defendant may have killed Lon Abrams in self-defense, which evidence was sufficient to carry the case to the jury, ultra any uncommunicated threats made a brief time before the homicide by Lon Abrams against the defendant.
Shortly before the fatal shooting Lon Abrams, armed with a shotgun, came to the house of J. T. Woods. The defendant assigns as error that the trial court, on motion of the solicitor for the State, excluded the testimony of his witness Ernestine Woods to the effect that there at J. T. Woods' house she heard Lon Abrams say "I'm going to kill that yellow man," and also heard him say to Clem Goode tell the defendant "to stick his head out of the door, and he would blow it off." These threats were not communicated to the defendant prior to the homicide.
Under the facts of the instant case the exclusion of these uncommunicated threats was prejudicial error and entitles the defendant to a new trial, according to our decisions in State v. Baldwin, 155 N.C. 494, 71 S.E. 212; State v. Dickey, 206 N.C. 417, 174 S.E. 316; State v. Minton, 228 N.C. 15, 44 S.E.2d 346. The admission of this evidence in the light of the facts here seems to us logical and humane.
The defendant testified that he shot Aden Proctor, who had shot him with a shotgun, that Proctor fell, that Lon Abrams ran to Proctor and "went over for the shotgun," and he shot Lon Abrams. Abrams died from his wound. The trial court charged the jury that as an essential element of self-defense the defendant must satisfy the jury from the evidence that an unlawful and felonious assault was being made upon him at the time and that he believed and had reasonable grounds to believe that he was about to suffer death or great bodily harm. The defendant assigns this part of the charge as error.
The exception is well taken and must be sustained. The defendant's testimony does not show that Lon Abrams was making an unlawful and felonious assault upon him at the time. At the most it tends to show that he had reasonable grounds to believe that Lon Abrams was *72 about to commit a felonious assault upon him with a shotgun, and that it appeared to him to be necessary to kill Lon Abrams to save himself from death or great bodily harm. There is a marked distinction between an actual necessity for killing and a reasonable apprehension of losing life or receiving great bodily harm. The plea of self-defense rests upon necessity, real or apparent. State v. Rawley, 237 N.C. 233, 74 S.E.2d 620; State v. Robinson, 213 N.C. 273, 195 S.E. 824; State v. Marshall, 208 N.C. 127, 179 S.E. 427. The trial court should have charged that if the defendant satisfied the jury from the evidence that he killed Lon Abrams in defense of himself, when not actually necessary to prevent death or great bodily harm, because he believed that Lon Abrams was about to assault him with a shotgun, and that it was necessary for him to kill Lon Abrams to prevent Lon Abrams from killing him or inflicting upon him great bodily harm, and had reasonable grounds for that belief, that would be excusable homicide: the reasonableness of this belief or apprehension must be judged from the facts and circumstances of the case as they appeared to the defendant at the time of the killing, but the jury and not the party charged is to determine the reasonableness of the belief or apprehension upon which the defendant acted. State v. Ellerbe, 223 N.C. 770, 28 S.E.2d 519; State v. Robinson, supra; State v. Pollard, 168 N.C. 116, 83 S.E. 167, L.R.A. 1915B, 529; State v. Johnson, 166 N.C. 392, 81 S.E. 941; State v. Barrett, 132 N.C. 1005, 43 S.E. 832; State v. Nash, 88 N.C. 618.
The Attorney General with commendable candor concedes error in the trial court's exclusion of the testimony of Ernestine Woods as to the above mentioned uncommunicated threats, and also concedes error in the charge on self-defense as set forth above.
The defendant is entitled to a
New trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329573/ | 116 S.E.2d 923 (1960)
253 N.C. 400
Walton S. DENNIS, Jr., on behalf of himself and all other taxpayers in the City of Raleigh,
v.
CITY OF RALEIGH, a Municipal Corporation.
No. 465.
Supreme Court of North Carolina.
November 23, 1960.
*924 Teague, Johnson & Patterson, Raleigh, for plaintiff, appellant.
Paul F. Smith, Raleigh, for defendant, appellee.
BOBBITT, Justice.
A municipal corporation has "the powers prescribed by statute, and those necessarily implied by law, and no other." G.S. § 160-1. Defendant relies solely on the statutory authority granted by Section 22(40) of Chapter 1184, Session Laws of 1949, "The Charter of the City of Raleigh," which provides:
*925 "Sec. 22. Expressed Powers Enumerated. In addition to the powers now or hereafter granted to municipalities under the general laws of the State of North Carolina, the City of Raleigh shall have the following expressed powers hereby granted to it:
* * * * * *
"(40) To appropriate annually, in the discretion of the city council, not exceeding twenty-five hundred dollars ($2500.00) to any association in the city organized for the purpose of advertising the city or promoting the public interest and general welfare of the city; provided, however, that any such appropriation, which is hereby declared to be for a public purpose, shall be from funds of the city derived from sources other than ad valorem taxation."
Constitutional limitations upon the power of the General Assembly include the following: "No * * * municipal corporation shall contract any debt, pledge its faith or loan its credit, nor shall any tax be levied or collected by any officers of the same except for the necessary expenses thereof, unless approved by a majority of those who shall vote thereon in any election held for such purpose." N. C. Constitution, Art. VII, Sec. 7.
In Ketchie v. Hedrick, 186 N.C. 392, 119 S.E. 767, 31 A.L.R. 491, a tax to provide a fund to be expended "under the direction and control of the directors of the Chamber of Commerce, High Point, N. C.," for purposes similar to those here considered, was held invalid and uncollectible on the ground such expenditure was not for "a necessary governmental expense." High Point had levied the tax under the purported authority of a private legislative act. Whether a tax should be levied for such purpose was not submitted to the electors.
Thereafter, the General Assembly enacted Ch. 33, Public Laws of 1925, the general statute now codified as G.S. Ch. 158, applicable to a municipal corporation if and when approved by a majority of the qualified voters thereof. G.S. § 158-2. When so approved, it authorizes the governing body to appropriate funds, limited as to amount, derived from general taxes for purposes similar to those here concerned. The 1925 Act was considered in Horner v. Chamber of Commerce, 231 N.C. 440, 57 S.E.2d 789, where a judgment sustaining a demurrer to the complaint was reversed, and again in Horner v. Chamber of Commerce, 235 N.C. 77, 68 S.E.2d 660, 663, where a judgment for plaintiff, based on findings of fact and invalidating the challenged appropriation, was affirmed. The ground of decision was that, in contravention, of the 1925 Act, "the Burlington City Council, made an absolute gift of the tax moneys to the Chamber of Commerce without specifying how they were to be spent, and without reserving the right to direct or control their use," and that "(t)he Chamber of Commerce indistinguishably commingled the tax moneys and all its other revenues, and indiscriminately used the resultant common fund to pay rents, salaries, and other expenses incurred by it in carrying out its corporate functions." 235 N.C. 81, 68 S.E.2d 660.
What constitutes a necessary expense within the terms of Art. VII, Sec. 7, is for determination by this Court. Wilson v. City of High Point, 238 N.C. 14, 76 S.E. 2d 546, and cases cited. An expenditure for the purposes set forth in the resolution of the Raleigh City Council is not a necessary expense within the meaning of this constitutional provision. Ketchie v. Hedrick, supra. Hence, no tax may be levied or collected for such purpose unless approved by a majority of the qualified voters.
The resolution of the Raleigh City Council, in accordance with the phraseology of the charter provision, purports to make the appropriation from funds derived from sources other than ad valorem taxation. But the provisions of Art. VII, Sec. 7, are not limited to ad valorem taxation. They apply with equal vigor to all taxes a *926 municipal corporation may levy or collect. Hence, the appropriation, insofar as it purports to authorize the use of tax funds other than those derived from ad valorem taxes, is void.
There remains for consideration whether the City of Raleigh, by virtue of said charter provision, has authority to make such appropriation from surplus funds not derived from taxation of any kind.
"A state legislature can neither compel nor authorize a municipal corporation to expend any of its funds for a private purpose, and consequently, since practically every undertaking of a municipality does or may require the expenditure of money, a municipal corporation cannot, even with express legislative sanction, embark in any private enterprise, or assume any function which is not in a legal sense public. If there is any restriction implied and inherent in the spirit of American Constitutions, it is that the government and its subdivisions shall confine themselves to the business of government, for which they were created, but if a specific provision prohibiting the expenditure of public funds for private purposes is required, it is found in the clause which forbids the taking of property for other than public uses; for since the funds of a municipality are necessarily directly or indirectly raised by taxation, the expenditure of money by a municipality for private purposes does or may necessarily result in the taking of the property of individuals under the guise of taxation for other than public uses." 38 Am.Jur., Municipal Corporations § 395; Brown v. Com'rs of Richmond County, 223 N.C. 744, 28 S.E.2d 104.
A municipal corporation, when authorized by statute, has power to appropriate for a public purpose available surplus funds not derived from taxes or a pledge of its credit. Brumley v. Baxter, 225 N.C. 691, 699, 36 S.E.2d 281, 162 A.L.R. 930, and cases cited; City of Greensboro v. Smith, 241 N.C. 363, 367, 85 S.E.2d 292.
A legislative determination that a particular expenditure is for a public purpose, while entitled to great weight, is not conclusive. Final decision is for judicial determination. Briggs v. City of Raleigh, 195 N.C. 223, 230, 141 S.E. 597; Turner v. City of Reidsville, 224 N.C. 42, 29 S.E. 2d 211.
In Greensboro-High Point Airport Authority v. Johnson, 226 N.C. 1, 8, 36 S.E. 2d 803, 809, Seawell, J., states: "`Public Purpose' as we conceive the term to imply, when used in connection with the expenditure of municipal funds from the public treasury, refers to such public purpose within the frame of governmental and proprietary power given to the particular municipality, to be exercised for the benefit, welfare and protection of its inhabitants and others coming within the municipal care." See opinion of Stacy, C. J., in Briggs v. City of Raleigh, supra, for a full discussion of the distinction between a public purpose and the promotion of private business or property interests.
"Where the statutory power exists, courts have permitted municipalities to advertise their advantages to attract trade and industry to the community." (Our italics.) Rhyne on Municipal Law, § 15-6; 37 Am. Jur., Municipal Corporations § 127. Decisions based on lack of express legislative authority are not relevant.
In Sacramento Chamber of Commerce v. Stephens, 212 Cal. 607, 299 P. 728, 730, which involved an appropriation made pursuant to a charter provision, the opinion of Waste, C. J., states: "Furthermore, we are of the view that, by common consent, it is now generally held to be well within a public purpose for any given locality to expend public funds, within due limitations, for advertising and otherwise calling attention to its natural advantages, its resources, its enterprises, and its adaptability for industrial sites, with the object of increasing its trade and commerce and of encouraging people to settle in that particular community."
*927 The appropriation made by the Raleigh City Council to the Raleigh Chamber of Commerce is for use exclusively for "advertising the advantages of the City of Raleigh in an effort to secure the location of new industry within the City." No part of the funds so appropriated is to be expended by the Raleigh Chamber of Commerce unless and until specific advertising and the cost thereof is first submitted to and approved by the Raleigh City Council. Except to the extent expended for approved specific advertising, the Raleigh Chamber of Commerce is to account to the City of Raleigh for said $500 on or before June 30, 1961. The factual situation here is quite different from that considered in Horner v. Chamber of Commerce, supra.
The appropriation authorized by the charter provision is for advertising to promote the public interest and general welfare of the City. The resolution of the Raleigh City Council contains no suggestion that the fund will be expended for any other purpose. There is no allegation that the contemplated advertising is for the purpose of promoting private business or property interests. Absent an attack on such ground, it must be assumed that no expenditure will be approved by the Raleigh City Council unless it be within the authority granted by the charter provision.
The court below held the appropriation was for a public purpose. We agree. However, it was not for a necessary expense within the meaning of Art. VII, Sec. 7, and payment may not be lawfully made from funds derived from taxation of any kind. Hence, it was error to deny in its entirety plaintiff's application for injunctive relief and to dismiss the action.
Accordingly, the judgment of the court below is vacated and the cause remanded for the entry of a judgment enjoining payment from funds derived from taxation of any kind but denying plaintiff's application for injunctive relief insofar as it relates to payment from available surplus funds not derived from taxes of any kind.
Error and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329569/ | 116 S.E.2d 355 (1960)
253 N.C. 171
W. T. WIGGINS
v.
George TRIPP, Major Tripp and Craven Lumber Company, a corporation.
No. 90.
Supreme Court of North Carolina.
October 12, 1960.
*358 R. E. Whitehurst, New Bern, LeRoy C. Scott, Washington, David S. Henderson, New Bern, for plaintiff appellee.
Cecil May, H. P. Whitehurst, New Bern, Wilkinson & Ward, Washington, for defendant appellant.
WINBORNE, Chief Justice.
At the threshold of their appeal defendants are confronted with a motion to dismiss the appeal for that there is no case on appealand the record contains no request for the judge to settle a case on appeal.
The requirements are set forth in G.S. § 1-282 and G.S. § 1-283. The statute provides that the appellant shall cause to be prepared a concise statement of case on appeal and prescribes what it shall embody, and that a copy shall be served on respondent, appellee, within time given by statute or extended by order of court. It further provides that within time given in like manner respondent shall return the copy with his approval or with specific amendments endorsed or attached. If the case on appeal be returned by the respondent, with exceptions as prescribed, the appellant shall immediately request the judge to fix a time and place for settling the case before him. If, however, the appellant delays longer than fifteen days, unless time be enlarged by agreement after respondent serves his counter-case or exceptions, to make such request, or delays for such period to mail the case and countercase or exceptions to the judge, the exceptions filed by the respondent shall be allowed, or the countercase served by him shall constitute the case on appeal.
However it is the duty of the appellant to have the statement of case on appeal as thus modified, redrafted and submitted to the judge for his signature. Gaither v. Carpenter, 143 N.C. 240, 55 S.E. 625. Western North Carolina Conference v. Talley, 229 N.C. 1, at page 6, 47 S.E.2d 467, at page 470: "Moreover, when he fails to do this, there is no `Case on Appeal'. Mitchell v. Tedder, 107 N.C. 358, 12 S.E. 193; Waller v. Dudley [193 N.C. 749, 138 S.E. 128]."
Let it be noted that while this Court in response to motion suggesting diminution of the record, entered an order (1) granting time in which to serve statement of case on appeal and time in which to serve exceptions or countercase, and (2) providing that if case on appeal should not be settled by agreement, same should be settled by Judge *359 Bundy within given time, the order does not relieve appellant of duty of requesting the Judge to settle the case, and of otherwise performing the duties imposed upon appellant by the statute. G.S. § 1-282 and G.S. § 1-283.
And where there is no proper statement of case on appeal, the Supreme Court can determine only whether there is error on the face of the record proper. Western North Carolina Conference v. Tally, supra.
Applying these provisions of the statutes interpreted by decisions of this Court, error is not made to appear upon the face of the record. Therefore the motion to dismiss is well taken, and should be granted.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329562/ | 216 Ga. 426 (1960)
116 S.E.2d 592
MORRIS et al.
v.
CUMMINGS et al.
21025.
Supreme Court of Georgia.
Argued September 13, 1960.
Decided October 6, 1960.
Rehearing Denied October 25, 1960.
Jay M. Sawilowsky, for plaintiffs in error.
Sanders, Thurmond & Hester, contra.
HEAD, Presiding Justice.
Robert L. Morris and Mary J. L. Morris brought an action against Albert S. Cummings, Mrs. Virginia Cummings, Mrs. Mary McNeely, Karl R. Smith, Jr., Olive P. Greene, and John J. Greene, seeking damages and injunctive relief, the petition alleging that the defendants had created a continuing nuisance by artificially increasing the natural flow of surface water from their properties onto the property *427 of the petitioners. The trial judge denied the interlocutory injunction, and the exception is to this judgment.
From the pleadings and the evidence on the hearing it appears that Mrs. Henry Lonergan, the mother of the petitioner Mrs. Morris, was the common grantor of all of the parties. The petitioners own property on the west side of Camilla Avenue, and the defendants own property between the east side of Camilla Avenue and Lonergan Drive. All of the properties of the defendants are higher than the property of the petitioners, but the property of some of the defendants is in a depression; they have no natural drainage, and have a serious problem with standing surface water in wet weather. In February, 1960, the defendants had a drainage ditch dug, which traverses the property of the defendant John J. Greene, and drains the properties of the other defendants, emptying water onto Camilla Ave., whence it flows across Camilla Avenue (and has eroded this street until it is impassable), and then flows onto the property of the petitioners.
It is the contention of the defendants that, at the time they (except John J. Greene) purchased their properties, there was in existence a drainage ditch which traversed the property of Smith, Cummings, and Olive P. Greene, and two lots then belonging to Mrs. Lonergan, the water going through a culvert under Camilla Avenue and onto property then belonging to Mrs. Lonergan; that this ditch was dug by Tom Ayers, the predecessor in title of all of the defendants except John J. Greene, at considerable expense to Mr. Ayers, with the knowledge and consent of Mrs. Lonergan and with the knowledge of the petitioners; that this drainage ditch remained open until about September 1, 1959, when it was filled with dirt, rubbish, and other items by the petitioners or persons acting in concert with them; and that, if the petitioners have suffered any damage because of the flow of surface water, this damage has been caused because of their interference with the drainage ditch dug by Mr. Ayers.
There is a great deal of conflict in the evidence in regard to the Ayers ditch. Mr. Ayers testified that he dug the ditch on Mrs. Lonergan's property with her permission and at his own *428 expense. Mrs. Lonergan testified that he dug it without her permission, and that she filled it back up within three weeks because it was flooding her daughter's property. There was evidence that the petitioners assisted in filling the Ayers ditch. W. E. Pollatty, who now owns the property formerly owned by Mrs. Lonergan on which the Ayers ditch was located, testified that he bought the property in September, 1959, and had a small portion of the ditch filled after that time. The defendants, Albert S. Cummings and Virginia Cummings, testified that the Ayers ditch was open when they bought their property in December, 1958.
The question of whether or not the successors in title of Mr. Ayers could assert the right to open the Ayers ditch on property now owned by Mr. Pollatty, or recover damages for the wrongful closing of the ditch, under the principles stated in Brantley v. Perry, 120 Ga. 760 (48 S.E. 332) is not made by the present case. The defendants have not opened the Ayers ditch, but have dug a new ditch on property owned by another person, more than one hundred feet from the Ayers ditch. The evidence in regard to an old agricultural ditch was immaterial, since no witness could remember when this ditch, now grown up into a hedgerow, had ever drained any water, and the new ditch is not in the same place as the old agricultural ditch.
The evidence is without conflict that the drainage ditch cut by the defendants discharges large quantities of water on Camilla Ave., and that the water then flows onto the petitioners' property, making it swampy and boggy, and eroding their premises. "As to surface water, one land proprietor has no right to concentrate and collect it, and thus cause it to be discharged upon the land of a lower proprietor in greater quantities at a particular locality, or in a manner different from that in which the water would be received by the lower estate if it simply ran down upon it from the upper by the law of gravitation." Cox v. Martin, 207 Ga. 442 (62 S.E.2d 164); Goldsmith v. Elsas, May & Co., 53 Ga. 186; Farkas v. Towns, 103 Ga. 150 (29 S.E. 700, 68 Am. St. Rep. 88); Hendrix v. McEachern, 164 Ga. 457, 459 (139 S.E. 9); Rinzler v. Folsom, 209 Ga. 549, 552 (74 S.E.2d 661); Rinzler v. Akin, 211 Ga. 530 (87 S.E.2d 64).
It is, of course, well established that the grant or denial of a *429 temporary injunction rests in the sound discretion of the trial judge, and where the evidence is conflicting, his decision will not be reversed unless it is apparent that he has abused his discretion. This conflict in the evidence, however, must be on material issues in the case. Jones v. Lanier Development Co., 188 Ga. 141 (2 S.E.2d 923). In the present case, the evidence demands a finding that the defendants cut a ditch draining their properties, which caused the surface waters from their properties to flow in an unnatural manner on the property of the petitioners. The conflicting evidence in regard to the Ayers ditch, taken in the most favorable view for the defendants, presents no defense to their wrongful act.
Since the evidence demanded a finding for the petitioners, the trial judge abused his discretion in refusing the interlocutory injunction.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329589/ | 99 Ga. App. 49 (1959)
107 S.E.2d 289
MILLEDGEVILLE STATE HOSPITAL
v.
CLODFELTER.
37525.
Court of Appeals of Georgia.
Decided January 21, 1959.
Rehearing Denied February 3, 1959.
*50 Eugene Cook, Attorney-General, John L. York, Assistant Attorney-General, for plaintiff in error.
Emory L. Rowland, contra.
TOWNSEND, Judge.
1. In New Amsterdam Cas. Co. v. McFarely, 191 Ga. 334 (12 S.E.2d 355) the Supreme Court held: "This court pointed out [in Aetna Life Ins. Co. v. Davis, 172 Ga. 258, 157 S.E. 449] that the Industrial Board was a mere *51 creature of the statute, brought into being by the legislature as an administrative body. It therefore has no inherent powers, and consequently has no lawful right to act except as directed by law. . . . To make an award either allowing or disallowing compensation, aside from medical aid as provided in section 114-501, the Industrial Board must under the law determine the preliminary questions whether or not there was an accidental injury resulting in disability for more than seven days, and whether or not it arose out of and in the course of employment. If these preliminary questions are decided in the affirmative, then the employee is entitled to compensation in some amount. On the other hand, a negative decision on any one of these facts requires an award denying compensation. The only award that the Industrial Board has the power under the law to make is either to deny or to grant compensation." (Emphasis added). It is perfectly true that when a hearing is requested and notice given "the person so notified may object to the jurisdiction of the industrial commission on any ground that will show an absence of authority of the commission to inquire into the matter." Ballenger v. Rock Run Iron Co., 166 Ga. 490 (3) (143 S.E. 595). It is true that where there is a motion to dismiss a claim on account of some matter appearing upon the face of the proceedings, and the motion is sustained by the board, a writ of error will lie from the order of the superior court judge affirming that decision. New Amsterdam Cas. Co. v. McFarley, 64 Ga. App. 465 (13 S.E.2d 588). Such an award is final because it disposes of the claim once and for all unless reversed. Being final, it is appealable to the superior court under Code § 114-710, and the finality of the award is not taken away by the fact that the superior court reverses and remands the case to the board for the reason that under the same Code section "any party in interest who is aggrieved by a judgment entered by the superior court" in a compensation case may appeal that decision to the Court of Appeals. As to pleadings in the superior court and other courts having like rules, a judgment is final for purposes of appeal if it would have been final if rendered as claimed by the plaintiff in error. Code (Ann.) § 6-701. Such is not the rule as to claims tried before the Board of Workmen's Compensation, *52 but rather the rule is that "The members of any of them shall hear the parties at issue and their representatives and witnesses and shall determine the dispute in a summary manner" (Code § 114-707), constituting such a final award as to support an appeal. The order of the full board in this case overruling the motion to dismiss left the claim pending before the board for hearing just as though such motion had not been filed, and settled nothing, so far as the right to or amount of compensation was concerned. It was accordingly not an appealable order under Code § 114-710.
2. The employer further assigns error on the refusal of the board to hear testimony in support of his various motions, which had been treated as preliminary motions by the board and set for hearing before the full board in Fulton County instead of following the usual procedure and setting the case in Baldwin County for a full hearing before a single director or deputy director. In the first place, since the Board of Workmen's Compensation is a creature of statute, there is no provision in the law for such preliminary hearings in the nature of pleas in abatement and the taking of testimony in regard thereto, the refusal of the board to hear evidence separately in support of the motion to dismiss was not error, and was not a final judgment. In the second place, the objections raised that no proper notice of accident was given the employer; that the deceased was not an employee within the meaning of the law, and that his death was due to disease rather than accident all go to the merits of the claim and evidence on these issues may properly be received when the claim is set for hearing.
The bill of exceptions in this case, being premature must be
Dismissed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329583/ | 98 Ga. App. 844 (1959)
107 S.E.2d 324
BLANKENSHIP
v.
HOWARD.
37468.
Court of Appeals of Georgia.
Decided January 21, 1959.
*851 Mitchell & Mitchell, D. W. Mitchell, for plaintiff in error.
Pittman, Kinney & Pope, H. E. Kinney, contra.
GARDNER, Presiding Judge.
1. We have set out the evidence somewhat in detail. The evidence was submitted to a jury, who found against the plaintiff. After a careful study of the evidence as it developed at the trial, we are constrained to hold that the jury arrived at the correct verdict, under the record before us. In our opinion there was sufficient evidence to sustain the verdict of the jury and that such verdict should not be set aside by this court. The facts are unlike the facts in Porter v. Kolb, 46 Ga. 266. The general grounds are not meritorious.
2. Special ground 1 assigns error because the court charged as follows: "Under the common law, contributory negligence on the part of the plaintiff's husband in an action based on negligence is an absolute bar to the plaintiff's recovery; and in suits for personal injuries or death received in a State in which the common law prevails, as in Tennessee, if the plaintiff's deceased husband by some negligence directly contributed to injuries sustained the plaintiff cannot recover even though it appears that the defendant was also negligent."
*852 Counsel for the plaintiff allege that such charge is erroneous because it is not a correct statement of the law under all the conditions and circumstances involved in the case now before us; that if there is any evidence of gross or wanton negligence on the part of the defendant, contributory negligence on the part of the plaintiff's deceased husband would not be a bar to recovery on the part of the plaintiff. Special grounds 5, 7, 8 and 9 are directed to this same excerpt from the charge and special grounds 2, 3 and 6 are directed to closely related excerpts.
The questions raised by this record are briefly: (a) Whether or not the court correctly applied the contributory-negligence rule when instructing the jury that the plaintiff would be barred from recovery if her husband were guilty of any negligence which was the proximate cause of the collision; (b) Whether or not the court correctly presumed that the law of Tennessee was the common law as interpreted by the Georgia courts. It will be noted that special grounds 4 also goes to this issue; (c) Whether or not the court excluded the defense that contributory negligence will not bar recovery if the defendant's negligence is gross or wanton in character.
The contention contained in (a) is without merit in view of many decisions of this court and the Supreme Court including Tuten v. Atlantic Coast Line R. Co., 4 Ga. App. 353 (61 S.E. 511); Minter v. Kent, 62 Ga. App. 265, 270 (8 S.E.2d 109) and Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 666 (88 S.E.2d 6). Contention (b) is not meritorious in view of the following decisions: Slaton v. Hall, 168 Ga. 710 (148 S.E. 741, 73 A.L.R. 891); Hines v. Evitt, 25 Ga. App. 606 (3, 4) (103 S.E. 865) and Craven v. Brighton Mills, 87 Ga. App. 126 (73 S.E.2d 248). Contention (c) is not meritorious because the court charged elsewhere as to the exception to this rule where the defendant is guilty of gross or wanton negligence, and the charge as a whole offers no such contradictory instructions as to mislead and confuse the jury. There is also a contention raised by a number of these special grounds to the effect that, since the defendant pleaded, and the stipulation admitted, a number of Tennessee statutes relating to traffic regulations, that the applicable statutes of Tennessee were in fact pleaded and there is left *853 no room in the case for the presumption that the law of Tennessee is the common law as interpreted by Georgia courts. The presumption was applied, not to statutes specifying what is negligence, but to rules of law on the effect of negligence, as to which no statutes were pleaded or proved. Consequently, this contention also is without merit. Therefore special grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 are not meritorious.
3. The remaining ground, special ground 10, complains that the "last clear chance" doctrine was not covered in the general charge. There was no request to charge on the doctrine, there were no pleadings relating thereto, and even the evidence upon which such a charge might have been predicated is slight. There was accordingly no reversible error committed in failing to charge on this rule of law. See Wright v. Bales, 62 Ga. App. 328 (7 S.E.2d 765) where it was held that the doctrine of last clear chance is but a phase of proximate cause, and, where the general charge substantially sets forth the rules of law by which the jury must be guided in determining proximate cause, specific instructions should be requested on this rule if they are desired by the parties.
The court did not err in denying the motion for new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329688/ | 123 Ga. App. 801 (1971)
182 S.E.2d 550
MacKENNA
v.
JORDAN et al.
45807.
Court of Appeals of Georgia.
Submitted January 4, 1971.
Decided May 7, 1971.
Rehearing Denied May 21, 1971.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, Malcolm H. Ringel, Williston C. White, for appellant.
Weston D. Baxter, for appellees.
BELL, Chief Judge.
The defendant's motion for summary judgment was denied and then certified for direct appeal. It is undisputed that Daniel Fuchs contracted to purchase a new home from the defendant, the owner and builder. Fuchs and his family moved into the house on March 1, 1969, prior to the final closing of the sale. The home at the time was practically completed. A concrete floor had not been poured in the front porch "stoop."
On March 11, 1969, defendant had two of his employees present on these premises landscaping the yard and they were instructed by defendant to place "some stuff on the steps" in order to block entry to the steps which led up to the still unfinished porch. As it existed at the time, this front entry to the house included 12 steps with an iron hand-railing which led upward to the unfinished porch adjacent to the front door. The porch area was then nothing more than a hole at the top of the steps approximately 12 feet deep. The plaintiff husband, a community minister, was advised of the recent occupancy of this home by the Fuchs. In making a pastoral visit the minister entered the premises for the purpose of welcoming the Fuchs to the community and to extend to them an invitation to visit his church. The time of this visit was about 7:30 p. m., March 11, 1969. The front area of the house was in total darkness but a light was on in the interior. Plaintiff noticed at the bottom of the steps a bag of fertilizer which had been laid lengthwise on the first step but which did not block the way. He climbed the steps and fell into the hole at the top injuring himself. On March 21, 1969, the sales transaction was consummated by defendant's delivery of a deed to Fuchs. Held:
1. It is clear that defendant was the lawful owner of the property at the time of plaintiff's injuries. Defendant admits that he was obligated by the terms of his contract with Fuchs to complete the house which included the pouring of the concrete floor. As between the defendant and Fuchs the relationship of landlord and tenant did not exist. The defendant put Fuchs into possession of the premises under the contract of sale not as a tenant, but as a purchaser. Where a party enters upon land *802 under a contract of purchase, landlord and tenant relationship does not come into existence. Brown v. Persons, 48 Ga. 60, 62; Griffith v. Collins, 116 Ga. 420 (42 SE 743); Griffeth v. Wilmore, 46 Ga. App. 96 (166 SE 673). Absent this relationship the provisions of Code § 61-112 concerning the liability of a landlord to third persons cannot apply. The fact of occupation by the purchaser prior to the final closing cannot change the fact that the defendant was the legal owner of the property.
2. Here the plaintiff was not an invitee. See Hall v. Capps, 52 Ga. App. 150 (182 SE 625) and Crossgrove v. Atlantic C. L. R. Co., 30 Ga. App. 462 (118 SE 694). Under the most favorable inferences to be drawn from the evidence, plaintiff's relation to the defendant was at most that of a licensee. Indeed, in a memorandum of law filed with the lower court, the defendant himself contended that plaintiff was a licensee. See Code § 105-402. The defendant, the owner of the house, permitted Fuchs, the purchaser of the incomplete house, to occupy it as his home with his family. From this fact an inference can be drawn that defendant impliedly permitted third persons to enter the premises to make welcoming visits. This implied permission would include the plaintiff minister. In the case of a licensee the owner must not wantonly and wilfully injure him. Since his presence as a result of his license is at all times probable, some care must be taken to anticipate his presence, and ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated. Mandeville Mills v. Dale, 2 Ga. App. 607 (58 SE 1060). To the licensee, as to the trespasser, no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, mantraps, and things of that type. Mandeville Mills v. Dale, 2 Ga. App. 607, supra. See Central of Ga. R. Co. v. Ledbetter, 46 Ga. App. 500 (168 SE 81) where an unlighted opening in a walkway from a dock to a ship provided for people to get on and off was held to be a mantrap.
From what has been said it is to be seen that there are issues for jury determination such as whether the defendant exercised the proper care in anticipating the plaintiff and whether the incompleted *803 porch constituted a hidden peril, mantrap or pitfall.
Judgment affirmed. Pannell and Deen, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329713/ | 256 S.C. 218 (1971)
182 S.E.2d 286
The STATE, Respondent,
v.
George Walter DUKES and King Farrison Watkins, Appellants.
19231
Supreme Court of South Carolina.
June 8, 1971.
*219 Messrs. Howard P. King, and Linwood S. Evans, of Sumter, for Appellants.
Messrs. Daniel R. McLeod, Atty. Gen., Emmet H. Clair, John P. Wilson, Asst. Attys. Gen., of Columbia, and Kirk McLeod, Esq., of Sumter, for Respondent.
June 8, 1971.
MOSS, Chief Justice:
The sole question for determination is whether the Appellants, George Walter Dukes and King Farrison Watkins, *220 were denied their right to a speedy trial as guaranteed under the Constitutions of the United States and of this State.
The Appellants, along with one Jack Simmons Horger, were arrested December 8, 1969 in Sumter County and charged with housebreaking and grand larceny. The appellants admitted being present during the commission of the above offenses, but allege that they were entrapped into committing such by one Arthur Sanders Durant, who they claim acted as an agent of the Sumter County Sheriff's Department and the South Carolina Law Enforcement Division in procuring their commission of the aforesaid offenses.
The case against the appellants and Horger initially came on for trial at the 1970 February term of Court of General Sessions for Sumter County. The appellants were represented by appointed counsel and were prepared for trial, as was the State. The appellants had subpoenaed Durant to testify in their behalf, and he was present in the courtroom when the case was called.
It appears that Horger had retained the services of a member of the Sumter Bar to represent him, but shortly before the trial, due to a conflict of interests, this attorney was relieved by order of the court. Thereafter Horger engaged the services of a Columbia attorney, and this attorney moved for a continuance on the ground of inadequacy of time to prepare for trial. The trial judge granted this motion over the objection of the appellants. The appellants then moved for a severance and requested that the case against them be immediately tried. The trial judge refused this motion and the case was continued until the 1970 April term of court. The appellants, when their motion for a servance was denied, requested the trial judge to place Durant under bond or incarcerate him to insure his presence at the April trial. This request was refused.
When the case was called for trial at the April, 1970 term of the Court of General Sessions the appellants moved to quash the indictment against them on the grounds that *221 the court's refusal, at the 1970 February term of court, to grant a severance and allow them to be tried was a denial of their right to a speedy trial and such delay was prejudicial to them because the witness Durant was unavailable to testify in their behalf. This motion was refused. The appellants did not move for a continuance due to the absence of the witness Durant, even though the trial judge indicated he would grant such a motion. The appellants, with full knowledge of the absence of the witness Durant whom they alleged to be a material witness, elected to go to trial. The appellants, while contending that Durant was a material witness in their behalf, made no showing of what facts he would testify to if present.
The case was tried and the appellant Dukes was found guilty of housebreaking and grand larceny and the appellant Watkins was found guilty of grand larceny. The appellants then moved for an arrest of the judgment of conviction and for a new trial, such was refused and this appeal followed.
We have held that a motion for a continuance and severance is a matter addressed to the sound discretion of the trial judge and only an abuse of such would constitute reversible error. State v. Harvey, 253 S.C. 328, 170 S.E. (2d) 657. We find no error on the part of the trial judge in granting the motion of the defendant Horger for a continuance in order to allow his attorney adequate time to prepare for trial.
The refusal of the trial judge to grant separate trials to the appellants, who were indicted along with Horger, and jointly charged with housebreaking and grand larceny, was not prejudicial where the charges arose out of the same facts and circumstances and where there was no conflict in the defenses interposed. We conclude that there was no abuse of discretion on the part of the trial judge in refusing the motion of the appellants for a severance or a separate trial.
*222 The fundamental law of this state reserves to each defendant the right to a speedy trial. Art. 1, Sec. 18, of the 1895 Constitution. The Sixth Amendment to the Constitution of the United States contains a like provision and it applies to state criminal cases by virtue of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed. (2d) 1.
In Wheeler v. State, 247 S.C. 393, 147 S.E. (2d) 627, we said:
"Whether or not a person accused of crime has been denied his constitutional right to a speedy trial is a question to be answered in the light of the circumstances of each case. A speedy trial does not mean an immediate one; it does not imply undue haste, for the state, too, is entitled to a reasonable time in which to prepare its case; it simply means a trial without unreasonable and unnecessary delay. 21 Am. Jur. (2d), Criminal Law, Section 243. As was said in Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950:
`The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice'."
The burden was on the appellants, who assert that they were denied their constitutional right to a speedy trial, to show that the delay was due to the neglect and willfulness of the State's prosecution. 21 Am. Jur. (2d), Criminal Law, Sections 251-253, at page 286, State v. Hollars, 266 N.C. 45, 145 S.E. (2d) 309. It has been held that "while justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed." Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed. (2d) 1041.
When this case was called for trial at the 1970 February Term of court, a joint trial was contemplated. The appellants and the State were ready to proceed *223 with the trial and the only reason that the case was not then tried was because of the granting of the motion for a continuance made in behalf of Horger, a co-defendant. The delay in the trial was not brought about by any action of the State but was solely attributable to Horger, and a delay caused in this manner cannot be used as a basis of a claim that the appellants have been denied a speedy trial. The delay must be attributable to the State before the appellants can complain. Garner v. State, 1 Storey 301, 145 A. (2d) 68.
The appellants contend that the delay of their trial from February 1970 until April 1970, approximately two months, was prejudicial to their interest because the witness Durant was unavailable at the April Term of Court. Assuming that Durant was a material witness in behalf of the appellants, their decision to proceed to trial without his presence, cannot now be advanced as a ground for holding that they were denied a speedy trial. This is especially true in view of the fact that the trial judge suggested that a motion for a continuance on the ground of the absence of this witness would be granted. The appellants made no effort to comply with Circuit Court Rule 27, nor did they make a showing of what fact or facts Durant would testify to, if present.
It is our conclusion that the delay in the trial of the appellants was not due to the neglect and willfulness of the State but was solely due to the motion of their co-defendant. The appellants have not, under the record here, been denied their constitutional right to a speedy trial.
The exceptions of the appellants are overruled and the judgment below is,
Affirmed.
LEWIS, BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329746/ | 123 Ga. App. 820 (1971)
182 S.E.2d 498
GRIFFIN
v.
THE STATE.
46092.
Court of Appeals of Georgia.
Argued April 7, 1971.
Decided April 30, 1971.
Rehearing Denied May 25, 1971.
Drew, Hendrix & Shea, John W. Hendrix, for appellant.
A. Wallace Cato, District Attorney, for appellee.
QUILLIAN, Judge.
The defendant was convicted of performing an illegal abortion. A motion for new trial was overruled and the case is here for review. Held:
1. Enumeration of error number 2 contends that the testimony of a State's witness should have been excluded because she was impeached. Assuming that the witness was impeached, the effect of such evidence is to be determined by the jury. Code § 38-1803.
*821 2. Enumeration of error number 3 argues that certain testimony should not have been admitted. However, no proper objection was made. Aycock v. State, 188 Ga. 550 (10) (4 SE2d 221).
3. The fourth enumeration of error complains that a witness was allowed to testify whether his department had had complaints of abortions in Bainbridge. Evidence which was substantially the same was previously admitted without objection. Justice v. State Hwy. Dept., 100 Ga. App. 794 (3 a) (112 SE2d 307). Also the objection was not sufficient in that counsel only stated: "I object to that." Clay v. State, 122 Ga. App. 677 (1) (178 SE2d 331).
4. In enumeration of error number 5 it is argued that a State's witness should not have been allowed to testify as to a phone conversation she had with the defendant. However, this evidence was not objected to at the time it was offered. See Clydesdale Bank v. Blackshear Mfg. Co., 18 Ga. App. 515 (4) (89 SE 1051).
5. The appellant argues in enumeration number 6 that certain records of the telephone company should not have been admitted. When the records were introduced in evidence there was no objection.
6. Enumerations of error 7, 8 and 9 object to the admission of the testimony of a State's witness that she had seen the defendant perform other abortions. The evidence was properly admitted to prove motive and scheme of the accused. Moore v. State, 221 Ga. 636 (1) (146 SE2d 895). The evidence showed that the other abortions were so similar in point of time and method that proof of one tended to prove the present case. Craig v. State, 91 Ga. App. 418 (2) (85 SE2d 777).
7. Enumerations of error numbers 13 and 15 assign error on the testimony of a State's witness that she had seen the defendant perform abortions on the ground that she was not qualified as an expert. A reading of the witness's testimony shows that she testified to sufficient facts upon which she could base her opinion that she had observed the defendant performing abortions. A witness need not be an expert to testify as to an opinion if sufficient facts are testified to upon which such opinion is based. See Code § 38-1708; Ga. R. &c. Co. v. Bailey, 9 Ga. App. *822 106 (4) (70 SE 607); Macon & Western R. Co. v. Johnson, 38 Ga. 409 (5). Moreover, the defendant was cross examined as to the same subject matter.
8. The constitutionality of a law may not be raised for the first time in a motion for a new trial. Woods v. State, 222 Ga. 321 (1) (149 SE2d 674). Enumeration of error number 17 is without merit.
9. The evidence was sufficient to support the verdict.
Judgment affirmed. Jordan, P. J., and Evans, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329781/ | 506 S.E.2d 169 (1998)
233 Ga. App. 879
EVANS
v.
The STATE.
No. A98A1349.
Court of Appeals of Georgia.
August 14, 1998.
*171 Watkins & Watkins, Augusta, John D. Watkins, Atlanta, for appellant.
Dennis C. Sanders, District Attorney, Durwood R. Davis, Davis, Assistant District Attorney, for appellee.
*170 JOHNSON, Presiding Judge.
Robert Evans appeals his conviction of aggravated child molestation and child molestation committed upon a four-year-old child.
1. Evans contends the trial court erred when it held his defense counsel in contempt of court and fined counsel for not being in court at a certain time. Compare In re Booker, 195 Ga.App. 561, 562(1), 394 S.E.2d 791 (1990). Pretermitting whether the trial court erred in holding Evans' trial counsel in contempt is whether such conduct prejudiced Evans. We hold that it did not.
Evans waived trial by jury and elected to be tried by the judge alone. Trial judges are presumed to be capable of separating "admissible grains of evidence from inadmissible chaff." (Citations and punctuation omitted.) Stevens v. State, 213 Ga.App. 293, 295(2), 444 S.E.2d 840 (1994). The fact that trial counsel was sanctioned was inadmissible chaff regarding the issue of Evans' innocence or guilt and there is no showing that the trial court did not correctly recognize it as such. Both error and harm must be affirmatively shown by the record to authorize a reversal on appeal. Robinson v. State, 212 Ga.App. 613, 616(2), 442 S.E.2d 901 (1994). This enumeration of error is without merit.
2. Evans contends that because the state did not inform him before trial of the existence of a videotape in which a child advocate interviewed the victim, the trial court erred in admitting the tape into evidence. This contention is without merit.
The prosecutor stated on the record that Evans was informed before trial that the videotape existed and was invited to view the videotape at the district attorney's office. Evans' trial counsel denied that he had ever been notified of or invited to view the video. The trial judge overruled the objection, noting that he recalled that the state's attorney did tell trial counsel the videotape was available for viewing.
Evans' only citation of authority as to this enumerated error is Wallin v. State, 248 Ga. 29, 279 S.E.2d 687 (1981). He cites Wallin as direct support for his claim that if he had known about the tape before trial a suppression motion would have been submitted which "may have affected the outcome of the trial." Wallin, however, does not support Evans' claim of any form of prejudicial discovery error. In Wallin the defendant objected to certain information on the grounds that it should have been furnished to him pursuant to a Brady motion. Id. at 32(6), 279 S.E.2d 687. The Supreme Court ruled in Wallin that when a defendant merely asks for all Brady material or for anything exculpatory, such a request really gives the prosecutor no better notice than if no request is made. Evans has not enumerated that any Brady error occurred and has not even mentioned Brady in his appellate brief. Further, a Brady violation does not occur when the information sought becomes available at trial. Burgeson v. State, 267 Ga. 102, 104(2), 475 S.E.2d 580 (1996).
Even assuming Evans was not provided with a copy of the videotape before trial, the record reflects that he was placed on reasonable notice of its existence. On or about September 4, 1997, immediately after receiving Evans' discovery request, the state provided his trial counsel with a complete copy of its entire case file. The case file was accompanied by a certificate of service with an attached exhibit list. Item # 1 of the exhibit list contained in the case file is a three-page case summary prepared by the investigating officer. Under these additional circumstances, there is no basis for reversal of the trial court's ruling. Moreover, Evans failed to move for a continuance to review and analyze the information contained in the videotape when it was offered, and failed to show how a reasonable probability exists that information contained in the videotape would *172 have resulted in a different verdict if the evidence had been disclosed to the defense before trial. See also Waldrip v. State, 267 Ga. 739, 750(17), 482 S.E.2d 299 (1997). Evans merely contends that if he had known sooner of the videotape, he would have filed a motion to suppress, which if granted "may have affected the outcome of the trial." This general assertion of error is not sufficient to require reversal of his convictions. Harm as well as error must be affirmatively shown by the record to obtain reversal. Robinson v. State, 212 Ga.App. 613, 616(2), 442 S.E.2d 901 (1994). Evans, at best, presents this Court with mere speculation and conjecture as to what result that motion to suppress the videotape would have yielded. Harm cannot be shown by mere speculation and conjecture unsupported by the record. See Bell v. State, 226 Ga.App. 271, 273(4), 486 S.E.2d 422 (1997).
Evans' discovery request is not contained in the trial record on appeal, and Evans does not cite to any page in the trial record or transcript where it may be found. When a portion of the record bearing upon the issues raised by the enumerations of error is not brought up so that this Court can make its determination from a consideration of all relevant evidence bearing thereon, an affirmance as to that issue must result. See Santone v. State, 187 Ga.App. 789, 790-791(1), 371 S.E.2d 428 (1988).
3. The trial court did not err when it allowed into evidence a stuffed doll with male genitalia and a Penthouse and a High Society adult magazine on the ground that the items were admissible to show lustful disposition and bent of mind. See Hill v. State, 183 Ga.App. 654, 656(3), 360 S.E.2d 4 (1987) (physical precedent only); Tyler v. State, 176 Ga.App. 96, 99(1), 335 S.E.2d 691 (1985).
It is of some additional relevance, albeit slight, that these three items were found stored together in a box in Evans' bedroom closet. Also, the victim testified that Evans showed her an unidentified "stuffed doll" when she was in his house and that she had not asked to see it.
Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, Georgia courts favor the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jury. Norman v. State, 197 Ga.App. 333, 336(4), 398 S.E.2d 395 (1990).
Additionally, greater latitude is permissible in the introduction of evidence in a bench trial, as the trial judge is presumed to be capable of weighing evidence without being swayed by its potentially inflammatory nature. See Graves v. State, 227 Ga.App. 628, 630, 490 S.E.2d 111 (1997) (trial judge is presumed to consider only legally admissible evidence).
4. Evans contends the trial court erred when it found him guilty as there is no direct evidence that he committed aggravated child molestation and child molestation as averred in the indictment. We disagree.
On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Hendrix v. State, 230 Ga.App. 604, 607(5), 497 S.E.2d 236 (1997); Grant v. State, 195 Ga.App. 463, 464(1), 393 S.E.2d 737 (1990).
Examining the evidence in the light most favorable to the jury, including the videotaped interview of the victim, the trial testimony of the child victim and her mother, the medical testimony of the doctor who examined the victim, and the rebuttal testimony of the victim's older aunt, there exists sufficient evidence of the following relevant facts. The victim went to Evans' apartment to get permission to ride one of Evans' bicycles. While at the apartment Evans took the victim into his bedroom, fondled her breasts and placed his penis in her vagina. That evening the victim told her mother what had happened. The mother examined the victim and discovered a tear in the child's vaginal and rectal area. The mother and an aunt gave the child a bath and put Neosporin on her. The next day the victim complained that there was a burning in her vaginal area. *173 She was taken to the doctor who discovered a rectal tear and other physical evidence from which he concluded that the victim's injuries were consistent with digital and/or attempted penal penetration of the rectal area.
The victim testified on cross-examination that she told her mother what Evans had done, her mother did not tell her what to say, and that Evans carried her "in the room," showed her a stuffed doll and touched her.
Guilt may be established beyond a reasonable doubt by direct evidence, circumstantial evidence or a combination of both. See generally OCGA §§ 24-1-1; 24-3-16; 24-4-5.
Evans does not enumerate as error that the statements made by the victim during the videotape interview or to her mother were given under circumstances which failed to provide a sufficient indicia of reliability. Thus, this issue is not before us on appeal. See Krebsbach v. State, 209 Ga.App. 474, 475(2), 433 S.E.2d 649 (1993).
Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Evans was guilty of the offenses of aggravated child molestation and child molestation. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Judgment affirmed.
SMITH, J., and HAROLD R. BANKE, Senior Appellate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329831/ | 124 Ga. App. 102 (1971)
182 S.E.2d 905
FENSTER
v.
GULF STATES CERAMIC.
46091.
Court of Appeals of Georgia.
Argued April 5, 1971.
Decided June 4, 1971.
Rehearing Denied June 22, 1971.
*103 Hugh H. Howell, Jr., for appellant.
Gambrell, Russell, Killorin, Wade & Forbes, Edward W. Killorin, Sewell K. Loggins, for appellee.
PANNELL, Judge.
A husband sued his wife's employer seeking damages for loss of consortium. The employer denied liability and on motion for summary judgment it was shown that the wife had received compensation for her injuries under the Workmen's Compensation Act of this State. Based upon this fact, the trial judge granted the defendant's motion for summary judgment and the plaintiff husband appealed.
The question here is whether a husband, not dependent upon the wife under Code § 114-414 (b), is precluded from recovering for loss of consortium occasioned by injuries received by the wife as a result of the negligent act of the wife's employer where the wife has received compensation for her injuries under the Workmen's Compensation Act, but not under Chapter 8 thereof. Code § 114-103 (Section 12 of the Workmen's Compensation Act; Ga. L. 1920, pp. 167, 176) provides: "The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this Act, agreeing respectively to accept and pay compensation on account of personal injury or death, by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service, or death." (Emphasis supplied.) There is no express language in this section which excludes a husband from recovery upon a common law action for loss of consortium nor is such exclusion implicit in the language used. A husband is not, by reason of that relationship, next of kin to the wife. Wetter v. Walker, 62 Ga. 142 (2). It is insisted, however, by the appellee that the Workmen's Compensation Act, in view of its beneficent purpose and remedial character, is to be so liberally and broadly construed as to effect its general purpose in every instance in which the language is such as to render judicial interpretation necessary (Jones v. Ga. Cas. Co., 30 Ga. App. 207 (117 S.E. 467); New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682 (118 S.E. 786); Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560 (121 S.E. 345)), and that in so construing the Act it must be held that the legislature intended *104 the Act to release the employer of all liability for any tort from any complainant when the injury sustained by the employee is covered by the Workmen's Compensation Act. Appellee relies upon the following authorities: Wall v. J. W. Starr & Sons Lumber Co., 68 Ga. App. 552 (23 SE2d 452); Central of Ga. R. Co. v. Lester, 118 Ga. App. 794 (165 SE2d 587); Danek v. Hommer, 9 N. J. 56 (87 A2d 5); Smither & Co. v. Coles, 242 F2d 220; Napier v. Martin, 194 Tenn. 105 (250 S.W.2d 35); 2 Larson, Workmen's Compensation, Section 66-20 and cases cited therein. Some of these cases can be distinguished because of the party bringing the common law action or because of the nature of the action. Some of them (foreign cases) cannot be distinguished on either basis. The foreign authorities relied upon, involving a common law action, are based on the so-called broad aspects of, and the liberal construction of, Workmen's Compensation Acts as a whole to arrive at an "intent" of the legislature entirely different from that actually expressed in the very section of the Act designed to list and state the remedies excluded by the operation of the Act, and for this reason we do not consider them even persuasive authority. We have rules of construction applicable, in addition to the liberal construction rule and which rules must also be used and applied in construing our Act. The express language of the Act listing those remedies and actions excluded or prohibited must be held not to exclude those remedies or actions by parties not so listed (see Sherman Stubbs Realty &c. v. American Institute of Marketing Systems, 117 Ga. App. 829, 831 (162 SE2d 240) and not in privity with the employee and whose right of action is not derivative of the employee's common law cause of action. There is a difference in liberally construing an Act to give effect to its "general purpose," and liberally construing an Act to determine its "general purpose." All other provisions of the Act, except one which will hereinafter be mentioned, from which it might be implied that causes of actions or actions by certain parties are to be excluded are sections which specifically mention employer and employee, and, contrary to some of the foreign authorities relied upon by appellee, we cannot find anything implicit in those sections covering the situation here, or any language to show that the "general purpose" of the Act was to release the employer from liability for his negligence as against *105 all persons and all causes of action. Further, where there is general language in a statute which might be interpreted as covering a situation, and there is specific language in the statute relating to that situation, the specific language controls over the general language. See State Revenue Commission v. Alexander, 54 Ga. App. 295 (187 S.E. 707). It is our opinion that the language of exclusion expressed in Code § 114-103 is plain insofar as the fact that it does not exclude a common law action by the husband for loss of consortium. Where a statute is plain, it needs no construction (Rayle Electric Membership Corp. v. Cook, 195 Ga. 734 (2) (25 SE2d 574); Fulton County Employees Pension Board v. Askea, 95 Ga. App. 77 (97 SE2d 389), and in construing statutes where the statute "is plain, unambiguous and positive, and is not capable of two constructions, the court is not authorized to construe the Act according to what is supposed to be the intention of the legislature. Floyd County v. Salmon, 151 Ga. 313, 315 (106 S.E. 280); Fidelity & Casualty Co. v. Whitaker, 172 Ga. 663, 667 (158 S.E. 416)." (Emphasis supplied.) Atlanta & W. P. R. Co. v. Wise, 190 Ga. 254, 255 (9 SE2d 63).
This interpretation is further enforced by another section of the Code (Code Ann. § 114-811) enacted in 1946 (Ga. L. 1946, pp. 103, 109, dealing with claims under a new chapter, Chapter 8, Occupational Diseases) which section is entitled "Exclusiveness of Remedy" and which provides in part: "Whenever an employer and employee are subject to the provisions of the Workmen's Compensation Law of Georgia, the liability of the employer Under this Chapter shall be exclusive and in place of any and all other civil liability whatsoever at common law or otherwise to such employee or his personal representative, next of kin, spouse, parents, guardian or any others, on account of disability or death from any disease or injury to health as defined in this Chapter in any way incurred by such employee in the course of or because of his employment." (Emphasis supplied.) To say that the exclusionary provisions of § 114-103 are the same as those in § 114-811 is to totally ignore material differences in language used to express the intent of the legislative body in each instance. This we cannot do. We accordingly hold that the trial court erred in granting the defendant's motion for summary judgment based upon the alleged *106 exclusive remedies provided by the Workmen's Compensation Act.
There are no rulings by this court contrary to what is here ruled, nor is there anything contrary hereto in a number of the foreign cases relied upon by the appellee. Before distinguishing these cases let us first establish certain preliminary legal principles existing in this State, which will aid in making these distinctions. (a) The right or cause of action for loss of consortium by the husband is independent of the wife's cause of action for the injuries to her person, as his action is for injuries to a "property right." Hobbs v. Holliman, 74 Ga. App. 735 (1) (41 SE2d 332). And any recovery or settlement or bar of the wife's action does not necessarily constitute a bar to the husband's right of action for the loss of consortium, as the husband is not a privy of his wife (Russ Transport, Inc. v. Jones, 104 Ga. App. 612, 614 (122 SE2d 282)) and his cause of action is not derivative of her cause of action. Ga. R. & Bkg. Co. v. Tice, 124 Ga. 459, 461 (52 S.E. 916, 4 AC 200). (b) The right or cause of action under our death statute is derivative of a cause of action had by the deceased, and a settlement by the deceased, before death, is a bar to the action under the death statute by the beneficiaries. Southern Bell Tel. &c. Co. v. Cassin, 111 Ga. 575 (36 S.E. 881, 50 LRA 694). (c) The cause of action of the husband suing for consortium is (1) not derivative of the wife's cause of action for injuries to her, (2) nor is he in privity with her as to her cause of action, (3) nor is he a beneficiary under the Workmen's Compensation Law.
In Wall v. J. W. Starr & Sons Lumber Co., 68 Ga. App. 552, 556, supra, in an action by a mother for the death of her son, against the son's employer and another, a nonsuit was granted in favor of the employer. The plaintiff appealed and this court held: "The plaintiff alleged, and this allegation was not striken by amendment, that her son, in riding on the load of lumber, was aiding the defendants at their request and for their benefit, and was their servant and employee to help in the transportation and unloading of the lumber. It follows that any right which the plaintiff may have to recover for the death of her son, on account of dependency on him for support and contributions by him to her support, would arise under the workmen's compensation laws and not under the statute giving compensation to the mother for the *107 death of her child where the defendant is at fault. The court did not err in granting a nonsuit as to the lumber company. The question as to the liability of Goodwin is not presented for determination." (Emphasis supplied.) This holding is correct for two reasons. (1) The mother was a beneficiary under the Workmen's Compensation Act because of the economic dependency, which was also the basis of the common law action brought by her, and (2) the action was brought under our death statute and the cause of action was derivative of that of the employee whose common law right of action against the employer was expressly barred under the Workmen's Compensation Act. In Central of Ga. R. Co. v. Lester, 118 Ga. App. 794, supra, an employee under the Workmen's Compensation Act brought an action against a third party. This defendant brought a third-party action against the employer of the plaintiff seeking contribution in the event of a recovery against him. In determining whether the third-party complaint stated a claim against the employer third-party defendant this court held it did not and in so doing quoted from O'Steen v. Lockheed Aircraft Corp., 294 FSupp. 409, as follows (p. 803): "We come then to the question whether the third-party complaint might be sustained on the theory of contribution; and again it is clear that under Georgia law third-party plaintiff cannot prevail, even under Georgia's amended statute relating to contribution (Georgia Code § 105-2012). This is true because that statute relates only to contribution among `joint trespassers' (that is, joint tortfeasors), and the proposed third-party defendant cannot be made liable as a joint tortfeasor because it, as employer, has already paid workmen's compensation to the plaintiffs. See Williams Bros. Lumber Co. v. Meisel, 85 Ga. App. 72, 74-75. In line with these observations, it appears obvious to the court that what the third-party plaintiff really seeks is to tender the plaintiffs a substitute defendant. This cannot be done for the same reason; that is, having paid compensation for an injury to its employee one time, the third-party defendant cannot be liable again in tort (Georgia Code § 114-103) and, moreover, the tender of a substitute defendant would seem to be prohibited by amended Rule 14 itself, which now prohibits third-party complaints where the liability of the proposed third-party defendant, if any, runs only to the original plaintiff rather *108 than to the third party defendant." (Emphasis supplied.) Appellees rely upon the italicized portion as authority to support their contentions. Properly construed, in connection with the facts upon which it was ruled, this language means "the third-party defendant cannot be liable again in tort to the plaintiff employee." The right of the third-party plaintiff to contributions from the third-party defendant (the employer) was derivative of the right of the original plaintiff (the employee) to recover against the third-party defendant and this right being barred under the terms of the Workmen's Compensation Act, the third-party plaintiff's right is likewise barred.
In Napier v. Martin, 194 Tenn. 105, supra, a wife sued an employer for loss of services and consortium because of injuries sustained by the husband, who had been drawing benefits under the workmen's compensation act of that state. In deciding against the wife (without deciding whether in the absence of a workmen's compensation act the wife had a cause of action, and without deciding whether if she so had, it was derivative or not of the husband's cause of action) the Tennessee court followed a prior decision of that court (McDonald v. Dunn Construction Co., 182 Tenn. 213 (185 S.W.2d 517)), in which case it was held that a widow's action against the employer for the death of a husband was barred as she was relegated to the benefits under the workmen's compensation act of that state. In following this prior decision, we think that the Tennessee court erred. There is a decided distinction between the right of a person where such person is a beneficiary under the workmen's compensation act, and where such person is not. The Tennessee court failed to recognize this obvious difference, and further ignored the material question as to whether the cause of action of the wife, if any, was derivative of that of the husband which right of the husband was expressly excluded by the Workmen's Compensation Act. We, therefore, do not consider this case as even a persuasive authority. In Danek v. Hommer, 9 N. J. 56, supra, an action by a husband against the employer based upon loss of consortium caused by injuries received by the wife while in the defendant's employ, the New Jersey court used the so-called broad and liberal approach to the interpretation of the statute and also followed cases which, in our *109 opinion, were distinguishable for reasons already discussed here. There was a dissent in that case by Chief Justice Vanderbilt. In our opinion, the dissent of Chief Justice Vanderbilt, which accords with the views which we have expressed in construing our own statute, sets forth the sounder view. See in this connection Prosser, Law of Torts (3d Ed.), pp. 914, 915. It is our opinion, therefore, that the trial court erred in granting defendant's motion for summary judgment.
In ruling as we have, it is not our intention to express or intimate any opinion as to whether the legislature would have the right and authority to abolish the common law action without, at the same time, enacting in lieu thereof some correlative benefits.
Judgment reversed. Bell, C. J., and Deen, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2209914/ | 8 Cal.App.2d 738 (1935)
PATRICIA JAQUES, a Minor, etc., Respondent,
v.
SOUTHERN PACIFIC COMPANY (a Corporation) et al., Appellants.
Civ. No. 9729.
California Court of Appeals. First Appellate District, Division Two.
August 14, 1935.
Elliott Johnson for Appellants.
Brown, Ledwich & Rosson for Respondent.
Nourse, P. J.
In an action for damages for personal injuries the plaintiff had a verdict for $35,000 which the trial court reduced to $25,000. The defendant appeals from the judgment as so modified.
The injuries occurred while plaintiff was standing in a painted safety zone near the intersection of Shattuck Avenue and Kittredge Street in the city of Berkeley. On Shattuck Avenue the defendant operated two sets of railroad tracks running in a northerly and southerly direction and upon the same avenue the East Bay Street Railway Company operated two street railway tracks running in the same direction. The whole of Shattuck Avenue, which is approximately 130 feet wide, including the portion occupied by the four railway tracks, was devoted to vehicular and pedestrian traffic. No exclusive right of way was held by either of the railway companies. Between the sets of tracks of the two companies above mentioned there was maintained a safety zone approximately fifty feet long and three feet ten inches wide running parallel to the rails. The outside line of this safety zone was four feet nine and one-half inches from the most easterly rail of the defendant company but less than twenty-two inches from the overhang or projection of the cars operated by the company on those rails. While the plaintiff was standing in this safety zone awaiting to board an approaching car of the street railway company and with her back to the rails of the defendant company she was pulled under a passing train of the defendant company and suffered the loss of a leg slightly below the knee. The theory of the plaintiff, supported by substantial evidence, is that while she was standing in this safety zone with her back to the defendant's track the train passed at an excessive and unreasonable rate of speed without any sound of warning by bell, whistle or otherwise; that the speed of the train drew a coat which she was wearing into *740 contact with some portion of the car so that she lost her balance and was thrown or fell under the wheels of one of the trucks. The theory of the defendant throughout the trial below was that the plaintiff carelessly and negligently ran in front of the train and was struck by some portion of the train and thrown under the wheels. Credible evidence supported defendant's theory, but it was weakened to some extent by the absence of proof that there appeared upon the body of the plaintiff any physical evidences of having been struck by the train. The jury rejected defendant's theory and found that it was negligent. The evidence of excessive speed and failure to give warning is sufficient to support the charge of negligence.
[1] The appeal does not present any debatable question. The appellant first argues that the evidence in support of respondent's theory of the accident is inherently incredible. To create this argument appellant states that respondent contended that she was drawn under the train by suction. But such was not her contention. The evidence upon which she relies is that the suction from the train drew her coat out behind her so that she lost her balance and fell under the moving train. The evidence showed that this actually occurred and we are not permitted to indulge in conjectures as to what might or might not have happened.
[2] Secondly, it is argued that the judgment should be reversed because the defendant could not have foreseen the unusual consequences resulting in the injuries to respondent. But respondent's case does not depend upon the failure to take precautions against unusual consequences but upon the direct evidence of the negligent operation of the train at that particular moment.
[3] It is then argued that the respondent should have anticipated the danger from suction to a person standing near a railway track and that she was therefore guilty of contributory negligence. Manifestly, if the engineer, who had operated trains for more than thirty years, was not chargeable with knowledge of this particular danger it cannot be said as a matter of law that an eighteen-year-old school girl should be deemed to have anticipated the same danger. Like the question of appellant's negligence, this question of respondent's contributory negligence was one of simple fact which was properly left with the jury. *741
[4] It is then argued that the trial court erred in refusing to give an instruction upon the subject of an unavoidable accident. There was no evidence upon which this instruction could be based. All the evidence tended to support the respective theories of the two parties--one, that the accident was due to the careless and negligent operation of the train, the other, that it was due to respondent's negligence in running in front of the moving train. The evidence all tended to prove the respective theories--that the accident was not unavoidable but that it could have been avoided by the other party.
[5] Finally, it is argued that the damages awarded are excessive. No contention is made that the verdict was the result of passion or prejudice on the part of the jury, but the sole contention is that this court should adjudge a different amount to be the reasonable damages incurred. It is, of course, elementary that the amount of the award is a matter for the trial court and jury to determine and that an appellate court cannot fix a different amount in the absence of a showing that the verdict was the result of passion or prejudice.
The judgment is affirmed.
Sturtevant, J., and Spence, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329845/ | 123 Ga. App. 806 (1971)
182 S.E.2d 485
STATE HIGHWAY DEPARTMENT
v.
HODGES.
45889.
Court of Appeals of Georgia.
Submitted January 13, 1971.
Decided May 21, 1971.
Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Richard L. Chambers, Assistant Attorney General, Alvin Leaphart, for appellant.
Reinhardt, Ireland, Whitley & Sims, Bob Reinhardt, Thomas & Howard, for appellee.
WHITMAN, Judge.
By condemnation a strip of land for limited access highway construction was taken through condemnee's land. The condemned strip divided the condemnee's land into two portions such that after the taking plaintiff had a tract of approximately 1,700 acres remaining on one side of the condemned strip and approximately 28 acres remaining on the other side.
1. Unsatisfied with the condemnor's estimate of just and adequate compensation, the condemnee appealed the issue to a jury and called one R. L. Harrison, among others, to testify as an expert as to the value of the 15 acres taken, and also as to the consequential damages to the two remaining portions. When asked to give his opinion of the consequential damages to the remaining 1,700 acre portion, he replied: "Well, when you've got wooded land in or near the city many uses could be had for that particular land, and I have in several instances subdivided nice timber tracts, cut a street in there, if you sell and they begin to build some houses and dedicate the roads to the county, the roads are maintained, and in so many residential developments *807 you can sell a lot on a street facing a hundred by two hundred, which we'll say a half an acre of land we call it in the city, certainly four or five hundred dollars for a half an acre and the land would bring eight hundred or a thousand dollars, and if you dropped it way down it would still have a great value, but you're not gonna have a very successful development next to an interstate road where the trucks are roaring by all night. I know I sleep in motels now on the interstates and why they built them right close I don't know, but they roar all night and wake you up several times. People wouldn't want to build a house very close to it. And certainly the two hundred or more acres in that near the road would be greatly damaged. The damage is enhanced by people throwing out cigarettes, cigars, causing fire that could damage the whole thing. It's hard to tell where the Forestry Department could stop a timber fire. Those hazards are not there now because the traffic is not there, the people are not there, but fire hazards are great when you put a road through because it will happen. You have people that roam off of the highways and go out through your woods and do damage of one kind or another, and, of course, along with that cause the fires, the poachers. And certainly it's not a real estate development. Now a small loss would be that sometimes we have a game preserve. Certainly there will be no wild life close to that road, not apt to for a long time. It'll go back to the swamps or Altamaha or some place, but to me there's considerable damage, and more particularly if a person wanted to subdivide it. Q. Do you have any opinion as to what that damage would amount to? A. Well, I think very definitely that the figure I have is conservative. I think there's consequential damages of least ten thousand five hundred dollars because a small tract subdivided would bring that in a hurry when you go to selling lots on a decent street or road that you have."
The condemnor objected to this testimony on the ground that his opinion was based on speculation and conjecture and not on those matters which may properly be considered in making such calculations. The objection was overruled and is enumerated as error.
The evidence was that the land, at the time of the taking, was *808 devoted to timber production and also to raising livestock and wildlife. Under proper evidence, in determining just and adequate compensation for property taken by eminent domain, the jury may consider the value of the property for uses other than that for which it was being used at the time of the condemnation. State Hwy. Dept. v. Robinson, 103 Ga. App. 12, 16 (118 SE2d 289). But the fact that one's land is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation. If there is not a present demand for such use, it must be made to appear that such use of the land is so reasonably probable as to have an effect on the present value of the land. State Hwy. Dept. v. Howard, 119 Ga. App. 298, 303 (167 SE2d 177); Ga. Power Co. v. Livingston, 103 Ga. App. 512, 513 (119 SE2d 802). In the present case there was evidence that the land in question was nicely wooded and physically suited for residential subdivision if such a demand ever arose. But the evidence fell far short of showing that such use was reasonably probable and had in fact affected the value of the land. For a case in which the evidence concerning the condemned land did indicate a reasonable probability for use as a residential subdivision, see State Hwy. Dept. v. Thomas, 106 Ga. App. 849, 850 (128 SE2d 520).
It was error to admit the testimony in question over the condemnor's timely and well taken objection. A new trial is required.
The condemnor's remaining enumerations, which relate to certain other evidentiary rulings, are either without merit or are not likely to arise on a new trial and will not be discussed.
Judgment reversed. Hall, P. J., and Eberhardt, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329850/ | 182 S.E.2d 244 (1971)
11 N.C. App. 670
STATE of North Carolina
v.
Lewis Edward TURNER.
No. 717SC369.
Court of Appeals of North Carolina.
July 14, 1971.
*245 Atty. Gen. Robert Morgan by Asst. Attys. Gen. William W. Melvin and T. Buie Costen, for the State.
Thorp & Etheridge by William D. Etheridge, Rocky Mount, and W. O. Rosser, Whitakers, for defendant appellant.
CAMPBELL, Judge.
Defendant assigns as error the actions of the trial judge in finding that defendant, by his absence from trial, waived his right to be present and in proceeding with the trial in defendant's absence. In a criminal prosecution it is the right of the accused to be present at the trial, unless he waives that right. State v. Pope, 257 N.C. 326, 126 S.E.2d 126 (1962). But where the defendant voluntarily absents himself from the courtroom, and especially when he has fled the court, such conduct may be considered and construed as a waiver, and the presence of the defendant is not considered as essential to a valid trial and conviction. State v. Cherry, 154 N.C. 624, 70 S.E. 294 (1911).
Here, defendant did not appear in court when court reconvened the next morning but he did send a letter through his wife explaining that he had gone looking for a witness. There was nothing to indicate, as there was in State v. Cherry, supra, that defendant had fled. The court, accordingly, gave defendant the benefit of *246 the doubt and waited for over a day for defendant to reappear. It was only after defendant had been given ample opportunity to return to the courtroom that the trial judge entered an order finding that defendant had waived his right to be present for the remainder of the trial. Further, all proceedings concerning the absence of defendant from the trial were conducted out of the presence of the jury thus preventing any possibility of prejudice to the defendant in the eyes of the jury. We are of the opinion that the trial judge properly construed defendant's extended absence from the courtroom as a waiver of his right to be present for the remainder of the trial.
Defendant also assigns as error the failure of the trial judge to instruct the jury of defendant's right to waive his right to be present at the trial and that his absence should not be considered with regard to his guilt or innocence. However, the record does not reveal that counsel for defendant requested the court to charge the jury regarding defendant's absence. "`Where the court adequately charges the law on every material aspect of the case arising on the evidence and applies the law fairly to the various factual situations presented by the evidence, the charge is sufficient and will not be held error for failure of the court to give instructions on subordinate features of the case, since it is the duty of a party desiring instructions on a subordinate feature * * * to aptly tender a request therefor.'" Mode v. Mode, 8 N.C.App. 209, 174 S.E.2d 30 (1970); 7 Strong, North Carolina Index 2d, Trial, § 33 (1968).
We have reviewed defendant's other assignments of error and find no merit in any of them. In the trial below, we find
No error.
MALLARD, C. J., and HEDRICK, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329865/ | 182 S.E.2d 213 (1971)
11 N.C. App. 708
STATE of North Carolina
v.
William David FIELDS.
No. 7127SC359.
Court of Appeals of North Carolina.
July 14, 1971.
*214 Atty. Gen. Robert Morgan and Staff Atty. Edward L. Eatman, Jr., Raleigh, for the State.
William G. Holland, Gastonia, for defendant appellant.
MALLARD, Chief Judge.
The defendant's contention that the evidence was insufficient to support the finding that the defendant had wilfully and intentionally violated the terms of the probationary judgments is without merit.
Defendant contends that the sentence for non-support should run concurrently with the other sentences. The Attorney General does not disagree. When the defendant was sentenced on the charge of non-support of his minor children, the trial judge did not provide that the sentence was to run consecutively. In the case at bar separate sentences were pronounced on each of the three charges. In each of the sentences the defendant was sentenced to "Gaston County Jail, to be assigned to work under the supervision of the State Department of Correction of North Carolina." We hold that the six-months sentence on the non-support charge runs concurrently with the other sentences. See G.S. § 15-6.2. In State v. Efird, 271 N.C. 730, 157 S.E.2d 538 (1967), the Supreme Court said:
"Separate judgments, each imposing a prison sentence, were pronounced. Each judgment is complete within itself. Absent an order to the contrary, these sentences run concurrently as a matter of law."
We do not interpret the provisions of G.S. § 15-200 (providing that the judge "shall proceed to deal with the case as if there had been no probation or suspension of sentence") as statutory authority for the judge, at a probation revocation hearing, to order the sentence imposed by the trial judge to run consecutively with some other sentence unless the trial judge ordered it at the time the sentence was imposed. To do so would permit the hearing judge to increase the severity of the punishment imposed by the trial judge.
Also in G.S. § 15-200.1, relating to appeals from a probationary or suspended sentence revocation of a court inferior to the superior court, there appears the following language:
"Upon its finding that the conditions were violated, the superior court shall enforce the judgment of the lower court unless the judge finds as a fact that circumstances and conditions surrounding the terms of the probation and the violation thereof have substantially changed, so that enforcement of the judgment of the lower court would not accord justice to the defendant, in which case the judge may modify or revoke the terms of the probationary or suspended sentence in the court's discretion."
*215 In the case at bar there is no finding as a fact by Superior Court Judge Thornburg that circumstances and conditions surrounding the terms of the defendant's probation and the violation thereof have substantially changed so that the enforcement of the judgment of the trial judge would not accord justice to the defendant. There was no factual basis for any change in the sentence imposed by the trial judge. Therefore, it was error for Judge Thornburg, after finding that the conditions were violated, to do anything other than "enforce the judgment of the lower court." We do not reach or decide the question as to whether, under proper findings, the word "modify" in this statute is authority for a judge, after a revocation hearing, to increase the punishment. Suffice to say, in Webster's Third New International Dictionary (1968), "modify" means "to make more temperate and less extreme: lessen the severity of: MODERATE."
Defendant's assignment of error "that it is cruel and unusual punishment for the State of North Carolina not to furnish the defendant, who is an indigent, an appearance bond in the amount set by the Court" is overruled.
The commitment issued in case no. 69-CR-21587 is ordered stricken, and this cause is remanded to the Superior Court of Gaston County with instructions that an order issue directing that the sentence in case no. 69-CR-21587 is to run concurrently with the sentence imposed in the case bearing docket no. 69-CR-18245.
There is no error in the cases bearing docket no. 69-CR-18245 and docket no. 69-CR-17848.
Remanded with directions.
CAMPBELL and HEDRICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329858/ | 227 Ga. 742 (1971)
182 S.E.2d 870
EHLERS et al.
v.
GOLDING; and vice versa.
26522, 26523.
Supreme Court of Georgia.
Argued May 10, 1971.
Decided June 2, 1971.
Rehearing Denied June 17, 1971.
Joseph S. Crespi, C. W. Milam, for appellants.
Reuben A. Garland, Jr., for appellee.
MOBLEY, Presiding Justice.
This appeal is from the denial of summary judgment to the defendants. The cross appeal is from the denial of summary judgment to the plaintiff.
The original complaint was brought by Albert F. Hitt in his *743 individual capacity, seeking relief on behalf of his mother, Mrs. Pearl Walters Hitt. By amendment Albert F. Hitt, as guardian ad litem for Mrs. Pearl Walters Hitt, was added as a party plaintiff. Later Albert F. Hitt withdrew as a party plaintiff in his individual capacity. Albert F. Hitt is now dead, and Mrs. Carol Golding has been appointed as guardian ad litem for Mrs. Pearl Walters Hitt. Mrs. Golding, as guardian ad litem, is therefore substituted as appellee in this court.
The allegations of the complaint material to the present appeal are: In 1959 there was conveyed to Mrs. Hitt a described parcel of realty on West Paces Ferry Road, N. W., in Atlanta, which presently has a market value of $120,000. About 1961 Mrs. Hitt became incompetent as a result of chronic illness, the infirmities of old age, death in the family, and other emotional disturbances. The defendants, Ehlers and Godwin, wrongfully conspired to defraud Mrs. Hitt, knowing that she was incompetent, by making false representations to her that the only way she could avoid losing her home because of delinquent taxes was to sign a loan deed in their favor. They induced her to sign a deed to secure debt to them in exchange for the sum of $7,000. They had gained her confidence, and they falsely pretended to care for her best interest and caused her to believe that the money was loaned to her by reason of friendship alone. She did not know that she was signing a deed to secure debt or the consequences of failing to pay according to its terms. She did not comprehend that she was obligated to pay certain amounts of money on certain dates as provided by the security deed, or she forgot to do so by reason of her infirmities. She did not make the payments, and the defendants foreclosed on the security deed, bidding the property in for themselves. Thereafter Ehlers, a lawyer, exercising undue influence over Mrs. Hitt, an incompetent, induced her to sign a written acknowledgment of tenancy. Thereafter the defendant caused a dispossessory warrant to issue seeking to evict Mrs. Hitt from the property.
The relief demanded was injunction against the dispossessory warrant proceeding, that the security deed executed by Mrs. Hitt to the defendants and the foreclosure sale thereunder be declared null and void, and that the deed executed by the defendants to themelves as attorneys in fact for Mrs. Hitt, under the power of *744 sale in the security deed, be declared null and void.
Both parties moved for summary judgment, and the trial judge denied both motions. The judge has certified the questions made by these rulings for immediate review.
1. The defendants have introduced in evidence on their motion for summary judgment numerous documents, including the application by Mrs. Hitt to them for loan, the deed to secure debt from Mrs. Hitt to them, notices to Mrs. Hitt regarding her delinquencies under the deed, notice of the foreclosure of the security deed, the deed made pursuant to the foreclosure, a contract signed by the defendants and Mrs. Hitt agreeing that she would have an opportunity to redeem her property under terms stated therein, a contract of sale in which the defendants agreed to sell the property to Mrs. Hitt and Albert F. Hitt, demands by the defendants to Mrs. Hitt for past due rent, and affidavits of the defendants.
The evidence for the defendants would indicate that Mrs. Hitt had totally failed to comply with the obligations of any of her contracts, and had prevented the defendants, by unwarranted and repeated litigation, from recovering possession of the property which they had acquired at foreclosure sale. However, all of this evidence fails to eliminate the issue in the case of the alleged incompetency of Mrs. Hitt at the time of the transactions. Some evidence was offered by the guardian ad litem of Mrs. Hitt's incompetency during the time of the transactions involved in the litigation.
Ordinarily the question of mental capacity to contract is a question of fact to be determined by a jury, Jones v. Hogans, 197 Ga. 404, 410 (29 SE2d 568). Summary judgment cannot be granted to the defendants with the issue remaining in the case of the incompetency of Mrs. Hitt to contract, and the trial judge did not err in denying the motion of the defendants.
2. It is contended by the plaintiff that summary judgment should have been granted to her because the defendants have in no way refuted the contentions of the guardian ad litem that the security deed was executed by Mrs. Hitt to them at a time when she was mentally incompetent, that she remained incompetent thereafter, and that they fraudulently induced her to sign the security deed.
*745 The evidence of the mental incompetency of Mrs. Hitt is by affidavit of Albert Hitt, and is based on his opinion formed from related facts and circumstances. While opinion evidence is sufficient to make a jury issue, such evidence alone does not authorize the grant of summary judgment. Ginn v. Morgan, 225 Ga. 192 (167 SE2d 393). The only fraud supported by evidence was the evidence of the incompetency of Mrs. Hitt. The trial judge therefore properly denied the motion for summary judgment on behalf of the plaintiff.
Judgments affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329880/ | 506 S.E.2d 711 (1998)
349 N.C. 243
STATE of North Carolina
v.
Angel GUEVARA a/k/a Jose Rosado.
No. 296A96.
Supreme Court of North Carolina.
November 6, 1998.
*714 Michael F. Easley, Attorney General by William B. Crumpler, Assistant Attorney General, Raleigh, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender by Staples Hughes, Assistant Appellate *715 Defender, Durham, for defendant-appellant.
LAKE, Justice.
The defendant was indicted for first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was tried capitally to a jury at the 6 May 1996 Criminal Session of Superior Court, Johnston County, Judge Knox V. Jenkins, Jr., presiding. The jury found defendant guilty of both charges. Following a capital sentencing proceeding, the jury recommended that defendant be sentenced to death for the first-degree murder conviction. On 20 June 1996, the trial court sentenced defendant to death for the first-degree murder conviction and to a term of 92 to 120 months' imprisonment for the assault with a deadly weapon with intent to kill inflicting serious injury conviction.
At trial, the State presented evidence tending to show that on the afternoon of 2 September 1995, when the temperature was approximately eighty-five degrees, Benjamin Becker, a security officer, discovered an automobile parked outside North Hills Mall in Raleigh, North Carolina, with the doors locked and windows up, and three small children inside. Officer Becker was investigating the situation when defendant approached and started screaming and pointing his fingers in the officer's face. Without provocation, defendant pulled out an approximately four-inch knife and repeatedly lunged towards the unarmed officer. Defendant eventually leaped back into his car and quickly drove away. Officer Becker obtained the license plate number and reported the incident to the Raleigh Police Department. Pursuant to a license plate check, Detective Paula O'Neal determined Jose Rosado of 39 Morehead Drive, West Johnston Mobile Home Park, in Johnston County, to be a suspect. Jose Rosado was also wanted for the felony of false pretense and in an assault case.
On the morning of 11 September 1995, in response to a request from the Raleigh Police Department, two officers with the Johnston County Sheriff's Department, Lieutenant Ronald Medlin and Deputy Paul West, went to a Johnston County mobile home park to verify the address of a man named Jose Rosado. Upon the officers' arrival at 39 Morehead Drive, West Johnston Mobile Home Park, Lieutenant Medlin knocked at the front door for several minutes, but no one responded. A red Mustang convertible and a gray Dodge Ram pickup truck were parked outside. Deputy Medlin asked the dispatcher, Phyllis Edwards, to run a license check on the Mustang, and the dispatcher responded that the automobile was registered to Jose Rosado. Lieutenant Medlin then turned around and saw defendant, accompanied by a two- or three-year-old boy, standing outside the mobile home's back door. The officers asked defendant if he was Jose Rosado, and he informed the officers that Rosado was not there. After being asked for identification, defendant handed Lieutenant Medlin a passport which contained defendant's picture and indicated that he was Angel Guevara. The officers believed that he was Rosado and that he was wanted on an outstanding arrest warrant in North Carolina for the felony of false pretense. The officers further learned from the dispatcher that Rosado was also wanted in New York City under the name of Angel Guevara for the felony of reckless endangerment.
Lieutenant Medlin, standing near defendant's door, used his walkie-talkie to ask the dispatcher to check with New York authorities as to whether defendant was still wanted. Upon confirmation that defendant was still wanted, Lieutenant Medlin stated that they would take him in. Defendant heard Lieutenant Medlin's words and retreated into his home and slammed the back door. Deputy West pushed the door open and entered the mobile home. Lieutenant Medlin did not lose sight of Deputy West at any time. In a matter of seconds, Lieutenant Medlin saw Deputy West throw his right hand up and heard him say, "No, no, no, don't, don't." Lieutenant Medlin heard a shot, and Deputy West fell to the floor facedown, where he died.
Lieutenant Medlin called for assistance and headed towards the door of the mobile home with his gun drawn. He heard another shot and was knocked by the bullet onto the *716 hood of a car which was parked nearby. Lieutenant Medlin could see defendant inside the mobile home and could see Deputy West lying on the floor, his weapon still inside its holster. Lieutenant Medlin, although severely injured, managed to make his way back to his marked sheriff's car. He heard another shot, then saw defendant come out of the mobile home, get into his truck and speed away. Other officers and emergency personnel quickly arrived at the scene. Defendant was arrested several days later in New York City. Lieutenant Medlin sustained three serious wounds to the right side of his chest and, as of the time of trial, had not been able to return to work. An autopsy report indicated that Deputy West sustained a large, fatal bullet wound to the left side of his chest; another gunshot wound to the left groin area; multiple blunt-force injuries to his head; and severe bruises on his head, neck, lower chest area and left shoulder.
In his first assignment of error, defendant contends that the trial court erred in declining to suppress Lieutenant Medlin's eyewitness account of the shooting of Deputy West. Defendant argues that this testimony was the "fruit of the poisonous tree" because Deputy West illegally entered defendant's home without a warrant. We conclude that the trial court correctly declined to suppress Lieutenant Medlin's eyewitness account.
We first note that under the circumstances here presented, it is unnecessary to consider whether Deputy West lawfully entered defendant's home. This Court has held that under the exclusionary rule, "[w]hen evidence is obtained as the result of illegal police conduct, not only should that evidence be suppressed, but all evidence that is the `fruit' of that unlawful conduct should be suppressed." State v. Pope, 333 N.C. 106, 113-14, 423 S.E.2d 740, 744 (1992) (emphasis added). However, this Court has further held that the exclusionary rule "must be discerned in light of the facts in each case. When so considered, it is apparent that the rule does not require the exclusion of evidence obtained after an illegal entry when that evidence is offered to prove the murder of one of the officers making the entry." State v. Miller, 282 N.C. 633, 641, 194 S.E.2d 353, 358 (1973). As we noted in Miller, application of the exclusionary rule to exclude evidence of crimes directed against the person of trespassing officers "would in effect give the victims of illegal searches a license to assault and murder the officers involveda result manifestly unacceptable." Id. Therefore, in the case sub judice, regardless of whether Deputy West lawfully entered defendant's home, Lieutenant Medlin's eyewitness account of the events which transpired subsequent thereto is not barred by application of the exclusionary rule.
Although it is thus unnecessary for this Court to discuss the legality of Deputy West's entry, we note that his entry into defendant's home was indeed lawful due to the presence of exigent circumstances. The United States Supreme Court held in Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), that even when probable cause exists, a suspect may not be arrested in his home without an arrest warrant. However, in the presence of an emergency or dangerous situation described as an "exigent circumstance," officials may lawfully make a warrantless entry into a home to effect an arrest. Id. at 583, 100 S.Ct. at 1378, 63 L.Ed.2d at 648-49. To determine whether exigent circumstances were present in the case sub judice, we must consider the totality of the circumstances. State v. Worsley, 336 N.C. 268, 282, 443 S.E.2d 68, 75 (1994). The United States Supreme Court has indicated that a suspect's fleeing or seeking to escape could be considered an exigent circumstance. Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990). The Supreme Court there stated in reviewing the lower court's decision:
The Minnesota Supreme Court applied essentially the correct standard in determining whether exigent circumstances existed. The court observed that "a warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling."
Id. at 100, 110 S.Ct. at 1690, 109 L.Ed.2d at 95 (quoting State v. Olson, 436 N.W.2d 92, 96 *717 (Minn.1989)). In the case sub judice, the defendant's actions, in suddenly withdrawing into his home and slamming the door, created the appearance that he was fleeing or trying to escape, and this coupled with the presence of a young child suddenly caught in such circumstances created an exigent circumstance justifying Deputy West's entry without a warrant. We note that Deputy West clearly had probable cause to arrest defendant in light of the felony charges pending against defendant in both North Carolina and New York. Accordingly, based on the circumstances in this case, we hold that Deputy West's entry into defendant's home was indeed lawful. We conclude that the trial court correctly declined to suppress Lieutenant Medlin's eyewitness account of the shooting of Deputy West. This assignment of error is overruled.
In his second assignment of error, defendant contends that the trial court committed reversible error by failing to exercise discretion in determining the proper response to a jury request with regard to the testimony of Lieutenant Medlin. We disagree. The record reflects that the trial court adequately complied with N.C.G.S. § 15A-1233(a), which governs the trial court's duty to respond to an inquiry from the jury.
At trial, while the jury was deliberating, the trial court received a paper writing from the jury inquiring about three items: two exhibits, including an enlargement of a 911 transcript, and a reference to "Medlin's testimony." The parties and the trial court discussed the meaning of the jury's request, and the trial court then decided that as to "Medlin's testimony," the jury was referring to a transcript of Lieutenant Medlin's testimony. The trial court stated in this regard, "Well, you know, frequently that's done. All of us know that." Pursuant to N.C.G.S. § 15A-1233(b), the State objected to the exhibits going into the jury room but agreed to the jury's reviewing the exhibits in the courtroom. The jurors were then returned to the courtroom, where the 911 transcript exhibit and one of defendant's exhibits were re-presented to them. The trial court then stated, "We do not have prepared transcripts of the testimony of each witness. It is the duty of the jury to recall the testimony of the witness as it was presented during the trial of the case." The jurors inquired no further with regard to Lieutenant Medlin's testimony and resumed their deliberations.
Defendant now asserts that the jury was not merely requesting a transcript of Lieutenant Medlin's testimony but, alternatively, was requesting the opportunity to have his testimony read back by the court reporter. Defendant thus claims the trial court erred because it did not exercise its discretion in deciding whether to allow the requested review. Assuming arguendo that the jury's inquiry was as defendant contends, we find the trial court properly exercised its discretion in this case. N.C.G.S. § 15A-1233(a) provides:
(a) If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.
N.C.G.S. § 15A-1233(a) (1997). "This statute imposes two duties upon the trial court when it receives a request from the jury to review evidence. First, the court must conduct all jurors to the courtroom. Second, the trial court must exercise its discretion in determining whether to permit requested evidence to be read to or examined by the jury together with other evidence relating to the same factual issue." State v. Ashe, 314 N.C. 28, 34, 331 S.E.2d 652, 657 (1985). This Court has held that "[w]hen no reason is assigned by the court for a ruling which may be made as a matter of discretion ..., the presumption on appeal is that the court made the ruling in the exercise of its discretion." Brittain v. Piedmont Aviation, Inc., 254 N.C. 697, 703, 120 S.E.2d 72, 76 (1961).
*718 In the case sub judice, the defendant has failed to show that the trial court abused its discretion under N.C.G.S. § 15A-1233(a) in declining to provide the jury a review of Lieutenant Medlin's testimony. This Court has held that a trial court does not commit reversible error by denying a jury request to review testimony of a particular witness when "[i]t is clear from [the] record that the trial court was aware of its authority to exercise its discretion and allow the jury to review the expert's testimony." State v. Lee, 335 N.C. 244, 290, 439 S.E.2d 547, 571, cert. denied, 513 U.S. 891, 115 S. Ct. 239, 130 L. Ed. 2d 162 (1994). However, this Court has found reversible error when a trial court's comments indicate that the court misunderstood its authority to allow a review of a witness' testimony or failed to exercise discretion in this regard. For instance, this Court concluded in State v. Lang, 301 N.C. 508, 272 S.E.2d 123 (1980), that the trial court's comment to the jury that "the transcript was not available to them was an indication that [it] did not exercise [its] discretion to decide whether the transcript should have been available under the facts of this case. The denial of the jury's request as a matter of law was error." Id. at 511, 272 S.E.2d at 125. In the case sub judice, the fact that the trial court considered the jury's request and acknowledged that it had the authority to provide the jury with Lieutenant Medlin's testimony is indicated by the trial court's comment that "frequently that's done." The trial court did not say or indicate that it could not make the transcript or review of the testimony available to the jury. The record therefore reflects that the trial court considered, but in its discretion denied, the jury's request in compliance with the statute. Accordingly, this assignment of error is overruled.
In his third assignment of error, defendant contends that the prosecutor was improperly permitted to argue over defendant's objection that the jurors could find that the statutory mitigating circumstances had no mitigating value. Defendant therefore contends that he is entitled to a new sentencing proceeding. We disagree. When read as a whole and viewed in the overall context in which the prosecutor's statements were made, we find that the jurors could not have been led to believe that they could accord the statutory mitigating circumstances no mitigating value.
This Court has held that a prosecutor's statements in jury argument "must be reviewed in the overall context in which they were made and in view of the overall factual circumstances to which they referred." State v. Penland, 343 N.C. 634, 662, 472 S.E.2d 734, 750 (1996), cert. denied, ___ U.S. ___, 117 S. Ct. 781, 136 L. Ed. 2d 725 (1997). In this case, during jury argument, the prosecutor addressed statutory and nonstatutory circumstances. In concluding his argument, the prosecutor stated:
The bottom line is I don't see how any of these mitigating factors have any mitigating value whatsoever ... with what you are talking about. Do they reduce the moral culpability of what was done to Paul West? Now, you will next move on to weighing the aggravating and mitigating factors. And even if one or more of you should find that all of the mitigating factors not only exist but also have mitigating value, I contend to you that there is no way the mitigating factors outweigh the aggravating factors that the State has proven to you beyond a reasonable doubt.
In order for a prosecutor's argument to constitute prejudicial error, the "comments must have so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, 40, cert. denied, 513 U.S. 1046, 115 S. Ct. 642, 130 L. Ed. 2d 547 (1994). Clearly, the prosecutor did not categorically tell the jurors that they could not give the statutory mitigating circumstances any mitigating value. In fact, the prosecutor went on to argue that if one or more jurors found the circumstances to "have mitigating value," the mitigators did not outweigh the aggravators.
Even assuming arguendo that the prosecutor's remarks did not fully and correctly state the law in this respect, these statements were certainly clarified by other means. First, the trial court correctly instructed the jury on the law regarding mitigating circumstances from the pattern jury *719 instructions, making a clear distinction between statutory and nonstatutory mitigating circumstances. Further, the Issues and Recommendation as to Punishment form made this distinction clear. Second, the trial court repeatedly and clearly instructed the jurors to follow the law as it was given to them. Finally, both prosecutors and one of defendant's attorneys, in their closing arguments at the penalty phase, reiterated to the jurors their duty to follow the law as given to them by the trial court. We presume that juries follow the trial court's instructions. State v. Richardson, 346 N.C. 520, 538, 488 S.E.2d 148, 158 (1997), cert. denied, ___ U.S. ___, 118 S. Ct. 710, 239 L. Ed. 2d 652 (1998); State v. Johnson, 341 N.C. 104, 115, 459 S.E.2d 246, 252 (1995). We therefore conclude that in light of the arguments overall and the trial court's correct instructions on mitigating circumstances, the jury could not have been misled and in fact followed these instructions. Accordingly, this assignment of error is overruled.
In his fourth assignment of error, defendant contends that because Deputy West's death occurred during his illegal entry into defendant's residence, the trial court incorrectly submitted the aggravating circumstance that the murder was committed against a law enforcement officer "while engaged in the performance of his official duties." N.C.G.S. § 15A-2000(e)(8) (1997). We disagree. First, as we have noted above, Deputy West's entry was not illegal. Further, we reiterate that we need not address the legality of Deputy West's entry into defendant's mobile home because even if Deputy West improperly entered defendant's home, defendant had no right to use deadly force under the circumstances of this situation. N.C.G.S. § 15A-401(f) provides in part:
Use of Deadly Weapon or Deadly Force to Resist Arrest.
(1) A person is not justified in using a deadly weapon or deadly force to resist an arrest by a law-enforcement officer using reasonable force, when the person knows or has reason to know that the officer is a law-enforcement officer and that the officer is effecting or attempting to effect an arrest.
(2) The fact that the arrest was not authorized under this section is no defense to an otherwise valid criminal charge arising out of the use of such deadly weapon or deadly force.
N.C.G.S. § 15A-401(f)(1), (2) (1997). Therefore, in accordance with N.C.G.S. § 15A-401(f), even assuming arguendo that Deputy West in some way improperly performed his official duties, defendant was still not justified in using deadly force against a law enforcement officer attempting to effect an arrest. The (e)(8) aggravating circumstance was thus properly submitted to the jury. This assignment of error is overruled.
In defendant's fifth assignment of error, he further contends that the trial court committed reversible error, depriving defendant of due process of law, by failing to exclude additional portions of the prosecutor's closing argument for death during the sentencing phase. Defendant first claims in this assignment of error that the prosecutor's victim-impact argumentunsworn assertions that Deputy West "was a good father, husband, son, brother and friend"was unsupported by the evidence and improperly considered. We do not agree with this assessment.
In State v. Moody, 345 N.C. 563, 481 S.E.2d 629, cert. denied, ___ U.S.___, 118 S. Ct. 185, 139 L. Ed. 2d 125 (1997), this Court noted the United States Supreme Court held that
"if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed."
Id. at 573, 481 S.E.2d at 633 (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609, 115 L. Ed. 2d 720, 736 (1991)). Victim-impact statements may be admitted at a capital sentencing proceeding unless the evidence "is so unduly prejudicial that it *720 renders the trial fundamentally unfair." Payne v. Tennessee, 501 U.S. at 825, 111 S.Ct. at 2608, 115 L.Ed.2d at 735. "Victim impact evidence is admissible in capital sentencing proceedings." State v. Robinson, 339 N.C. 263, 278, 451 S.E.2d 196, 205 (1994), cert. denied, 515 U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818 (1995). This Court has held that the prosecution is allowed "some latitude in fleshing out the humanity of the victim so long as it does not go too far." State v. Reeves, 337 N.C. 700, 723, 448 S.E.2d 802, 812 (1994), cert. denied, 514 U.S. 1114, 115 S. Ct. 1971, 131 L. Ed. 2d 860 (1995).
A review of the record reflects that the prosecutor's comments that Deputy West "was a good father, son, brother and friend" were in fact supported by the evidence. In her testimony, the wife of Deputy West spoke about him in reference to his family and identified a guardian angel pin which he wore on his uniform and a photograph of him. From Mrs. West's testimony, the photographs and the angel pin, the prosecutor emphasized to the jury that Deputy West was a family man. The prosecutor also referred to Lieutenant Medlin's testimony and to Deputy West's first words to the defendant, "hey good buddy," to suggest to the jury that these words reflected the kind of man Deputy West was.
Although defendant failed to object during the prosecutor's closing argument, he now contends that the prosecutor improperly stated, "I think you can tell from the size of the crowd which had attended most of this trial," to suggest that Deputy West was a family man. Although the number of people attending the trial is an indicator of community interest and possibly esteem, this alone was clearly not evidence as to what kind of man Deputy West was. We nevertheless conclude that this limited comment, particularly in light of the other evidence, was not so grossly improper as to require the trial court to intervene ex mero motu.
Defendant additionally contends that the prosecutor's victim-impact argument went too far. The prosecutor argued:
The second reason I say this trial is coming at a most appropriate time is the passage of this past Sunday's Father's Day. And on that very day immediately after winning the NBA championship and being recognized perhaps as the greatest basketball player to ever live, Michael Jordan felt pain, not joy. Why? ... Because he wept like a baby.
The trial court sustained defendant's objection to this comment. Although this argument was improper, it was not so grossly improper as to result in a denial of due process. It was, in essence, a meaningless, irrelevant aside, having nothing to do with the defendant or the trial. Thus, we conclude this comment did not "stray so far from the bounds of propriety as to impede the defendant's right to a fair trial." State v. Davis, 305 N.C. 400, 422, 290 S.E.2d 574, 587 (1982). Further, the trial court properly sustained defendant's objection which "advised the jurors that they should not consider the statement." State v. Larry, 345 N.C. 497, 527, 481 S.E.2d 907, 924, cert. denied, ___ U.S. ___, 118 S. Ct. 304, 139 L. Ed. 2d 234 (1997).
Defendant next argues that the prosecutor used the lyrics of a song to improperly suggest that the cards were procedurally stacked against the State at the sentencing phase and to exploit or impugn defendant's right to counsel. The prosecutor stated:
And I can think of no better expression of this sentiment than the words of a song, a requiem, if you will, that I want to leave with you.
Somebody killed a policeman today and a part of America died. A piece of country that he swore to protect will be buried right by his side. The suspect who shot him must stand up in court with counsel demanding his rights. While the young widowed mother must work for her kids and cry a many a long, long night.
We do not conclude that the lyrics of this song suggest that the cards were procedurally stacked against the State or that they in any way implicated or impugned defendant's right to counsel. Even assuming arguendo that these lyrics could be interpreted as defendant contends, this argument is clearly not so unduly prejudicial as to render the *721 sentencing phase of the trial fundamentally unfair. Trial counsel is allowed wide latitude in argument to the jury and may argue all of the evidence which has been presented as well as reasonable inferences which arise therefrom. State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986). We further emphasize that
statements contained in closing arguments to the jury are not to be placed in isolation or taken out of context on appeal. Instead, on appeal we must give consideration to the context in which the remarks were made and the overall factual circumstances to which they referred. Further, it must be remembered that the prosecutor in a capital case has a duty to strenuously pursue the goal of persuading the jury that the facts of the particular case at hand warrant imposition of the death penalty.
Green, 336 N.C. at 188, 443 S.E.2d at 41. This Court has also noted that although counsel is allowed wide latitude in both the guilt-innocence and sentencing phases of trial, "`the foci of the arguments in the two phases are significantly different, and rhetoric that might be prejudicially improper in the guilt phase is acceptable in the sentencing phase.'" State v. Bishop, 343 N.C. 518, 552, 472 S.E.2d 842, 860 (1996) (quoting State v. Artis, 325 N.C. 278, 324, 384 S.E.2d 470, 496 (1989), sentence vacated on other grounds, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990)), cert. denied, ___ U.S. ___, 117 S. Ct. 779, 136 L. Ed. 2d 723 (1997). Thus, based on these principles, we hold that the trial court did not err in failing to exclude ex mero motu these comments by the prosecutor.
Finally, defendant contends the prosecutor improperly argued general deterrence. The prosecutor argued:
State's exhibit number 9, it is not pleasant to look at it. And I know undoubtedly you feel that you've seen it enough, but that's the way Paul West was left and his plea was answered. You see unless the killing of a law enforcement officer is dealt with the utmost seriousness, then the disrespect for law and order that is inherent in that despicable act is encouraged.
We conclude that this argument in overall context did not constitute a general deterrence argument but merely focused the jury's attention on the seriousness of the crime and the importance of the jury's duty. We have previously held that the prosecutor is allowed to argue the seriousness of the crime. State v. Barrett, 343 N.C. 164, 181, 469 S.E.2d 888, 898, cert. denied, ___ U.S. ___, 117 S. Ct. 369, 136 L. Ed. 2d 259 (1996); see State v. Jones, 339 N.C. 114, 159, 451 S.E.2d 826, 850 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873 (1995); State v. Artis, 325 N.C. at 329, 384 S.E.2d at 499.
We conclude that all these statements complained of did not result in a denial of "`that fundamental fairness essential to the very concept of justice.'" Donnelly v. De Christoforo, 416 U.S. 637, 642, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431, 436 (1974) (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S. Ct. 280, 290, 86 L. Ed. 166, 180 (1941)). We hold that all of defendant's complaints under this assignment of error are not so unduly prejudicial so as to deny defendant fundamental fairness in the sentencing proceeding.
PRESERVATION ISSUES
Defendant, in his sixth assignment of error, asserts that the trial court violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in not allowing him the opportunity for allocution before the jury. This Court has previously ruled that it is not error for the trial court in a capital case to disallow allocution. State v. Wright, 342 N.C. 179, 463 S.E.2d 388 (1995). Upon consideration of defendant's argument and authorities cited, we find no compelling reason for this Court to overrule our prior holding on this issue. This assignment of error is overruled.
In his seventh assignment of error, defendant asserts that the trial court committed federal constitutional error in submitting to the jury the (e)(11) course of conduct aggravating circumstance, in that the jury did not mark the verdict sheet and so did not convict defendant under the felony murder rule. See N.C.G.S. § 15A-2000(e)(11). We *722 first note that the jury in this case additionally convicted defendant of assault with a deadly weapon with intent to kill inflicting serious injury. Furthermore, this Court has held contrary to defendant's position in State v. McCollum, 334 N.C. 208, 433 S.E.2d 144 (1993), cert. denied, 512 U.S. 1254, 114 S. Ct. 2784, 129 L. Ed. 2d 895 (1994). In the case sub judice, as in McCollum, the jury failed to answer both questions on the verdict sheet with respect to whether defendant was guilty on the basis of malice, premeditation and deliberation and under the felony murder rule. The jury's failure to follow the trial court's instructions to give a "yes" or "no" answer to both questions does not indicate that the jury found defendant blameless under the felony murder rule. Id. at 220-22, 433 S.E.2d at 150-51. The jury's affirmative response that it did find defendant guilty of first-degree murder under one theory, on the basis of malice, premeditation and deliberation, does not indicate that the jury rejected conviction under another theory, in this case the felony murder rule. See id. This assignment of error is without merit.
Next, in his eighth assignment of error, defendant contends that the trial court committed federal constitutional error in its use of the word "may" in sentencing Issues Three and Four. Defendant acknowledges that this Court has previously decided this issue adversely to defendant's position and upheld the constitutionality of this instruction. State v. Lee, 335 N.C. at 286-87, 439 S.E.2d at 569-70. We find no basis for reversing our prior holding in this regard. Accordingly, this assignment of error is overruled.
In his ninth assignment of error, defendant contends that the trial court erred by instructing the jury on nonstatutory mitigating circumstances in a way which allowed the jurors to reject such circumstances on the basis that they had no mitigating value. As defendant acknowledges, this Court has previously found this argument to be without merit. It is well established under North Carolina law that the instruction given by the trial court in this regard is correct and not in violation of either our state or federal Constitution. State v. Womble, 343 N.C. 667, 694, 473 S.E.2d 291, 307 (1996), cert. denied, ___ U.S. ___, 117 S. Ct. 775, 136 L. Ed. 2d 719 (1997). As we have previously stated, this instruction does not limit or prevent the jury's consideration of any relevant evidence in mitigation but merely requires the jury to find both the existence of the nonstatutory circumstance and that it has mitigating value. State v. Stephens, 347 N.C. 352, 366, 493 S.E.2d 435, 444 (1997), cert. denied, ___ U.S. ___, 119 S. Ct. 85, 142 L. Ed. 2d 66 (1998). We therefore reject this assignment of error.
In his tenth assignment of error, defendant argues that the trial court erred by instructing the jury that it must be satisfied that any mitigating circumstance exists. This Court has repeatedly rejected this argument. State v. Payne, 337 N.C. 505, 531-33, 448 S.E.2d 93, 108-09 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1405, 131 L. Ed. 2d 292 (1995). We have consistently held that "[i]t is the responsibility of the defendant to go forward with evidence that tends to show the existence of a given mitigating circumstance and to prove its existence to the satisfaction of the jury." State v. Hutchins, 303 N.C. 321, 356, 279 S.E.2d 788, 809 (1981); see also State v. Green, 336 N.C. at 185, 443 S.E.2d at 39; State v. Brown, 306 N.C. 151, 178, 293 S.E.2d 569, 586-87, cert. denied, 459 U.S. 1080, 103 S. Ct. 503, 74 L. Ed. 2d 642 (1982). We find no compelling reason to reconsider our prior holding in this regard. Accordingly, this assignment of error is overruled.
PROPORTIONALITY REVIEW
Having found no error in either the guilt/innocence phase of defendant's trial or the capital sentencing proceeding, we are required by statute to review the record and determine (1) whether the evidence supports the aggravating circumstances found by the jury; (2) whether passion, prejudice or "any other arbitrary factor" influenced the imposition of the death sentence; and (3) whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. N.C.G.S. § 15A-2000(d)(2). After thoroughly reviewing the record, transcript and briefs in the present case, we conclude that the *723 record fully supports the aggravating circumstances found by the jury. Further, we find no indication that the sentence of death in this case was imposed under the influence of passion, prejudice or any other arbitrary factor. We therefore turn to our final statutory duty of proportionality review.
One purpose of proportionality review is to guard "against the capricious or random imposition of the death penalty." State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137 (1980). Another "is to eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury." State v. Holden, 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2835, 100 L. Ed. 2d 935 (1988). In conducting proportionality review, we compare this case to others in the pool, as defined in State v. Williams, 308 N.C. 47, 79-80, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 177 (1983), and State v. Bacon, 337 N.C. 66, 106-07, 446 S.E.2d 542, 563-64 (1994), cert. denied, 513 U.S. 1159, 115 S. Ct. 1120, 130 L. Ed. 2d 1083 (1995), that "are roughly similar with regard to the crime and the defendant." State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 105 S. Ct. 2368, 86 L. Ed. 2d 267 (1985). Whether the death penalty is disproportionate "ultimately rest[s] upon the `experienced judgments' of the members of this Court." State v. Green, 336 N.C. at 198, 443 S.E.2d at 47.
The sentence of death in this case is not excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. N.C.G.S. § 15A-2000(d)(2). The jury in this case found both aggravating circumstances that were submitted. First, the jury specifically found that the murder was committed against a law enforcement officer engaged in the performance of his official duties. N.C.G.S. § 15A-2000(e)(8). Second, the jury found that the murder was part of a course of conduct in which defendant engaged and which included a crime of violence against another person. N.C.G.S. § 15A-2000(e)(11). As Justice (now Chief Justice) Mitchell succinctly stated in State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984):
The murder of a law enforcement officer engaged in the performance of his official duties differs in kind and not merely in degree from other murders. When in the performance of his duties, a law enforcement officer is the representative of the public and a symbol of the rule of law. The murder of a law enforcement officer engaged in the performance of his duties in the truest sense strikes a blow at the entire publicthe body politicand is a direct attack upon the rule of law which must prevail if our society as we know it is to survive.
Id. at 488, 319 S.E.2d at 177 (Mitchell, J., concurring in part and dissenting in part). The United States Supreme Court has also recognized the importance of protecting our nation's police officers. In Roberts v. Louisiana, 431 U.S. 633, 97 S. Ct. 1993, 52 L. Ed. 2d 637 (1977), the Supreme Court stated: "There is a special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property." Id. at 636, 97 S.Ct. at 1995, 52 L.Ed.2d at 641.
This Court has found death sentences disproportionate in seven cases: State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, ___ U.S. ___, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997), and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163; State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).
We find the instant case distinguishable from each of these cases. None of these cases, with the exception of State v. Hill, involved the first-degree murder of a police officer engaged in the performance of his official duties. The brutal murder in the case sub judice was also part of a course of conduct which included another violent crime, the severe wounding of another police *724 officer. This case is distinguishable from Hill, where the defendant was also convicted of the first-degree murder of a police officer and sentenced to death. There, the defendant was convicted of first-degree murder for killing a police officer with the officer's own gun after the two struggled. This Court vacated the sentence of death because of speculative evidence about what the defendant was doing prior to his encounter with the officer and lack of evidence as to who drew the murder weapon out of the officer's holster. We find the present case distinguishable from Hill in several respects. First, in the case sub judice, defendant stood in his mobile home and used his own rifle to kill Deputy West, including the firing of shots at him while the officer lay on the floor facedown, his weapon still inside its holster. Second, defendant shot another officer, Lieutenant Medlin, from a distance, severely wounding him. Third, after shooting both officers, defendant made no effort to assist the officers but instead leapt into his truck and quickly fled. Fourth, the jury convicted defendant of first-degree murder under the theory of premeditation and deliberation and found the existence of two aggravating circumstances: (1) the murder was committed against a law enforcement officer in the performance of his official duties, the (e)(8) aggravating circumstance; and (2) the murder was part of a course of conduct including other violent crimes, the (e)(11) aggravating circumstance. "The course of conduct circumstance is often present in cases where the jury imposes death instead of life imprisonment." State v. Miller, 339 N.C. 663, 694, 455 S.E.2d 137, 154, cert. denied, 516 U.S. 893, 116 S. Ct. 242, 133 L. Ed. 2d 169 (1995).
This case is similar to cases in which we have found the death penalty proportionate. In State v. Harden, 344 N.C. 542, 476 S.E.2d 658 (1996), cert. denied, ___ U.S. ___, 117 S. Ct. 1321, 137 L. Ed. 2d 483 (1997), we affirmed a sentence of death where the defendant shot two police officers who were trying to arrest him. The jury there found the same two aggravating circumstances as found here. Similarly, in State v. Page, 346 N.C. 689, 488 S.E.2d 225 (1997), cert. denied, ___ U.S. ___, 118 S. Ct. 710, 139 L. Ed. 2d 651 (1998), we affirmed a sentence of death where the jury found the same two aggravators. We thus conclude that this case is similar to cases in which we have found the sentence of death proportionate and not similar to any case where we have found the death penalty disproportionate.
We hold that defendant received a fair trial and capital sentencing proceeding, free of prejudicial error.
NO ERROR.
WYNN, J., did not participate in the consideration or decision of this case.
FRYE, Justice, concurring.
I agree that defendant received a fair trial and capital sentencing proceeding, free of prejudicial error, and that defendant's sentence of death is not disproportionate.
I agree with the majority that "in the case sub judice, regardless of whether Deputy West lawfully entered defendant's home, Lieutenant Medlin's eyewitness account of the events which transpired subsequent thereto is not barred by application of the exclusionary rule." State v. Guevara, 349 N.C. 243, 250, 506 S.E.2d 711, 716 (1998). However, I also agree with the majority that "it is unnecessary for this Court to discuss the legality of Deputy West's entry." Id. Accordingly, I would neither discuss nor decide this issue.
WHICHARD, J., joins in this concurring opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1755232/ | 891 So. 2d 680 (2005)
STATE ex rel. Sylvester MEAD
v.
STATE of Louisiana.
No. 2004-KH-0030.
Supreme Court of Louisiana.
January 7, 2005.
Writ granted in part; otherwise denied; case remanded to the district court. The district court is ordered to appoint counsel for purposes of holding a hearing at which it will determine whether relator is entitled to an out-of-time appeal of his resentence under the rule of State v. Counterman, 475 So. 2d 336, 340 (La.1985) (out-of-time appeal may be appropriate in cases in which either "the defendant was not substantially notified at sentencing of his right to appeal or those in which the defendant attorney was at fault in failing to file or perfect a timely appeal.") In all other respects the application is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276141/ | 142 S.W.3d 846 (2004)
David RYAN, Appellant,
v.
David RADEMACHER and Violet Rademacher, Respondents.
No. ED 83718.
Missouri Court of Appeals, Eastern District, Division Two.
July 6, 2004.
Motion for Rehearing and/or Transfer Denied August 17, 2004.
Application for Transfer Denied September 28, 2004.
*848 Richard A. Barry, III, Kevin J. Dolley, St. Louis, MO, for appellant.
Daniel Wilke, Charles C. Schwartz, Jr., St. Louis, MO, for respondents.
Motion for Rehearing and/or Transfer to Supreme Court Denied August 17, 2004.
OPINION
GLENN A. NORTON, Presiding Judge.
David Ryan appeals the summary judgment denying his premises liability claims. We affirm in part and reverse in part.
I. BACKGROUND
While investigating a report of a strong smell of ether in the Rademachers' neighborhood, Ryan and other police officers went to the Rademachers' home. Ryan asked Violet Rademacher if she knew of anything on the property that could cause injury to him or the other officers, such as anhydrous ammonia or other chemicals used to manufacture methamphetamine. Mrs. Rademacher replied that there were not, but that any chemicals that were found belonged to her husband, David Rademacher, who was not home. She gave the officers permission to search her home, vehicles and outbuildings. She then accompanied Ryan to an outbuilding and opened the outbuilding's door. Ryan asked her if there was anything in the outbuilding that could cause him harm and she *849 replied that there was not. Ryan was examining a container located in the outbuilding when the lid to the container popped open and a gas-like spray of anhydrous ammonia was emitted. The substance damaged Ryan's lungs and respiratory system. Ryan filed suit against the Rademachers asserting claims based on premises liability. The trial court granted, without explanation, the Rademachers' joint motion for summary judgment. Ryan appeals.
II. DISCUSSION
The propriety of summary judgment is a question law, and our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for determining the propriety of summary judgment on appeal are no different than those used at the trial level. Id. Although we view the record and construe all inferences favorably to the non-movant, facts set forth in support of the summary judgment motion are taken as true unless contradicted by the non-movant's response. Id. at 376, 382-83.
A defendant may establish a right to judgment by showing (1) facts that negate any one of the elements of the plaintiff's claim, (2) that the plaintiff cannot produce evidence sufficient to allow the trier of fact to find the existence of any one of the plaintiff's elements, or (3) "that there is no genuine dispute as to the existence of each of the facts necessary to support the [defendant's] properly-pleaded affirmative defense." Id. at 381. Once the defendant has met this burden, the plaintiff must show by reference to the record that "one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed." Id. A "genuine issue" exists where the record contains competent materials that demonstrate "two plausible, but contradictory, accounts of the essential facts." Id. at 382.
Ryan argues that there are genuine issues of material fact concerning his status as a licensee or an invitee and the Rademachers' knowledge of a dangerous condition in the outbuilding.
A. Licensee or Invitee
The duty owed to a plaintiff in a premises liability action generally depends upon his status at the time of the injury. Cook v. Smith, 33 S.W.3d 548, 552 (Mo. App. W.D.2000). A trespasser who enters the land without the possessor's permission is owed no duty of care. Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. banc 1995). A licensee is one privileged to enter or remain on land only by virtue of the possessor's consent. Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993). A possessor of land is subject to liability for bodily injury caused to a licensee by a natural or artificial condition thereon if, but only if, he: (a) knows of the condition and realizes that it involves an unreasonable risk to the licensee and has reason to believe that the licensee will not discover the condition or realize the risk and (b) invites or permits the licensee to enter or remain upon the land without exercising reasonable care to make the condition reasonably safe or warn the licensee of the condition and the risk. Cook, 33 S.W.3d at 552 (citing Restatement of Torts section 342 (1934)). An invitee, on the other hand, is one who the possessor invites onto the premises with the expectation of a material benefit from the visit. Adams v. Badgett, 114 S.W.3d 432, 437 (Mo.App. E.D.2003). A possessor of land owes a duty to an invitee to exercise reasonable and ordinary care to make the premises safe. Morrison v. St. Luke's Health Corp., 929 S.W.2d 898, 903 (Mo.App. E.D.1996).
*850 Ryan contends that he was an invitee with respect to Mrs. Rademacher because she expected the material benefit of receiving leniency from the police in exchange for her cooperation. Nothing in the record indicates that Mrs. Rademacher invited the officers onto her property expecting to receive leniency. Rather, the record shows that she invited them on the property under the guise that she did not know of any chemicals associated with methamphetamine when, in fact, she was aware of the chemicals. Mrs. Rademacher was attempting to shield herself from criminal liability, not gain leniency. Moreover, contrary to Ryan's argument, the public benefit of police work does not elevate Ryan to the status of an invitee with respect to the Rademachers. See Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 446-47 (1955), overruled on other grounds by Wells v. Goforth, 443 S.W.2d 155 (Mo. banc 1969).
There is no genuine dispute that Ryan was not an invitee of the Rademachers. Rather, because he was privileged to enter and remain on the property solely because of Mrs. Rademacher's consent, Ryan was a licensee with respect to her.
As to Mr. Rademacher, however, Ryan was neither an invitee nor a licensee because Mr. Rademacher did not invite or permit Ryan to enter or remain on the land. See Cook, 33 S.W.3d at 552. Ryan contends that Mr. Rademacher invited and permitted him to be on the property through his agent, Mrs. Rademacher. Neither spouse, however, is empowered to act as agent for the other merely because of the marital relationship. Bartlow-Hope Electrical Corp. v. Herzog, 692 S.W.2d 404, 406 (Mo.App. W.D.1985). For an actual agency relationship to exist between Mr. and Mrs. Rademacher, Mrs. Rademacher must possess the power to alter legal relations between Mr. Rademacher and third persons. See State ex rel. Ford Motor Co. v. Bacon, 63 S.W.3d 641, 642 (Mo. banc 2002). Mrs. Rademacher's action could also bind Mr. Rademacher if he cloaked her with apparent authority to act on his behalf. See Cohn v. Dwyer, 959 S.W.2d 839, 843 (Mo.App. E.D.1997). Whether she had apparent authority to act on his behalf depends on whether the facts and circumstances surrounding her consent to allow Ryan on the premises gave rise to a reasonable and logical inference that Mr. Rademacher empowered her to act for him. See id.
Ryan has pointed to no evidence in the record to indicate that Mrs. Rademacher had the power to alter legal relations between Mr. Rademacher and third parties. Likewise, Ryan has identified no facts or circumstances in the record that would have allowed Ryan to reasonably and logically infer that Mrs. Rademacher was acting on her husband's behalf. Because Ryan was neither an invitee nor licensee with respect to Mr. Rademacher, Mr. Rademacher owed him no duty of care and summary judgment in Mr. Rademacher's favor was appropriate.[1]
B. Knowledge
Under the licensee standard, Ryan contends that there are genuine issues of fact regarding Mrs. Rademacher's knowledge of the anhydrous ammonia. Mrs. Rademacher responds that there was no evidence that she knew that anhydrous *851 ammonia was being stored in a manner that would make it unreasonably dangerous. She contends that anhydrous ammonia has lawful and safe uses, such as for farming, and that this anhydrous ammonia only became dangerous because it was improperly stored.
The record reveals, however, that Mrs. Rademacher knew that the anhydrous ammonia was not being used for farming, but for the manufacture of methamphetamine. The Rademachers concede that the production of methamphetamine poses particular dangers due to the chemicals used during the production. Mr. Rademacher told Mrs. Rademacher that he was attempting to manufacture methamphetamine in the outbuilding with the use of anhydrous ammonia and not to allow their daughter to go near the outbuilding. This evidence creates a dispute as to whether Mrs. Rademacher knew that the anhydrous ammonia located in the outbuilding involved an unreasonable risk to Ryan. Therefore, summary judgment in favor of Mrs. Rademacher was inappropriate.
All points relating to summary judgment against Mr. Rademacher are denied, and all points relating to summary judgment against Mrs. Rademacher are granted, except as to Ryan's status as an invitee, which is denied. Ryan's point regarding application of the firefighter's rule is moot.[2]
III. CONCLUSION
The judgment is affirmed except as to Violet Rademacher, and that portion of the judgment is reversed. The case is remanded for further proceedings consistent with this opinion.
KATHIANNE KNAUP CRANE, J. and MARY K. HOFF, J., concurring.
NOTES
[1] No Missouri case has addressed whether an individual injured while on property with the consent of one owner may hold liable another owner who has not consented (express or implied) to the individual's presence. Anderson v. Accurso presents a situation factually similar to this case, but this question was not presented and the court did not discuss it. 899 S.W.2d 938 (Mo.App. W.D.1995). Therefore, Anderson is not dispositive here.
[2] We have already determined that genuine issues of material fact exist with respect to Mrs. Rademacher, and reverse summary judgment as to her. As to Mr. Rademacher, summary judgment is appropriate because he owed Ryan no duty of care, regardless of whether the firefighter's rule applies. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/613736/ | United States Court of Appeals
F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
____________
No. 10-1262 September Term 2011
USTC-24762-06
Filed On: September 15, 2011
UTAM, Ltd. and DDM Management, Inc., Tax
Matters Partner,
Appellees
v.
Commissioner of Internal Revenue Service,
Appellant
BEFORE: Sentelle, Chief Judge, Tatel, Circuit Judge, and Randolph, Senior
Circuit Judge
ORDER
Upon consideration of appellees’ petition for panel rehearing, it is
ORDERED that the petition be denied. It is
FURTHER ORDERED, on the court’s own motion, that the opinion filed June 21,
2011, be amended as follows:
Insert on p. 2, line 11, after “(D.C. Cir. June 21, 2011)”: (as amended Aug. 18,
2011).
Insert on p. 6, line 3, after “(D.C. Cir. June 21, 2011)”: (as amended Aug. 18, 2011).
Delete on p. 9, footnote 7:
UTAM argues that even if § 6229(d) can be used to toll a partner’s
open § 6501 period, it did not do so here because the FPAA adjusted only
nonpartnership items and was therefore invalid. UTAM’s argument rests on
certain stipulations the parties made in the Tax Court for purposes of
-2-
litigating the statute of limitations issue. But it was not until this appeal that
UTAM linked the issue of the FPAA’s validity with the statute of limitations
issue. The stipulations do not bind the IRS with respect to the underlying
issue of the FPAA’s validity. We therefore have no reason to decide whether
an invalid notice of final partnership administration adjustment may toll the
statutory assessment period.
Insert in lieu thereof this revised footnote 7:
UTAM argues that even if § 6229(d) can be used to toll a partner’s
open § 6501 period, it did not do so here because the FPAA adjusted only
nonpartnership items and was therefore invalid. UTAM’s argument rests on
certain factual stipulations the parties made in the Tax Court for purposes of
litigating the statute of limitations issue. But there was no stipulation that the
FPAA was “invalid,” as UTAM claims. The FPAA gave notice of the
Commissioner’s determination of adjustments to partnership items. See,
e.g., Clovis I v. Comm’r, 88 T.C. 980, 982 (1987). These included sham
transactions and their attendant incomes, gains, losses, and deductions. The
nature of the adjustments in the FPAA remained the same regardless of the
limited stipulations; as the stipulations made clear, whether the evidence
ultimately would support the adjustments was to be determined at trial. We
therefore have no reason to decide whether an “invalid” notice of final
partnership administration adjustment may toll the statutory assessment
period.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Jennifer M. Clark
Deputy Clerk | 01-03-2023 | 09-16-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1329972/ | 123 Ga. App. 649 (1971)
182 S.E.2d 126
REEVES
v.
ECHOTA COTTON MILLS; and vice versa.
45890, 45891.
Court of Appeals of Georgia.
Submitted January 5, 1971.
Decided April 14, 1971.
*651 Mitchell & Mitchell, Warren N. Coppedge, Jr., for appellant.
Chance & Maddox, R. F. Chance, for appellee.
BELL, Chief Judge.
1. Under Code Ann. § 114-405 the formula for computing compensation is 60 percent of the difference between the claimant's average weekly wages prior to the injury and the average weekly wages he is able to earn thereafter, but not more than $39. A claimant for workmen's compensation benefits is not entitled to compensation for a period in which he is capable of earning more than his average weekly wages prior to injury. Liberty Mut. Ins. Co. v. Goins, 96 Ga. App. 887, 891 (101 SE2d 920). Disability in the Workmen's Compensation Law means impairment of earning capacity. St. Paul Fire &c. Ins. Co. v. Harris, 118 Ga. App. 352 (163 SE2d 833). Applying these rules to the facts of this case, the claimant, even though, because of his partial disability, he is working longer hours at a lesser hourly rate, nonetheless had an earning capacity at the time of hearing in excess of his average weekly wages prior to the original injury. He is not entitled by law to any differential compensation under Code Ann. § 114-405. The stipulation of the parties cannot change the law. The judgment of the superior court affirming the award of the deputy director must be affirmed on the main appeal.
2. An agreement fixing compensation between the employer and employee, approved by the Workmen's Compensation Board, and not appealed from, is res judicata as to matters determined, and the parties are precluded from thereafter contradicting or challenging the matters agreed upon. Aetna Ins. Co. v. Gipson, 104 Ga. App. 108, 110 (121 SE2d 256). The approved compensation agreement between the parties following the original injury is res judicata of the fact that his average weekly wage was $108 as recited in the agreement. Under the doctrine of res judicata the deputy director correctly refused to permit the employer on the change of condition hearing to contradict or challenge the matter of the claimant's average weekly wage prior to the injury which formed the basis for the compensation awarded to claimant for total incapacity.
*652 3. It was not error for the deputy director to refuse to consider evidence that claimant and employer were discussing a lump sum settlement prior to the employer's request for a change of condition hearing. Evidence of discussion of settlement does not have any materiality or relevancy to the issues of this case.
4. The deputy director found as facts that claimant underwent a physical change in condition on January 2, 1970, and from that date forward his physical condition permitted his resumption of work insofar as work would not involve bending or heavy lifting; that from the January date until April 6, 1970, claimant remained totally incapacitated for work with defendant (in spite of his then improved physical condition) due to a misunderstanding of instructions by the treating physician and later from a condition precedent to re-employment attached by defendant, to wit: dismissal of counsel by claimant; and that because of these circumstances and due to the likelihood of claimant's re-employment immediately upon solution of a misunderstanding precipitated by management, the deputy found it unreasonable that claimant should have sought or accepted other employment during the interval from January 2, 1970, to but not including April 6, 1970. The employer was directed to continue payments for this time span for total incapacity to work pursuant to the terms of the original approved agreement. The findings concerning the physician's instructions and the dismissal of counsel are supported by claimant's testimony. The defendant does not quarrel with that part of the award which requires payment of compensation for total incapacity from January 2, 1970, to at least about February 18, 1970, when, according to claimant's testimony, he was offered re-employment on the condition he discharge his attorney. Although a representative of the employer denied that this condition was made a part of the offer, there is some evidence to support the finding. Where a claimant has a period of unemployment resulting from the injury and due to no fault of the claimant, he should be awarded compensation for total disability during this period. Liberty Mut. Ins. Co. v. Goins, 96 Ga. App. 887, 890, supra. It is apparent that claimant's retaining counsel was brought about by his injury. He cannot be held to be at fault for not returning to work for the defendant by accepting this improper condition of *653 re-employment. The retention of counsel is a basic right of any citizen, and to hold that under these circumstances he was not entitled to continuation of compensation payments, even though he may have been able to obtain employment elsewhere would be to condone a coercive practice. This court will not do that. The employer further contends that claimant is only entitled to compensation under the previous agreement to the date of application for hearing on a change of condition, February 25, 1970. While the filing for a hearing on a change of condition will permit the employer to stop the payment of compensation, this does not preclude the award of continuing payments under a prior approved agreement during the period at issue after hearing and adjudication. Employers Mut. Liab. Ins. Co. v. Derwael, 105 Ga. App. 54 (123 SE2d 345).
Judgment affirmed on the main appeal and on the cross appeal. Pannell and Deen, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329981/ | 256 S.C. 410 (1971)
182 S.E.2d 744
Charles E. ROBINSON, Jr., Individually, and representing the taxpayers of the City of Greenville, South Carolina, Appellant,
v.
R. Cooper WHITE, Jr., as Mayor; James H. Simkins, Joe F. Jordan, R.E. Gregory, Max M. Heller, Joseph R. Bryson, Jr., and Wayne Wuestenberg, constituting the members of the Greenville City Council; the City of Greenville, a municipal corporation; and Daniel R. McLeod, as Attorney General of the State of South Carolina, Respondents.
19259
Supreme Court of South Carolina.
July 28, 1971.
*411 Robert A. Clay, Esq., of Greenville, for the Plaintiff-Appellant.
W.H. Arnold, Esq., of Greenville, Sinkler, Gibbs, Simons & Guerard, of Charleston, and Timothy G. Quinn, Asst. Atty. Gen., of Columbia, for the Respondents.
July 28, 1971.
LITTLEJOHN, Justice.
This declaratory judgment action was instituted by the plaintiff on his own behalf and representing the taxpayers of the City of Greenville to enjoin the pledging of moneys derived from business license taxes, in the City of Greenville, *412 for securing revenue bonds to be issued by the City for the purpose of constructing off-street parking facilities. The defendants are the Mayor and City Council of the City of Greenville and the Attorney General of the State of South Carolina.
In his complaint the plaintiff alleges that the Mayor and City Council of Greenville propose to issue $5,500,000.00 of revenue bonds of the City of Greenville in accordance with the Revenue Bond Act (Sections 59-361 to 59-415, inclusive, Code of Laws of South Carolina, 1962, as amended).
In addition, plaintiff alleges that the defendants, Mayor and City Council, also intend to utilize the "Off-Street Parking Facilities Act" (Sections 59-566 to 59-566.5, inclusive, Code of Laws of South Carolina, 1962, as amended) (hereinafter referred to as the "Act"), which authorizes a municipality to pledge as additional security for revenue bonds issued, to build off-street parking facilities, so much of the moneys derived from business license taxes as may be necessary to pay the principal of and interest on the revenue bonds, to the extent that revenues from on-street and off-street parking are insufficient to meet said principal and interest payments.
Plaintiff alleges that in the event moneys from business license taxes are used to pay the revenue bonds, such moneys will be unavailable for the payment of the general expenses of the City to which they are now applied, with the result that additional moneys from property taxes will be necessary to pay the expenses of the City. It is plaintiff's position that to the extent that such moneys from business license taxes are used, the bonds will constitute "bonded debt" within the meaning of Article VIII, Section 7, of the South Carolina Constitution, and that therefore Section 59-566.5 (1A) of the Act is unconstitutional in that it allows the City to incur bonded debt without a favorable vote as to the creation thereof by the qualified electors of the City. Plaintiff also alleges that Section 59-566.5 (1A) is unconstitutional *413 in that it allows the City to pledge revenues derived from business license taxes to an unrelated project.
Defendants in their Answer admit that the City proposes to issue the aforesaid revenue bonds, and intends to utilize the authorization embodied in the Act to pledge as additional security for the bonds, such moneys as may be necessary from the City's business license taxes. Defendants deny such a pledge constitutes bonded debt within the meaning of Article VIII, Section 7, of the South Carolina Constitutional and deny that Section 59-566.5 (1A) is unconstitutional as being in conflict with Article VIII, Section 7, or by virtue of its allowing a pledge of revenues to an unrelated project.
The lower court found "that the Off-Street Parking Facilities Act is constitutional in that the pledge of business license taxes authorized thereby does not violate Article VIII, Section 7 of the South Carolina Constitution." The injunction sought was denied. We reverse.
The relevant portions of the "Off-Street Parking Facilities Act" are as follows:
"§ 59-566.5. Further powers of municipalities as to bonds.
"(1) Provide that any revenue bonds issued under this article shall be payable, both as to principal and interest, from such portions of the revenues of either or both of its off-street parking facilities and its on-street parking facilities as the municipality shall prescribe in the proceedings adopted in the issuance of bonds pursuant to this article but any pledge with respect to revenues derived from on-street parking facilities shall reserve the right in the municipality to discontinue the use of on-street parking facilities whenever traffic conditions so require;
"(1A) Additionally secure the payment of the principal and interest of bonds issued pursuant to this article by a pledge of so much of the moneys as the municipality shall derive from business license taxes as may be necessary to pay the principal of and interest on any bonds issued under *414 this article, and covenant and agree that all powers granted to such municipality to impose business license taxes shall be exercised to such degree as will enable the municipality to discharge the covenant herein first authorized; * * *."
Under the terms of Section 59-566.5 (1) municipalities, including the City of Greenville, are authorized to borrow money by issuing revenue bonds for the purpose of constructing off-street parking facilities, and to pledge for the payment of bonds, revenue derived from the operation of the facilities. That part of the law is not challenged. Section 59-566.5 (1A) authorizes the city to pledge as additional security for the bond moneys borrowed, the business license taxes to the extent that revenues from operation of the facilities constructed are not sufficient to meet the payment. This part of the law is challenged.
The relevant portion of Article VIII, Section 7 of the Constitution of South Carolina is as follows:
"Article VIII, § 7. Bonded debt; certificates of indebtedness; sinking fund; refunding bonded debt; * * * No city or town in this State shall hereafter incur any bonded debt which, including existing bonded indebtedness, shall exceed eight per centum of the assessed value of the taxable property therein, and no such debt shall be created without submitting the question as to the creation thereof to the qualified electors of such city or town, as provided in this Constitution for such special elections; and unless a majority of such electors voting on the question shall be in favor of creating such further bonded debt, none shall be created: * * *"
The question which the court is called upon to answer is phrased in appellant's brief as follows:
"Is Section 59-566.5 (1A), South Carolina Code of Laws, 1962, as amended, unconstitutional as an attempt to authorize the creation of `bonded indebtedness' by a city without compliance with the provisions of Article VIII, Section 7, of the South Carolina Constitution?"
*415 If the code section is in conflict with the constitutional provision, bonds may not be issued until and unless the question is submitted to the qualified electors and approved by them in an appropriate election. The resolution of this one question hinges on a determination as to whether the pledge of business license tax revenue authorized by the Act and admittedly intended to be utilized by the City, in fact, or as a matter of law, constitutes "bonded debt" as that term is used in Article VIII, Section 7 of the Constitution of South Carolina.
It has been stipulated: (1) that the city proposes to issue $5,500,000.00 in revenue bonds, to the payment of which will be pledged the revenue derived from both on-street and off-street parking, including revenues from the facilities to be built with the bond money; (2) that the city proposes to pledge moneys derived from business license tax; (3) that on-street and off-street parking facilities will not be sufficient to pay the principal and interest, and to the exent that such revenues are not sufficient, principal and interest will be paid from revenues derived from business license taxes; (4) that, by estimation, in the first year of operation of the facilities approximately $313,000.00 of the business license taxes will be required in addition to the parking facilities revenue; (5) that in the fifth year of operation, approximately $154,000.00 will be required, and in the tenth year of operation, approximately $75,000.00 will be required; (6) and that shortly thereafter revenues derived from business license taxes will no longer be required to supplement revenues from parking facilities.
We first consider the purpose of the constitutional provision. It is designed to prevent city officials from borrowing money which taxpayers must repay without having first obtained their consent. The provision is a limitation on the authority of city government officials. It protects the city's financial structure, but more especially, it protects the taxpayers who form the city and must repay debts incurred.
*416 The purpose of the constitutional limitation set forth in Article VIII, Section 7 is the same as the limitation set forth in Article X, Section 11. In the case of Briggs v. Greenville County, 137 S.C. 288, 135 S.E. 153 (1926), that purpose is described as follows:
"The underlying purpose of the constitutional provisions concerning the creation of state debt was that they should serve as a limit of taxation as a protection to taxpayers, and especially those whose property might be subjected to taxation."
If business license taxes may be pledged to the payment of revenue bonds as proposed, without consideration of the constitutional provision, then all municipal revenue derived from any source other than ad valorem taxes on property might likewise be pledged. If all such revenue was pledged the entire burden of current expenses would fall on the ad valorem taxpayer and the property owner would be called upon to carry the full burden of general fund obligations.
It would appear from a hurried calculation that over the first ten-year period more than one and one-half million dollars would be required from business license taxes, over and above revenues usable from parking lot facilities. It necessarily follows that general revenue funds presently swelled by collections of business license taxes would be depleted to that extent. If Greenville city government is to continue to provide facilities and services to its people, it is inescapable that such revenue would have to be replaced by an ad valorem tax or some other source of revenue. The other alternate is that services and facilities must be curtailed.
Obviously this court has no way of knowing with positive certainty what effect this plan of financing would have on the taxpayers of Greenville, but it is not realistic to assume that the budget would be reduced to the extent of $313,000.00 the first year, or corresponding amounts the subsequent years.
This proposal is unlike those wherein a city, at the time it creates a debt, creates the fund to pay it. Here, the city *417 proposes to use funds which would be otherwise available for general purposes.
It is the contention of the appellant that to the extent unrelated funds (business license tax) are used to service the bonds, the general funds of the city will be depleted and the city authorities will then look to the taxpayers to replenish the general fund. It is argued that the end result is that the taxpayer is burdened with payment of the bonds just as fully as if they had been issued as general obligation bonds in an amount equal to the unrelated funds pledged. We agree.
Neither the taxpayer nor this court can predict with exactness how the city council would solve the problem created by the depletion of funds, but we think there is a very real danger that in the final analysis it will be the taxpayer who bears the additional financial burden which would result. Whether the problem be solved by adding a new source of revenue, or increasing ad valorem taxes, or increasing other taxes already in existence, or by curtailing services, the people bear the brunt of the bond issue. The fact that, as a bookkeeping operation, the debt payments are made from the business license tax instead of from general funds does not alter the fact that the taxpayer foots the bill. Approval of the plan would effectively deprive the taxpayers of the constitutional protection afforded by Article VIII, Section 7. We think that the plan of financing and the pledging of the business license tax violates the spirit, if not the very letter, of the constitutional provision. It permits the city to do by indirection that which it could not do by direction. Under the stipulated facts, the constitutional guaranty is jeopardized with sufficient certainty to necessitate and require the intervention of this court. The taxpayer cannot wait until after the bonds have been issued, and until such time as it is positively proven that his rights have been violated, to seek relief from the court.
It is common knowledge that in city financing substantial revenues are derived from such collections as licenses, permits, *418 fines, forfeitures, sewer charges, and other similar sources. It is also common knowledge that property or ad valorem taxes are then added as needed to make up the difference to balance the budget.
At this time the plaintiff cannot with positive certainty prove that the ad valorem tax will be used to make up the depleted revenue and such proof is not required. We are convinced that the debt to the extent of the depleted revenue will fall at least indirectly upon people who pay taxes of various kinds to the city. It will fall upon such a large segment of the people as to effectually be the obligation of taxpayers generally.
This is a case of first impression in this state involving Article VIII, Section 7 and municipal financing. The cases involving Article X, Section 11 and state financing are of considerable interest but not controlling under the facts here.
In the case of City of Trinidad v. Haxby, et al., 136 Colo. 168, 315 P. (2d) 204 (1957), the Supreme Court of Colorado had before it a situation quite similar to the one we must now determine. The city of Trinidad proposed to issue bonds to build a hospital and to pledge all net revenue from operation of the hospital, together with such part of the city's cigarette taxes, parking meter fees and unpledged revenue of its electric light and power system, as would be sufficient to pay the bonds and interest. The question arose as to whether such an obligation created a debt in the constitutional sense. That court said:
"In substance, the argument of Trinidad is that any and all municipal revenue derived from any source other than ad valorem taxes on property can be pledged for the payment of specific obligations contracted by the city, and that said obligations thus secured by first liens on specific revenues do not create 'debts' within the meaning of the constitutional prohibition. It does not require the wisdom of Solomon to point out that if the provision be so construed it would be possible to pledge all revenue other than property *419 taxes to financing 'projects and facilities' which may, or may not, be demanded by the inhabitants of a city and that the property taxes would then be called upon to carry the full burden of general fund obligations. Such taxes, already burdensome, would soon become confiscatory."
We conclude that Section 59-566.5 (1A) violates the provisions of Article VIII, Section 7 of the Constitution of South Carolina. It deprives the taxpayer of the protection afforded by the constitutional limitation.
Reversed.
MOSS, C.J., and LEWIS, J., concur.
BUSSEY and BRAILSFORD, JJ., dissent.
BUSSEY, Justice (dissenting):
The authorities cited in the order of the lower court and in the briefs of counsel clearly and fully support the judgment below, which should be affirmed. None of these pertinent authorities is discussed or attempted to be distinguished in the majority opinion.
For at least a half a century the terms "bonded debt" and "bonded indebtedness", contained in Article VIII, Sec. 7, and Article X, Sec. 5 of the Constitution have been consistently defined in numerous decisions by this Court. These terms signify a primary obligation of the particular political subdivision involved, secured primarily by an ad valorem tax levied upon all of the taxable property therein. Among other cases see: Jackson v. Breeland, 103 S.C. 184, 88 S.E. 128, 130; Bolton v. Wharton, 163 S.C. 242, 161 S.E. 454; Thomson v. Christopher, 141 S.C. 92, 139 S.E. 178; Barnwell v. Matthews, 132 S.C. 314, 128 S.E. 712; Briggs v. Greenville County, 137 S.C. 288, 135 S.E. 153.
The bonds in the instant case are secured primarily by revenues from the parking facilities; secondarily by a portion of the business license fees, and not at all by an ad valorem tax levied upon any taxable property. It clearly follows that these obligations do not constitute a "bonded debt" *420 within the purview of the Constitution, as such term has been consistently defined by this Court. Our prior definition is too firmly and well established to be currently discarded without even discussion.
Appellant argues that the diversion of a portion of the business license fees to help defray the cost of the bonds converts such into a "bonded debt" because of the possible contingency of an increase in ad valorem taxes resulting from such diversion. This contention is, I think, fully met and disposed of by the rationale of the opinion in the Briggs case and the various other cases therein cited and analyzed. The Colorado case of City of Trinidad v. Haxby, 136 Colo. 168, 315 P. (2d) 204, cited in the majority opinion, is not at all persuasive. Historically, there appear to be quite fundamental differences between the pertinent laws of that state and those of this state. But, even if such case be regarded as persuasive, it should not be followed without regard to, or discussion of, our own decisions.
BRAILSFORD, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329985/ | 123 Ga. App. 785 (1971)
182 S.E.2d 525
KENDRICK et al.
v.
THE STATE.
46045.
Court of Appeals of Georgia.
Argued March 1, 1971.
Decided April 15, 1971.
Rehearing Denied May 18, 1971.
*786 William V. Hall, Sr., Alford Wall, Ronald J. Armstrong, H. A. Stephens, Jr., for appellants.
Lewis R. Slaton, District Attorney, Tony H. Hight, for appellee.
DEEN, Judge.
1. (a) The indictment follows the statutory language of Code Ann. § 26-3001 (a) in charging that the defendants did "in a clandestine manner [conspire to] intentionally overhear, transmit and record and attempt to overhear, transmit and record the private conversation of one [Darracott] which originated ... in a [stated] private place." This is followed in the same count by a charge in the language of Code Ann. § 26-3001 (d) that the defendants "did intentionally and secretly intercept, by the use of a device, instrument and apparatus, to wit: a telephone, the contents of a message sent by telephone" which is followed by a specific description of the acts charged: that defendants disconnected the regular telephone service of number 876-2224 in the Tenth Street Exchange and then connected the wires of this number to the connections on number 872-7779 in the exchange which was the number of Darracott located in his home at No. One Tenth Street, "so that when the said Darracott's telephone would ring the telephone of accused would ring indicating a caller on the said Darracott's telephone which due to said connection the conversation on *787 Darracott's telephone could be overheard on defendant's telephone." There is no proof that anyone actually listened to Darracott's telephone conversations by being alerted thereto through the ringing of a bell and picking up the receiver and thus intercepting the conversation. There is proof that the telephone was in working order when the service man left the apartment, so that after the jumper wire was installed at the branch exchange this would have been the result had anybody in the defendants' apartment picked up the phone and listened, provided the phone remained connected as installed or provided that, after being disconnected, it was reconnected to the line in any way (directly or through an actuator) so that it could have received the electrical impulses. There is proof that Kendrick had tapes containing Darracott's conversation over the telephone in his apartment, and that such conversations would have been taped by removing the telephone and installing a tape recorder and actuator in its stead so that when Darracott's telephone rang the tape recorder would automatically turn on, and there is expert testimony that such a set-up would have produced the tapes Kendrick played for the witness and also that the telephone could have been attached so that both would work at the same time. When the apartment was searched no recorder was found and the telephone had been removed and improperly reattached so that it served no function. Additionally, there is opinion testimony that "telephone" means not just the installed set which was State Exhibit 9 but the whole telephone system or that part of it which is used in transmitting electrical impulses and converting them into other forms of energy such as sound or electromagnetic tape in the case of a recording device. It is obvious that the language following subsection (d) regarding a telephone refers to and limits the act of interception referred to therein to one committed by the use of a telephone receiver with a bell, allowing a person alerted by the bell in Hart's apartment to pick up the receiver and listen in on the conversation in Darracott's apartment. It is also true that the act of listening to a telephone receiver is different from recording the conversation as by means of a tape recorder. The defendant may well be correct in arguing that the method of interception set out in detail (being alerted to a conversation by the ringing of the bell in the defendant's apartment, *788 picking up the receiver and listening in) was not proved beyond a reasonable doubt, and that such failure of proof constitutes a fatal variance in regard to this allegation. "If the indictment sets out the offense as done in a particular way the proof must show it so, or there will be a variance." Fulford v. State, 50 Ga. 591, 593. And see Allen v. State, 106 Ga. App. 761 (128 SE2d 549). Subsection (a), however, charging the defendants with recording the conversation was sufficiently alleged (Code § 27-701; Benefield v. State, 86 Ga. App. 285 (71 SE2d 760)) and was supported by proof that the recordings were in fact made, although the telephone might or might not have been connected up and used at the same time. "The fact that the accusation charges, in a single count, the commission of the offense in several of the methods prescribed by the statute does not make it subject to general demurrer, none of the methods alleged being repugnant to the other. The offense could have been established by proof of any one of the prohibited acts." Gower v. State, 71 Ga. App. 127, 130 (30 SE2d 298). Since the telephone receiving set installed in the apartment does not "record," the fact that subsection (d) was not proved as alleged has no effect on the allegations as to recording under subsection (a) of the statute penalizing eavesdropping.
(b) It is further contended that the verdict cannot be supported under allegations of the indictment that the defendants on trial "did conspire with some person who is to the grand jurors unknown." However, the crime could not have been committed had a jumper wire not been placed connecting the two telephone lines on the frame within the telephone branch office which serviced them both, and there is not the slightest evidence that either of these defendants had access to that location. The procedure was one in common use by the employees of the telephone company for lawful purposes so that the inference would be that some unknown employee was a co-conspirator with the defendants. Further, Mrs. Darracott testified that she paid the defendant Kendrick money in cash which he told her he would give to someone who would tap the phone, and that he did not reveal the name of this person to her. Although verdicts have been overturned where the indictment alleged the defendant conspired with persons unknown and it transpired that such persons were in fact known to the *789 grand jury (see Martin v. State, 115 Ga. 255 (41 SE 576)) a reading of the cases shows that the common law reasoning back of this rule is the protection of the defendant from being again indicted for the same offense. The indictment here has the required specificity, and the proof shows that the identity of at least one of the persons primarily involved in the crime is unknown. The fact that the witness who employed one of the defendants was known and appeared before the grand jury does not vitiate the conviction. See also 5 Wharton's Criminal Law and Procedure, § 2064, p. 214 et seq.
2. Whether or not questions of personal protection and the welfare of minor children sufficiently establish a waiver of the right of privacy during proceedings leading to divorce (see Bodrey v. Cape, 120 Ga. App. 859 (172 SE2d 643)) so as to be the equivalent of an implied consent which will obviate a tort action (Code § 105-1803), eavesdropping is also a crime against the State. One who for a consideration engages in such criminal activity cannot base a right to acquittal on the fact that the motives of the person desiring the information are extenuative in nature. Involvement in a divorce action is not the equivalent of implied consent under Code Ann. § 26-3006 to have one's telephone line tapped.
3. That the court in giving a requested instruction charged that the defendants enter upon the trial with the presumption of innocence in their favor, which presumption remains until the jury is satisfied of their guilt "beyond a reasonable doubt" instead of "beyond all reasonable doubt" is no ground for reversal. The court in fact charged on reasonable doubt on seven different occasions and did in fact use the term "all reasonable doubt" on some of them. "Failure to charge in the exact language requested, where the charge substantially covered the same principle, is no longer a ground for a new trial under Code Ann. § 70-207 as reenacted." Hardwick v. Price, 114 Ga. App. 817 (3) (152 SE2d 905).
4. Whether or not the husband in the divorce action had committed acts as contended by the wife had no relevancy or bearing on the trial of these defendants for the offense of wiretapping. The trial judge may properly restrict the cross examination of a witness to matters relevant to the issue. Quinton v. Peck, 195 Ga. 299 (5) (24 SE2d 36).
*790 5. Code § 38-1703 provides: "In all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. The court shall take proper care to effect this object as far as practicable and convenient, but no mere irregularity shall exclude the witness." The right of sequestration is absolute. Massey v. State, 220 Ga. 883, 893 (142 SE2d 832). It is mandatory for the court to accede to a request for sequestration of witnesses, subject to the "sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case, and where it appears that in making the exception to the rule the fair [trial] rights of the opposite party are secured or the impairment of the efficiency of the court avoided by allowing a deputy or other officials, who are witnesses, to remain in the courtroom." Poultryland, Inc. v. Anderson, 200 Ga. 549, 562 (37 SE2d 785). Here it is contended that the first exception to this rule allowed the judge, in his sound discretion, to permit Russell Parker, division security manager for the Atlanta area of Southern Bell Telephone Company and a stipulated expert electrical engineer and security man, to remain in the courtroom without being called as the first witness upon the assistant district attorney's statement in his place that he needed him to sit at the table with him on the trial of the case. Parker testified to his own activities between the time of his notification of the discovery of the jumper wire connecting the telephone circuits and the final identification of Kendrick and Hart; gave opinion evidence as to the method used in eavesdropping, and expert testimony on the operation of the system. Since much of the State's case depended on the proper presentation of expert testimony on the method of operation of the system and the branch office and on the complexities of electronic eavesdropping, it is fairly obvious why the State wanted an expert sitting at its table. It then becomes a question of whether the fair trial rights of the defendants were in any way impinged upon by the witness' presence. He was not, as in Hunter v. State, 105 Ga. App. 564 (125 SE2d 85) used for rebuttal testimony. His testimony does not appear to have been influenced (nor could it have been influenced) by the testimony of other witnesses for the State. Harm *791 will not be absolutely presumed from his presence alone, as in Montos v. State, 212 Ga. 764 (95 SE2d 792) where the witness' presence was not requested under any such exception to the rule as would invoke the discretion of the trial court. We find no error. Justice v. State, 213 Ga. 166 (2) (97 SE2d 569); Tanner v. State, 213 Ga. 820 (2) (102 SE2d 176).
Judgment affirmed. Bell, C. J., and Pannell, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330022/ | 301 S.E.2d 776 (1983)
STATE of West Virginia
v.
Henry BIAS.
No. 15636.
Supreme Court of Appeals of West Virginia.
March 25, 1983.
*778 S. Clark Woodroe & Fredrick S. Wilkerson, Asst. Attys. Gen., Charleston, for appellee.
Bradley J. Pyles, Crandall, Pyles & Crandall, Logan, for appellant.
HARSHBARGER, Justice:
Bias' two-day 1980 Logan County jury trial resulted in a conviction for first degree murder without recommendation of mercy. His appeal claims ineffective assistance of counsel and erroneous instructions about the burden of proof for insanity defenses.
Lennie Sawyers, defendant's mother, was brutally murdered on October 23, 1968 in her home. She had multiple stab wounds and had been beaten with two skillets. Bias, a Cleveland resident, was visiting her, and they were alone in the house after 7:00 a.m., but when a neighbor discovered Ms. Sawyers' mutilated body at about 10:30 a.m. that day, Bias was nowhere to be found. At 9:30 that evening he walked into the local YMCA. The Logan state police arrested him there, brought him to headquarters, questioned him, and he gave a written statement indicating that he and his mother quarrelled, and that then he blacked out for hours.
Counsel was appointed the next day, and Bias was indicted on January 13, 1969. His attorney requested a psychological examination and the two physicians who saw him found him psychotic, and recommended commitment. The court committed him to Weston State Hospital on March 25, 1969. In April, 1969 a staff doctor at Weston found him to be delusional and suffering from chronic undifferentiated schizophrenia. A clinical psychologist also found him to be delusional and chronically psychotic. The staff met about him in May, 1969 and found him psychotic with chronic undifferentiated schizophrenia. By September he was improved, and his psychosis was in remission. He was returned to Logan County's jail.
In January, 1970, the jailer asked the court to recheck defendant's mental condition. He had attempted suicide and was extremely disruptive. The court had him tested, and two doctors and another clinical psychologist recommended commitment. On March 13, 1970, the court found him *779 incompetent, and committed him to Huntington State Hospital. He escaped four times before February 14, 1972, thrice returning to the hospital voluntarily. On February 14, 1972, he left again and did not return until he was extradited from Indiana in April, 1973.
A new attorney was appointed for him in September, 1973, another mental evaluation was ordered, and he was again found incompetent and recommitted to Huntington State Hospital on February 5, 1974. He escaped on March 12 before he was evaluated. Five and a half years later, in November, 1979, he walked into the Logan County Circuit Clerk's office and asked for money he believed the clerk was holding for him. The clerk recognized his name and alerted the police, who arrested him. Another attorney was appointed, another psychiatric examination was requested, and he was committed to Weston State Hospital for a twenty-day evaluation. A physician and psychiatrist found him competent to stand trial, and after a competency hearing in March, 1980, he was tried on April 30 and May 1, 1980.
A further investigation into his history of mental illness revealed that in December, 1965, while in jail on a peace bond, he exhibited bizarre behavior. The jailer asked the court to have him evaluated. The 1965 evaluation by two psychiatrists at Huntington State Hospital found him mentally unbalanced, nervous, and in need of treatment. The next week he was evaluated by a staff psychologist who noted he suffered strong delusions, had an I.Q. of 72, and was psychotic. He walked out of the hospital on December 21, 1965.
We are very cautious about finding that counsel has been ineffective. State v. Baker, W.Va., 287 S.E.2d 497, 502 (1982).
19. In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law
....
21. Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused. Syllabus Points 19 and 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
See also State v. Riser, W.Va., 294 S.E.2d 461 (1982).
When this case was tried in 1980, our law on criminal trials for defendants whose pretrial psychiatric examinations revealed they were not criminally responsible for their acts was stated in State ex rel. Walton v. Casey, W.Va., 258 S.E.2d 114 (1979), Syllabus Points 1 and 2:[1]
*780 1. A criminal trial is unwarranted when pre-trial psychiatric examinations clearly reveal by a preponderance of the evidence, that the accused at the time the crime was committed, was not criminally responsible for his acts.
2. W.Va.Code, 27-6A-2(c) requires a court to dismiss criminal charges against a defendant if he is found incompetent to stand trial after six months' court-ordered hospitalization plus an additional three months if requested by the hospital staff. The dismissal may be stayed ten days to allow civil commitment proceedings to be instituted pursuant to Code, 27-5-1.
Bias' pretrial psychiatric examinations were at least as strong as Walton's. Clearly a preponderance of the evidence indicated lack of criminal responsibility.
In 1965 when Bias was examined by court order[2] at the jailer's request, Dr. Starcher and Dr. Rowan found that he was mentally ill and a danger to himself and to others, requiring immediate hospitalization. Ms. O.P. Mortison, a clinical psychologist who evaluated him at that time, noted that Bias had very strong delusions, including one that John F. Kennedy bought and paid $25,000 for some property and deeded it to him and his daughter, and that Kennedy also put $30,000 in a trust fund for them. She concluded:
Henry Bias is mildly mentally deficient and probably always has been. He also is psychotic. His condition is somewhat like a paranoid state, but it may be a chronic undifferentiated schizophrenia with some paranoid and depressed features.
In March, 1969, Dr. Kessel reported:
It is my opinion that this man is mentally incapaciated [sic]. I feel he has a deep seeded [sic] mental and emotional problem and that he low-edd [sic] mental function and has a psychopathic personality. I feel that it would be wise for this man to be hospitalized in a maximum security mental hospital where psychometric evaluation and psychiatric observation and treatment can be obtained before a final opinion be rendered.
Dr. Aviles, a staff physician at Weston State Hospital, tentatively diagnosed Bias on April 29, 1969 as "Schizophrenia, Chronic Undifferentiated Type. (Rule out Schizophrenia, Paranoid Type)" with a "Guarded to poor" prognosis.
In May, 1969, Arnold Nelson of Psychological Services at Weston discussed Bias' delusions, and concluded:
The lack of affect coupled with paranoid projections, is strongly indicative of a psychotic level of adjustment, rather than neurotic defensive procedures.
Mr. Bias needs psychiatric care to the fullest extent. He is marginally in contact with reality at the moment and should therefore be open to the therapeutic milieu. His only steady occupation has been as a coal miner; thus, we may wish to refer him to Rehabilitation for vocational development. This patient should be kept in the Security Building for further treatment, but he will probably have to be returned to court for sentencing. The chronic appearance of his illness would lead me to believe that he was quite out of touch with reality when he probably killed his mother. While we will be unable to determine the validity of the legal charge, I believe his history and current functioning are strongly indicative of a chronic schizophrenic adjustment. He has apparently been deteriorating for a number of years and will consequently require some period of time for readjustment.
*781 DIAGNOSTIC IMPRESSION: Schizophrenic Reaction, Paranoid or Chronic Undifferentiated Type.
A May 6, 1969 staff meeting report signed by Acting Superintendent, Dr. Lazaro, stated:
The patient is very suspicious. He thinks people talk about plots against him. Patient also has a history of having been at Huntington State Hospital while at the county jail there. Intellectual functioning reveals the patient is functioning within the average range. We feel this patient is psychotic and his judgment is rather impaired.
DIAGNOSIS: Schizophrenic Reaction, Chronic Undifferentiated Type 295.90.
RECOMMENDATION: Further hospitalization.
After hospitalization through September, 1969, Dr. Larumbe, Staff Physician, wrote to the court:
We feel that this patient was psychotic, suffering from a schizophrenic reaction, of a paranoid type. He is now out of his depression and is in good remission. He is no longer psychotic and is mentally competent to stand trial. You may call for Mr. Bias at your earliest convenience, at which time we will require an order for his release.
Dr. Albert Recio, psychiatrist, diagnosed and recommended in March, 1970:
DIAGNOSIS: Taking into consideration the distortion of thought content, disorganization of personality, misinterpretation of reality, the diagnosis is: Schizophrenia Paranoid Type, 295.3, Paranoid Personality Disorder, 301.0, and Explosive Personality Disorder, 301.3.
RECOMMENDATION: I recommend that this patient be placed in a maximum security ward at the State Mental Hospital, for total supervision and total rehabilitation.
John W. McBride, Clinical Psychologist, interviewed Bias at the same time and reported:
It is the initial psychological impression that this is an emotionally unstable personality with paranoid and sociopathic traits who is presently suffering from a gross stress reaction of near-psychotic proportions which tends to best fit the Ganser syndrome. Psychologically, his needs appear to be for total supervision and total rehabilitation, and I recommend that placement in the security ward in a state mental hospital be considered.
Dr. Brewer concurred in Dr. Recio's report at that time.
When reevaluated in December, 1973, a report by Dr. Kessel and Dr. Recio concluded:
DIAGNOSIS: Take into consideration his past psychiatric history and his behavior in the jail. It is the opinion of this office that the same diagnoses as stated in 1970 be applied today. It was impossible to establish any useful rapport which could indicate any change of his past mental disorder. The patient was extremely uncooperative, evasive, and refused to answer any questions asked by Dr. Kessel or myself in any way.
RECOMMENDATION: The patient manifested anxiety and aggressive tendencies, but there was no indication of any overt psychosis. It is the opinion of this office that the patient's mental condition is so deteriorated, his comprehension is nill. His insight and judgment are nill, and he would be unable to stand trial. This patient should be considered extremely dangerous; therefore, it is the recommendation of this office that he be confined to maximum security establishment such as Spencer State Hospital.
Little of this psychiatric evidence was made available to the court and jury. We believe that any competent criminal attorney would have attempted to bring this information to a court's and jury's attention. See Scott v. Mohn, W.Va., 268 S.E.2d 117, 120 (point 5) (1980).
We cannot imagine a clearer case for an insanity defense. Fourteen professionals (physicians, psychiatrists, and psychologists) had examined Bias by court order. It was the unanimous opinion of all these professionals that he was mentally ill, *782 and an overwhelming majority found him to be psychotic. Defense counsel subpoenaed two psychologists and two medical doctors,[3] one of whom did not appear at the trial. Medical records from Weston State Hospital, where Bias was committed by court order, were not subpoenaed. Huntington State hospital records were subpoenaed but not offered as evidence.[4] Three court orders finding Bias incompetent to stand trial and committing him to state hospitals were not offered. The two jailers who moved the court to examine Bias were not questioned or called as witnesses. His former attorneys[5] who moved that he be mentally examined were neither called nor consulted. Defense counsel did not hire a psychiatrist to give an opinion about Bias' mental condition over the years and the likelihood that he was psychotic at the time of the offense, and was incapable of conforming his behavior to the law, or of knowing right from wrong.
The lawyer tried to present an insanity defense, but his verve and commitment to it can be garnered from his opening statement to the jury:
The evidence will also show that Mr. Bias has had a long record of mental illness. The record will show based upon reports from Huntington State Hospital that my client has been in and out of mental institutions since at least 1965 and not necessarily by virtue of him wanting to check in. He has been committed by Mental Hygiene Commissioners and by the Court before.
So I anticipate a possible minor defense that may be brought up in this case is insanity. Record, page 236 (emphasis ours).
Defense counsel had so inadequately prepared this insanity defense that he did not subpoena defense medical and psychological witnesses until the first day of trial, requiring them to attend the next day.
Defendant is entitled to accurate instructions on the burden of proof in insanity cases, and the disposition of a defendant found insane.
"There exists in the trial of an accused a presumption of sanity. However, should the accused offer evidence that he was insane, the presumption of sanity disappears and the burden is on the prosecution to prove beyond a reasonable doubt that the defendant was sane at the time of the offense." Syllabus Point 2, State v. Milam, W.Va., 260 S.E.2d 295 (1979). Syllabus Point 2, State v. Daggett, W.Va., 280 S.E.2d 545 (1981).
"In any case where the defendant relies upon the defense of insanity, the defendant is entitled to any instruction which advises the jury about the further disposition of the defendant in the event of a finding of not guilty by reason of insanity which correctly states the law ...." Syllabus Point 2, State v. Nuckolls, W.Va., 273 S.E.2d 87 (1980). Syllabus Point 4, State v. Jackson, W.Va., 298 S.E.2d 866 (1982).
*783 He should also have had a pretrial in camera suppression hearing on his confession. Syllabus Point 1, State v. Jackson, supra; Syllabus Point 5, State v. Daggett, supra.
Bias is entitled to a reversal of his conviction.[6]
Reversed.
NOTES
[1] State ex rel. Walton v. Casey, supra, was modified in 1981 by State ex rel. Smith v. Scott, W.Va., 280 S.E.2d 811, Syllabus:
"While a criminal trial is unwarranted when pretrial psychiatric examinations clearly reveal by a preponderance of the evidence, that the accused at the time the crime was committed, was not criminally responsible for his acts, W.Va.Code, 27-6A-1 [1977] et seq. provides no mandatory pretrial mechanism for resolving the issue of criminal responsibility; consequently, adjudication of criminal responsibility before trial is entirely within the combined discretion of the trial court judge and the prosecuting attorney, since absent a motion to nolle an indictment by the prosecuting attorney based on persuasive pretrial medical reports, the trial court judge has no discretion to deny the State a trial by jury on the issue of criminal responsibility."
At page 814, the Court stated:
"Since we believe that syl. pt. 1 of Walton v. Casey, supra, correctly states proper policy with regard to the humane treatment of those not criminally responsible for their acts, we reaffirm today our conclusion that trying people who are obviously not criminally responsible is an unnecessary strain upon a defendant in need of treatment as well as a waste of judicial, prosecutor, jury, and lawyer time. Nonetheless, the decision regarding whether to adopt the policy expressed in syl. pt. 1 of Walton v. Casey, supra, is within the discretion of the trial court judge and the prosecutor ...."
Even by Smith's modification of Walton, defense counsel should have moved the court to exercise its discretion to dismiss criminal proceedings against Bias.
[2] This order was made pursuant to former W.Va.Code, 62-3-9 that was declared unconstitutional in State ex rel. Walker v. Jenkins, 157 W.Va. 683, 203 S.E.2d 353 (1974), and replaced by W.Va.Code, 27-6A-1, et seq.
[3] Defense counsel asserted he could not locate other physicians and psychiatrists who examined Bias. Bias' appellate counsel with little effort found at least eight of them and had leads on more.
[4] Hospital records may be admissible as records kept in ordinary course of business if verified by their custodian or supervisor. Tedesco v. Weirton General Hospital, W.Va., 235 S.E.2d 463 (1977). Accord, Federal Rules of Evidence, Rule 803(6) and Advisory Committee Notes:
"... Other federal decisions, however, experienced no difficulty in freely admitting diagnostic entries. Reed v. Order of United Commercial Travelers, 123 F.2d 252 (2d Cir.1941); Buckminster's Estate v. Commissioner of Internal Revenue, 147 F.2d 331 (2d Cir.1944); Medina v. Erickson, 226 F.2d 475 (9th Cir.1955); Thomas v. Hogan, 308 F.2d 355 (4th Cir.1962); Glawe v. Rulon, 284 F.2d 495 (8th Cir.1960). In the state courts, the trend favors admissibility. Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938); Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R. 2d 1022 (1956); People v. Kohlmeyer, 284 N.Y. 366, 31 N.E.2d 490 (1940); Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245 (1947). In order to make clear its adherence to the latter position, the rule specifically includes both diagnoses and opinions, in addition to acts, events, and conditions, as proper subjects of admissible entries."
[5] Appellate counsel states they are all still practicing in Logan County.
[6] The prosecution and court may agree that another trial is a waste of judicial resources, and Bias was obviously not criminally responsible. Syllabus, State ex rel. Smith v. Scott, W.Va., 280 S.E.2d 811 (1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262717/ | 83 Cal.Rptr.2d 740 (1999)
71 Cal.App.4th 405
In re KIMBERLY S., a Person Coming Under the Juvenile Court Law.
Fresno County Department of Social Services, Plaintiff and Respondent,
v.
Leanne W., Defendant and Appellant.
No. F031975.
Court of Appeal, Fifth District.
April 13, 1999.
Review Denied July 14, 1999.
*741 Francia M. Welker, under appointment by the Court of Appeal, for Defendant and Appellant.
Phillip S. Cronin, County Counsel, and Nannette J. Stomberg, Deputy County Counsel, for Plaintiff and Respondent.
Certified for Partial Publication. [*]
OPINION
VARTABEDIAN, Acting P.J.
We are called upon to determine whether a birth parent must be advised of the availability of a kinship adoption agreement prior to termination of parental rights (Fam.Code, § 8714.7). A kinship adoption agreement allows, under certain circumstances, the adoptive parents, the birth relatives, and the child, to enter into an agreement regarding continuing contact and/or visitation between the child and designated birth relatives. The agreement is intended as a tool to promote a relative's interest in adoption. It further seeks to expedite legal permanency for children who cannot return to their parents. Leanne W, the mother of Kimberly S, appeals, claiming error because she was not given an opportunity to enter into a kinship adoption agreement prior to termination of her parental rights. As we will discuss, the Legislature did not intend kinship adoption agreements to alter termination of parental rights. Leanne was therefore not entitled in this proceeding to notice of the availability of such an agreement. We affirm.
FACTS AND PROCEEDINGS
Kimberly S. was born on September 14, 1996. On December 2, 1996, Leanne W. was arrested for being under the influence of a controlled substance. On December 3, 1996, a juvenile dependency petition was filed by the Fresno County Department of Social Services (Department) alleging that Leanne had a substance abuse problem which negatively affected her ability to provide adequate supervision for Kimberly.[1] Kimberly was detained and placed with her maternal aunt.[2]
At the April 2, 1997, jurisdictional hearing, the court found true the allegation that because *742 of her substance abuse problem Leanne was unable to adequately supervise Kimberly. Leanne was ordered to obtain counseling and substance abuse treatment. It was recommended that Leanne enter an in-patient program where Kimberly could be placed with her. Kimberly remained in the custody of a maternal aunt.
On August 26, 1997, Kimberly was placed with her maternal grandmother. Prior to the six-month review hearing on October 2, 1997, Leanne's drug tests were negative and Leanne's visits with Kimberly were going well. Leanne was having difficulty getting accepted into an in-patient program because she had hepatitis. Leanne had not attended parenting or domestic violence courses, but she planned to do so. At the six-month review hearing, the court found the current placement to be appropriate, ordered that reunification services continue, and found that it would be detrimental to return Kimberly to Leanne. Kimberly remained in the care of her maternal grandmother.
A report was prepared for the 12-month review hearing. Leanne continued to test clean for drugs and her visits with Kimberly were going well. Leanne had not followed through on mental health counseling and had failed to participate in a parenting program. Although Leanne completed an intensive outpatient drug program, she failed to participate in the aftercare program. Leanne had started a domestic violence class.
By letter dated February 27, 1998, Leanne informed the social worker that she was giving up her rights to Kimberly and giving those rights to the maternal grandmother. Leanne stated that she was going out of state to see her other children. She indicated in her letter that she would like to retain the right to see and contact Kimberly. Based on the above letter and on Leanne's failure to fully comply with the case plan, the worker recommended that reunification services be terminated and the case be transferred to the assessment unit for permanency planning.
At the 12-month review hearing, the trial court terminated reunification services and referred the case to the assessment unit for selection and implementation of a permanent plan. Kimberly was ordered to remain in the care of her maternal grandmother.
In the social worker's report prepared for the permanency planning hearing, it was found that Kimberly was adoptable and that her current caretaker, the maternal grandmother, was suitable and committed to the adoption of Kimberly. Leanne visited Kimberly less frequently because she had been traveling to and from another state to visit her other children. Termination of parental rights was recommended.
On August 17, 1998, the trial court terminated Leanne's parental rights. She appeals.
DISCUSSION
I[**]
II.
No Duty to Advise of Availability of Kinship Adoption Agreement
For over a century the courts in California have held that birth parents' rights to their child are extinguished when the child is adopted and the courts are without authority to make orders regarding care, custody and/or support between the birth parents and the child. (Younger v. Younger (1895) 106 Cal. 377, 39 P. 779; Marckwardt v. Superior Court (1984) 150 Cal.App.3d 471, 198 Cal.Rptr. 41; Huffman v. Grob (1985) 172 Cal.App.3d 1153, 218 Cal.Rptr. 659; In re Sylvia R. (1997) 55 Cal.App.4th 559, 64 Cal. Rptr.2d 93.) The rule extinguishing all legal rights between an adopted child and the birth parents is based on a "policy of providing adopted children with stable homes free of protracted or repeated litigation concerning custody." (Huffman v. Grob, supra, 172 Cal.App.3d at p. 1158, 218 Cal.Rptr. 659.)
In 1997, legislation was passed altering the long-standing rule mandating extinguishment of birth parents' rights after an adoption of their child. The Legislature determined that in limited circumstances the goal of providing stable homes to children may be fostered by *743 allowing relatives of the child who are the prospective adoptive parent or parents, the birth relatives (including the birth parent or parents), and the child to enter into agreements providing for visitation, future contact, and/or sharing of information. Such an agreement is known as a kinship adoption agreement.
Family Code section 8714.7 sets forth the rules regarding kinship adoption agreements. It provides in pertinent part:
"(a) Nothing in the adoption laws of this state shall be construed to prevent the adopting parent or parents, the birth relatives, including the birth parent or parents, and the child from entering into a written agreement to permit continuing contact between the birth relatives, including the birth parent or parents, and the child if the agreement is found by the court to be in the best interests of the child at the time the adoption petition is granted. The terms of any kinship adoption agreement executed under this section shall be limited to, but need not include, all of the following:
"(1) Provisions for visitation between the child and a birth parent or parents and other birth relatives, including siblings.
"(2) Provisions for future contact between a birth parent or parents or other birth relatives, including siblings, or both, and the child or an adoptive parent, or both.
"(3) Provisions for the sharing of information about the child in the future.
"(b) At the time an adoption decree is entered pursuant to a petition filed under Section 8714.5, the court entering the decree may grant postadoption privileges when an agreement for those privileges has been entered into pursuant to subdivision (a).
"(c) This section is applicable only to kinship adoption agreements in which the adopting parent is a relative of the child or a relative to the child's half-sibling and the adoption petition is filed under Section 8714.5. For purposes of this section and Section 8714.5, `relative' means an adult who is related to the child or the child's half sibling by blood or affinity, including all relatives whose status is preceded by the words `step,' `great,' `great-great,' or `grand,' or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
"(d) The child who is the subject of the adoption petition shall be considered a party to the kinship adoption agreement. The written consent to the terms and conditions of the kinship adoption agreement and any subsequent modifications of the agreement by a child who is 12 years of age and older is a necessary condition to the granting of privileges regarding visitation, contact, or sharing of information about the child, unless the court finds by a preponderance of the evidence that the agreement, as written, is in the best interests of the child. Any child who has been found to come within Section 300 of the Welfare and Institutions Code or who is the subject of a petition for jurisdiction of the juvenile court under Section 300 of the Welfare and Institutions Code shall be represented by an attorney for purposes of consent to the kinship adoption agreement." (Added by Stats.1997, ch. 793, § 5.)
The provision allowing kinship adoption agreements was part of Assembly Bill No. 1544 (1997-1998 Reg. Sess.) dealing with foster care, dependency and adoption procedures. This bill also contained Family Code section 8714.5, the legislative findings and declarations regarding the adoption of unmarried minors by relatives. It provides in pertinent part:
"(a) The Legislature finds and declares the following:
"(1) It is the intent of the Legislature to expedite legal permanency for children who cannot return to their parents and to remove barriers to adoption by relatives of children who are already in the dependency system or who are at risk of entering the dependency system.
"(2) This goal will be achieved by empowering families, including extended families, to care for their own children safely and permanently whenever possible, by preserving existing family relationships, thereby causing the least amount of disruption *744 to the child and the family, and by recognizing the importance of sibling and half-sibling relationships,
"(b) A relative desiring to adopt a child may for that purpose file a petition in the county in which the petitioner resides. Where a child has been adjudged to be a dependent of the juvenile court pursuant to Section 300 of the Welfare and Institutions Code, and thereafter has been freed for adoption by the juvenile court, the petition may be filed either in the county where the petitioner resides or in the county where the child was freed for adoption.
"........................................
"(d) If the adopting relative has entered into a kinship adoption agreement with the birth parent as set forth in Section 8714.7, the kinship adoption agreement, signed by the parties to the agreement, shall be attached to and filed with the petition for adoption under subdivision (b)." (Added by Stats.1977, ch. 793, § 4).
Included as part of Assembly Bill No. 1544 was an amendment to Welfare and Institutions Code section 366.26, subdivision (a), stating that kinship adoption agreements are applicable and available to all dependent children meeting the requirements of that section. Subdivision (a) was amended to read as follows:
"(a) This section applies to children who are adjudged dependent children of the juvenile court pursuant to subdivision (c) of Section 360. The procedures specified herein are the exclusive procedures for conducting these hearings; Part 2 (commencing with Section 3020) of Division 8 of the Family Code is not applicable to these proceedings. Section 8714-7 of the Family Code is applicable and available to all dependent children meeting the requirements of that section. For children who are adjudged dependent children of the juvenile court pursuant to subdivision (c) of Section 360, this section and Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing with Section 7660) of Part 3 of Division 12 of the Family Code specify the exclusive procedures for permanently terminating parental rights with regard to, or establishing legal guardianship of, the child while the child is a dependent child of the juvenile court." (Emphasis added.)
First, Leanne argues that Welfare and Institutions Code section 366.26 specifically mandates the application of kinship adoption agreements in dependency proceedings at the time of the permanency planning hearing.
Kinship adoption agreements are not limited to children in the dependency system; they are available to any child who meets the criteria. Welfare and Institutions Code section 366.26, subdivision (a) sets forth what laws are applicable and what laws are not applicable when a dependency court is terminating parental rights or establishing guardianship. The language inserted into this subdivision, that "Section 8714.7 of the Family Code is applicable and available to all dependent children meeting the requirements of that section," is not a mandate to the dependency court requiring it to advise the parties of the availability of a kinship adoption agreement; it merely describes one of the parameters of the authority of the family court in subsequent adoption proceedings. The amendment states that Family Code section 8714.7 is available to all dependent children, even if the rights of their birth parents have been involuntarily terminated by the juvenile court.
A kinship adoption agreement is a part of an adoption proceeding; it is to be approved, if at all, "by the court ... at the time the adoption petition is granted." (Fam.Code, § 8714.7, subd. (a).) The agreement is incorporated into the terms of the adoption after birth relatives, adoptive parents, and the child, if of appropriate age, have agreed to the terms and the court finds the agreement is in the best interest of the child. (Fam. Code, § 8714.7, subd. (b).) A petition for adoption is not considered by the court until after the appellate rights of the natural parent have been exhausted. (Welf. & Inst. Code, § 366.26, subd. (j).)
In practical terms, a kinship adoption agreement may be initiated by either the birth parent(s), other birth relatives, or by the prospective adoptive parents. When a birth parent is contemplating relinquishing a *745 child for adoption by a relative, the birth parent may decide to condition such relinquishment on the adoptive parent's agreement to allow the birth parent to maintain some form of open relationship with the child, such relationship to be embodied in a kinship adoption agreement as provided by the statute.
From the perspective of a prospective adoptive parent, that person may want the birth parent's continued involvement with the child, at some level, especially when the adoptive parent is a relative of the birth parent. The adoptive parent may view such involvement as beneficial for the child, may view such involvement as lessening tensions in the circumstance of an involuntary, dependency-related transfer of custody,[3] or may view such involvement as appropriate for a myriad of other reasons.
In the context of an involuntary, dependency-related transfer of custody, however, the birth parent has no cognizable interest in dictating the terms of the resulting adoption. The birth parent may try to persuade the adopting relative of the benefits of continued contact, but that effort concerns the terms of the adoption; it is not a condition to be imposed upon the termination of parental rights in the dependency proceeding. The sanctioning of kinship adoption agreements does not alter the adopting parents' ability to choose that the birth parents not have any contact with the child.
The dependency court has an alternative solution if it determines continued involvement of the birth parent is in the child's best interest. Thus, Welfare and Institutions Code section 366.26, subdivision (c)(1)(A), provides that the court can impose a permanent guardianship without termination of parental rights when such continued involvement of the birth parent is appropriate. *746 Clearly the birth parent has a right to argue in favor of this alternative resolution even after the court has ordered termination of reunification efforts, and regardless of whether the child is placed with a relative or a nonrelative. This alternative, and in some respects broader, form of advocacy by the birth parent of continued involvement with the involuntarily transferred dependent child fully vindicates the interests that, in the context of a voluntary relinquishment, are reflected in the kinship adoption agreement statute.
In the circumstances involving a dependent child, it is not normally the goal of the birth parent to facilitate adoption of a dependent child. If continued parental involvement (Welf. & Inst.Code, § 366.26, subd. (c)(1)(A)) or continued relative placement with a relative unwilling or incapable of adopting (Welf. & Inst.Code, § 366.26, subd. (c)(1)(D)) makes guardianship the disposition that is in the child's best interest, at least the legal possibility of a restoration of custody to the birth parent is maintained. With adoptionkinship or otherwisethe severance of the parental relationship with the birth parent is final and normally irreversible. A kinship adoption agreement does not aid a birth parent wishing to prevent termination of parental rights at the permanency planning hearing.[4]
Leanne contends that Family Code section 8714.5, subdivision (a)(1) and (2), particularly the portion which states that the goals of subdivision (a)(1) (removing barriers to adoption and expediting legal permanency) will be achieved by preserving existing family relationships, requires, as a logical extension of the legislative intent, that kinship adoption agreements be available to birth parents where applicable. Leanne claims that termination of the rights of a birth parent, one of the parties to the kinship adoption agreement, is hardly a preservation of existing family relationships.
What Leanne's argument fails to recognize is that a kinship adoption agreement will never be given effect unless parental rights are terminated. The termination of parental rights is a prerequisite to a decree granting postadoption privileges. Leanne has not been precluded from entering into a kinship adoption agreement because her parental rights have been terminated. Because voluntary or involuntary termination of parental rights is a prerequisite to an enforceable kinship adoption agreement, such termination does not defeat the purposes of Family Code section 8714.7. Further, as previously set forth, parental rights are not terminated if the parent has maintained regular contact and the child would benefit from the relationship. (Welf. & Inst.Code, § 366.26, subd. (c)(1)(A).)
Leanne argues that a kinship adoption agreement was appropriate in this case and was in Kimberly's best interests. Leanne claims that continued contact with Kimberly would benefit Kimberly because it would give her access to her mother's health information, thus enabling an adequate assessment of Kimberly's health risks and appropriate treatments. Another benefit Leanne asserts Kimberly would gain from continued contact is maintaining the emotionally beneficial biological lifeline from parent to child.
Although assuring the free flow of medical information to adopted children from their biological parents and maintaining a biological lifeline to natural parents may be beneficial to a child, it does not appear such benefits were intended to alter the fundamental *747 nature of termination proceedings. There is nothing in the statutes mandating consideration of such benefits at the termination hearing.
Nothing in either the kinship adoption statute or the juvenile dependency statutes requires that birth parents be advised of the availability of kinship adoption agreements. Further, as we have seen above, nothing in the practical unfolding of the usual juvenile dependency proceeding suggests the necessity of a judicially imposed requirement for such an advisement. Finally, the birth parent in a dependency proceeding has no due process right to notice of the kinship adoption statute because the statute creates no rights in the context of a dependency proceeding; rather, the statute merely preserves the option of a kinship adoption agreement despite termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (a).[5]
III.
No Ineffective Assistance of Counsel
Leanne contends her counsel's failure to advise her of the availability of a kinship adoption agreement constitutes ineffective assistance of counsel and requires reversal of the order terminating her parental rights. She further claims that counsel erred in waiving her right to a continuance because such a continuance would have provided her with an opportunity to negotiate the terms of a kinship adoption agreement.
As previously discussed, kinship adoption agreements are of no benefit to a birth parent at a Welfare and Institutions Code section 366.26 hearing. Whether Leanne had entered into a kinship adoption agreement or not would not have altered the order terminating her parental rights. Such an order is based on considerations independent from whether the appropriate parties have entered into a kinship adoption agreement. Ineffectiveness, if any, by her counsel in either waiving time or in not advising her of availability of a kinship adoption agreement, would not have altered the order from which Leanne has appealed.
DISPOSITION
The judgment is affirmed.
WISEMAN, J., and JONES (F.P.), 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 I of the Discussion.
[1] Allegations were also made against Kimberly's father. His parental rights were terminated. He has not appealed.
[2] At the time this petition was filed, Leanne had three other children. One child had been adopted after reunification efforts had failed. The other two children were currently dependents of the court in another state.
[**] See footnote *, ante.
[3] The relevant legislative history suggests this was the primary situation the statute sought to address. The committee report comments state: "This bill was introduced through the collaborative efforts of the counties, State Department of Social Services, children's advocates and relative caregivers over the past year to identify barriers to adoption for children living with relatives and to create an adoption plan for relatives which recognizes the unique circumstances of children placed with relatives.
"Currently, 40 percent to 46 percent of the approximately 100,000 children in foster care in California live with relatives, primarily because of the state's requirement to consider relatives as the first choice for placement. The majority of relative placements are grandparents, and the current foster care system has legal interventions and social worker involvement designed for foster parents that some maintain are not necessarily appropriate for relative placements or suitable for assuring the safety and long-term well being of children in these placements." (Com., Sen. Rules Com. rep. for Assem. Bill No. 1544 (1997-1998 Reg. Sess.).)
The arguments in support of the bill state:
"The sponsors assert that the most significant barrier cited by the relative caregivers to adoption was the adversarial juvenile court process that requires finding the birth parent unfit. Relatives are often uncomfortable with this traditional adoption because it severs all family ties and changes the family structure by making the adopting relative the child's legal mother or father. By offering relatives an alternative to traditional adoption, this bill attempts to move more children out of the foster care system and into permanent homes.
"According to a Child Welfare Research Center study, outcomes at four years for all children in relative placements show that 55 percent were reunified, 2.7 percent were adopted, 5.3 percent were placed in guardianships, and 31 percent were still in care. The only two exits from the child welfare system are family reunification or adoption. Since neither is appropriate for many kinship care placements, a substantial number of this population of foster children never achieve legal permanence.
"The kinship adoption model in this bill is an attempt to increase children's chances of permanence outside of the foster care system. The kinship adoption process proposed by this bill would allow children to have contact with their biological parents, the lack of which some speculate is a current barrier to relatives' interest in adopting." (Ibid.)
Thus, a kinship adoption agreement may assuage the trepidations of a reluctant prospective adoptive relative parent because it allows the relative to adopt the child without appearing to advocate a role permanently severing all family ties with the birth parents. It is the intent of the Legislature that a kinship adoption agreement will encourage a qualified relative to move forward with an adoption, causing children to move out of foster care and into permanent homes, thereby expediting legal permanency. Given these reasons for kinship adoption agreements, it does not appear that the Legislature in any way intended to alter current dependency procedures to require that birth parents be advised of the availability of these agreements.
[4] In unusual circumstances, a reluctant relative might be persuaded to adopt a dependent child only if there were a kinship adoption agreement preserving certain rights of the birth parent. In a further subset of these unusual cases, the requirements of emotional detriment in Welfare and Institutions Code section 366.26, subdivision (c)(1)(D), might not be met, rendering guardianship inappropriate, and the child would be placed for adoption with a nonrelative. In those unique circumstances, it is possible the parent's counsel or the social worker might have a duty to explore the possibility of a kinship adoption agreement with the reluctant relative. That case is not before us here, and we do not address the existence or content of any such possible duty. In the present case, Leanne's mother was willing and able to adopt Kimberly. Our holding today is, in essence, that Leanne had no right to impose conditions on the involuntary termination of her parental rights when the placement preferred by statuteadoption by a relative of the dependent childwas the plan for permanency adopted by the juvenile court.
[5] See In re Zachary D. (1999) 70 Cal.App.4th 1392, 83 Cal.Rptr.2d 407.
[***] Judge of the Fresno Superior Court, sitting under assignment by the Chairperson of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1650829/ | 37 So.3d 376 (2010)
Aubrey WASHINGTON, Appellant,
v.
STATE of Florida, Appellee.
No. 1D09-3132.
District Court of Appeal of Florida, First District.
June 4, 2010.
Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
In this Anders[1] appeal, we affirm the judgment and sentence but remand for correction of an apparent scrivener's error on the order revoking Appellant's probation. The order revoking Appellant's probation states that the court found Appellant in violation of condition four of his probation. The Order of Probation provides that condition four is to "not possess, carry[,] or own any firearm or weapon, unless authorized by the court." This condition was never at issue, and the trial court made no oral pronouncements that Appellant possessed, carried, or owned any firearms or weapons. Rather, the trial court orally pronounced that Appellant violated his probation by possessing marijuana and driving while his license was suspended or revoked, as a habitual offender. This violation relates to the condition requiring him to "live without violating the law." According to the Order of Probation, this condition was number five.
Based on the trial court's oral pronouncements and the substantive requirements of conditions four and five, it is clear that the notation that Appellant violated condition four was merely a scrivener's error. For this reason, we affirm Appellant's judgment and sentence but remand the case to the trial court for correction of the order revoking probation to reflect that Appellant was found guilty of violating the condition requiring him to "live without violating the law."
AFFIRMED and REMANDED.
WOLF, LEWIS, and MARSTILLER, JJ., concur.
NOTES
[1] Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329883/ | 227 Ga. 722 (1971)
182 S.E.2d 761
FRIEDMAN
v.
KENNEDY et al.
26379.
Supreme Court of Georgia.
Argued April 12, 1971.
Decided June 4, 1971.
Rehearing Denied June 17, 1971.
Congdon & Williams, W. Barry Williams, William Ralph Hill, Jr., for appellant.
Fulcher, Fulcher, Hagler, Harper & Reed, E. D. Fulcher, for appellees.
FELTON, Justice.
Louis Friedman filed his complaint against Royal-Crown Bottling Company, a partnership, seeking to recover damages for alleged personal injuries. Count 1 alleged that the defendants had impliedly warranted to the plaintiff that the bottle of carbonated beverage was merchantable and reasonably suited to the use intended and that the defendants knew of no latent defects undisclosed, to wit: that the carbonated beverage was a mixture suitable for human consumption and would not cause its container to explode or fragment. Count 2 alleged that the defendants impliedly warranted to the plaintiff that the glass bottles containing the beverage were merchantable and reasonably suited to the use intended. Count 3 alleged that the defendants impliedly warranted that the glass containers containing the carbonated beverage would not explode or fragment during their keeping, storage and handling by the plaintiff, *723 under ordinary and customary circumstances and conditions. Count 4 alleged that the defendants were negligent in not properly inspecting and testing the bottle prior to filling it with a carbonated beverage.
On the trial of the case the motion of the defendants for a directed verdict was overruled and the jury returned a general verdict in favor of the plaintiff. On appeal to the Court of Appeals, that court held that the trial court erred in overruling the defendants' motion for a directed verdict. Kennedy v. Friedman, 123 Ga. App. 105 (179 SE2d 566). The court, in its opinion (p. 108), said: "Here the plaintiff had the burden to produce evidence on these critical elements of his case. From the time the bottle left the manufacturer, only three people had access to it. Nevertheless, plaintiff failed to show that two of them had not tampered with, banged, or otherwise handled the bottle in such a way that it could have caused the explosion. For this reason, plaintiff failed to prove a prima facie case either in negligence or warranty" and in its headnote of the opinion ruled: "In a products liability action, whether based on negligence or breach of implied warranty, the plaintiff must account for the product from the time it leaves the defendant's hands until the time of the occurrence in order to eliminate other explanations than the defendant's negligence (if plaintiff is relying upon res ipsa loquitur) or to prove by inference that the product was defective when sold."
We granted the plaintiff application for the writ of certiorari, and we now reverse.
It appears without dispute that the plaintiff purchased 24 bottles of Diet-Rite Cola beverage from the defendants; that he carried them to his home and placed one six-pack carton on a pantry shelf in his kitchen; that on May 21, 1962, he went into the pantry and as he removed a bottle from the carton, the bottle exploded causing injuries to his person.
There was evidence that the plaintiff's wife and the housemaid had access to the pantry where the bottle that exploded was located, but the record is silent as to whether either one prior to the explosion had or had not handled or touched the bottle that exploded.
*724 On the trial, glass fragments of the bottle that had exploded were introduced in evidence. Earl W. Toulouse, Regional Service Engineer for Owens-Illinois Company, on direct examination as a witness for the defendants, testified as follows: That he determined from the glass fragments of the bottle that the bottle was manufactured by Owens-Illinois. He described the method and standard employed by that company and the test to which the bottles were subjected. He stated that after he had reassembled the glass fragments of the broken bottle he had reached the conclusion that the cause of the bottle breaking was an impact or external pressure and not internal pressure.
Dr. Oscar G. Fryer, consultant for the Science Center of Drury College, a witness for the defendants, testified that he had examined the fragments of the broken bottle and in his opinion, the bottle was broken by reason of external pressure.
On cross examination the witness Toulouse testified as follows: "Q. What other kind of examination did you make of this glass bottle here, sir? A. This particular bottle? Q. Yes, sir. A. We examined the well, of course, all of the pieces we examined for the detravel, we examined the what might have been left of any stress that may have been in it, uneven stress. Q. Part of the glass was pulverized, was it not? A. That's correct. Q. Did you determine anything on that account? A. No, other than we could tell that most of the pulverized glass came from the directly behind the point of impact, by determining this because that was the only portion of the glass, of the bottle itself where the pieces, except for one or two places, where goodly size pieces were missing. Just two, I think two. And the other pulverized glass, of course, too small to put back together or anything like this, but knowing from other tests that we have made and knowing that the pulverized pieces that we get come from directly behind the point of impact where the stress is the greatest. Q. Yes, sir. Did you find any internal strains in that bottle? A. It has what we classify as a number two, this is extra-polated to our standards, then compared with other bottles that had broken, the strain that remained now, we did this with a polariscope when we did this in Toledo in 1966. We did *725 not do that with this one right now, but at that time with what we call a number two. Q. You did find internal strains in the glass? A. That's correct. This is normal. Q. Would a combination of internal strain and external scratching with carbonated beverage being contained there, wouldn't that accentuate any one of those defects? A. It would add to it. Now, by accentuating, I might have to say relative there, too, because this amount of strain is insignificant in this respect because the other strains from impact are so high that this is lost, this amount. Q. All right. But you talked about, a while ago, of internal pressure by the carbonated beverages on the inside exerting pressure on the outside? A. That's correct, yes. Q. Because of the pressure pushing out? A. Uh, huh. Q. All right. And then if you strike it on the outside it is more inclined to break or explode with these defects than it is without them, is it not? A. Right, correct. Q. Yes, sir. And it wouldn't take as much of an impact with these defects in the bottle as it would with a good sound bottle without any of these defects, would it? A. It wouldn't take as much, and then again you have to get back to the pattern itself and relate this to fracture analysis to determine whether or not which was involved and how much. Q. But it is a relative term? A. It is a relative term, yes. Q. And the defects... A. And it depends on the individual bottle itself that is the pattern of the fracture itself. Q. Did you ever experience any bottle exploding at your factory because of scratches internally caused during the manufacturing process? A. Yes, we have where they are badly annealed, where they haven't been annealed properly, you can scratch the inside surface and they will break. They won't explode, but they'll crack. Q. What do you mean by annealed? A. All glass that is cooled fast sets up a strain in the glass itself. Now this is where the annealing layers or annealing ovens as they are known in some places, we call them layers, where the bottle is reheated up to a point just shy of the melting point so it won't slump and go out of shape, reheated to that point, and then gradually cooled through the annealing point, which is a particular temperature."
"Where an action is brought to recover damages for an injury caused by the explosion of a bottle, the contents of which were *726 manufactured, bottled, and sold by the defendant as a harmless beverage, an inference of negligence on the part of the manufacturer arises, when it is shown that all the persons through whose hands the bottle had passed were free from fault, and that the condition of the bottle and its contents had not been changed since it left the defendant's possession." Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762 (73 S.E. 1087).
The jury under the testimony of the defendants' witness Toulouse, on cross examination, could have found that the bottle that exploded was defective when it left the hands of the defendants. The principal reason for granting certiorari in this case was that the complainant's case was not only based on the doctrine of res ipsa loquitur but was based on the fact that there was direct proof going to show the defective character of the bottle. In such a case the rule is as stated by the Court of Appeals, through Judge Jenkins: "Under the state of facts testified to, the plaintiff in this case was not dependent upon the application of the doctrine res ipsa loquitur in order to establish his case, since there was direct proof going to show the defective character of the bottle." (Emphasis supplied.) We think the Court of Appeals was right in holding that the evidence did not authorize a verdict under the doctrine of res ipsa loquitur for the reason it stated, but we think that the Court of Appeals was wrong for not ruling that a verdict was authorized under the theory stated above in Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43 (4) (102 S.E. 542).
The Court of Appeals erred in holding that the trial court erred in not directing a verdict on motion of the defendants.
Judgment reversed. All the Justices concur, except Almand, C. J., Grice and Undercofler, JJ., who dissent.
*727 ALMAND, Chief Justice, dissenting.
Being of the opinion that the judgment of the Court of Appeals is based entirely on the question of the sufficiency or insufficiency of the evidence to support the ruling of the trial court, and that question not being one of public importance or gravity, the writ of certiorari was improvidently granted. I would dismiss the petition for the writ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329944/ | 227 Ga. 653 (1971)
182 S.E.2d 475
STEELE
v.
THE STATE. AUSTIN
v.
THE STATE. KELLEY
v.
THE STATE. LEWIS
v.
THE STATE.
26460, 26461, 26462, 26463.
Supreme Court of Georgia.
Argued April 12, 1971.
Decided June 2, 1971.
*655 Alfred D. Fears, Byrd, Groover & Buford, Denmark Groover, Jr., for appellants.
Edward E. McGarity, District Attorney, George J. Hearn, III, William R. Childers, Jr., for appellee.
FELTON, Justice.
1. Enumerated error 1 raises the questions whether the special presentment as a whole and each count thereof separately, allege an offense against any valid law of the State of Georgia. The latest Act creating the Board of County Commissioners of Henry County, Georgia, is contained in Georgia Laws of 1921, page 490 et seq. Sections 10 and 12 of the Act are pertinent. Section 10 of the Act reads as follows: "Be it further enacted by the authority aforesaid, That said Board of Commissioners shall be the sole purchasing agent for said county, and shall make all contracts for the purchase of all articles, goods, wares, material or merchandise for the use of said county; except in case of emergency when such items do not amount in bulk to more than $25, then the Chairman may contract and make said purchase, but he shall report the same at the next meeting of said Board. It shall be the duty of said Board of Commissioners before contracting to buy any articles, goods, wares, materials or merchandise which amount in bulk to more than $25, they shall have submitted to them at least three (3) competitive bids from dealers in the articles, goods, wares, materials or merchandise sought to be purchased, and they shall from the same quality of goods accept the lowest bid, and such bids, as well as all invoices of everything purchased, shall be kept on file by the Clerk in the office of the Board of Commissioners. No Commissioner shall receive any rebates, discounts, or prerequisites [sic] on account of any contracts or purchases they may make. Said Chairman shall have the *656 right in only cases of emergency to employ a particular work or service for the county, and then in an amount not to exceed $25 for the whole of said work or service, which he shall report at the next meeting." (Emphasis supplied.) Section 12 of said Act reads as follows: "Be it further enacted by the authority aforesaid, That the failure of said Board of Commissioners to comply strictly with Sections 10 and 11 of this Act shall constitute malpractice on the part of each commissioner, and be cause for their removal."
(a) All of the counts charging a law violation charging that the defendant "authorized" purchases to be made without obtaining three bids, are defective for the reason that the law applicable does not provide that "authorizing" a contract is equivalent to "entering into" or "making" a contract. Code Ann. § 26-601 (Ga. L. 1968, pp. 1249, 1269). No consummation of a bilateral agreement following the alleged authorization is alleged. Even if we assume that evidence could be introduced to show final contracts, it would not suffice to correct the defective counts. Oliveira v. State, 45 Ga. 555, 558.
(b) The charges contained in Counts 3a, 6, 7, 10b and 11b in the Austin case (No. 26461), charge that there was authorization for "services." The Act creating the Henry County Board of Commissioners contains no provision for receiving 3 bids for services, either separately from or in connection with a job involving both material, etc., plus services where the separate items are itemized and distinguishable. These counts are defective and are subject to the demurrers urged.
(c) Count 13 charges failure to accept the lowest bid for "a comparable model" and Count 14 charges merely failure to accept the lowest bid. Both of these charges fail to sufficiently and specifically allege that the lowest bids were for goods of "the same quality," as is provided in the Act, hence fail to allege an offense against the Act.
2. Code § 89-9907 is not unconstitutional for the reason that the expression "malpractice in office" is too vague and indefinite to apprise the defendant of the conduct proscribed by said section. Under the full-bench decision in Cargile v. State, 194 Ga. 20 (2) (20 SE2d 416), by which we are bound, the expression "malpractice in office" in said statute was made sufficiently definite by *657 construing the statute in connection with the laws defining the official's duties together with applicable sections of the Code. In the instant case, this was done by construction in connection with Ga. L. 1921, p. 490 et seq., §§ 10 and 12. The case of Byington v. State, 218 Ga. 440 (128 SE2d 329) held invalid an indictment which attempted to charge that defendant with an offense no punishment for which was even provided by our statutes, and is not contrary to the Cargile case, supra, as appellants contend. In the case of Smith v. Duggan, 153 Ga. 463, 465 (112 S.E. 458), this court recognized that the term "malpractice in office" is necessarily quite indefinite because of the constitutionally sanctioned lack of uniformity in the creation of county boards of commissioners and the powers to be exercised by them, under the various legislative Acts. Enumerated error 2 is without merit.
3. Section 12 of Ga. L. 1921, p. 490, is not unconstitutional on the ground that it does not provide for notice and hearing. Code Ann. § 89-9908 provides not only for a jury trial, but also a hearing before the grand jury, for parties indicted under the preceding section ( § 89-9907). Section 89-9908 is no less applicable to the appellant's case (on the ground that the Act of 1921 is a special Act and not part of the 1933 Code) than is Code § 89-9907, upon which the indictment is properly based. Enumerated error 3 is without merit.
4. Sections 10 and 12 of the 1921 Act are not unconstitutional as special laws in derogation of the general statute (Title 23 of the Code) appertaining to county commissioners. The Constitution itself has made an exception to the rule, that general laws shall have uniform operation throughout the State, when the same pertains to county commissioners. See Bradford v. Hammond, 179 Ga. 46 (175 S.E. 18); Bowen v. Lewis, 201 Ga. 487, 488 (40 SE2d 80) and cit. Enumerated error 4 is without merit.
5. Code § 89-9907 is not unconstitutional as violative of the due process clause of the 14th Amendment to the U. S. Constitution for the reasons stated in Divisions 2 and 3 hereinabove. Enumerated error 5 is without merit.
6. Enumerated error 6, complaining that the allegations in the indictment lack the requisite specificity for a special presentment drawn under Code § 89-9907, is meritorious for the reasons stated *658 in Division 1 hereinabove.
7. "Several offenses committed by the same person may be included in the same indictment, in different counts, where they are of the same general nature and belong to the same family group, where the mode of trial and the nature of the punishment are the same, as is shown by the record in this case." Ellis v. State, 67 Ga. App. 821 (1) (21 SE2d 316). In this case the State had the option of putting the defendant on trial for one instance of malpractice in office because all of the essential elements would appear as to that offense, or put the defendant on trial for as many instances of the offense as it appeared he participated in over a period of time. The State elected the latter course, which placed upon it the burden of separating the instances from each other so that the defendant could not be convicted twice for the same instance of the offense. See Estes v. State, 98 Ga. App. 521 (106 SE2d 405); Phillips v. State, 99 Ga. App. 424 (108 SE2d 721). Here, the instances are alleged to be different transactions, occurring on various different days. See Phillips, supra (1 b). Including multiple counts in the indictment did not violate the provisions of Code Ann. § 26-506 (Ga. L. 1968, pp. 1249, 1267) because in the instant case the State did not rely on "the same conduct" to establish the commission of the offenses, but rather the same type of conduct, reoccurring in a number of instances. Enumerated error 7 is without merit.
8. Enumerated errors 8 through 21 complain of the same lack of specificity as to each individual count as does enumerated error 6 as to the allegations of the indictment as a whole, and these enumerated errors are likewise meritorious. See Division 6, hereinabove.
The trial court erred in its judgments overruling those demurrers to the indictments which are ruled on in Divisions 1, 6 and 8 hereinabove.
Judgments affirmed in part; reversed in part. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329948/ | 123 Ga. App. 712 (1971)
182 S.E.2d 332
SMITH et al.
v.
NELSON.
KNIGHT
v.
NELSON.
45822. 45823.
Court of Appeals of Georgia.
Argued January 11, 1971.
Decided April 8, 1971.
Rehearing Denied April 29, 1971.
*716 Bouhan, Williams & Levy, Frank W. Seiler, Brannon, Clark & Hester, Perry Brannen, Perry Brannen, Jr., for Smith et al.
Falligant, Doremus & Karsman, Ogden Doremus, for Knight.
Frank S. Cheatham, Jr., for appellee.
EBERHARDT, Judge.
1. The general grounds. The Knight appeal is as to the overruling of his motion for new trial on the general grounds only, and as to it we find no difficulty in concluding that the general grounds are without merit. There was ample evidence which authorized a finding that he was guilty of gross negligence.
The situation in the Smith-Whitaker appeal is somewhat different. *717 In it appellants strongly urge that Mr. Nelson's injury and death resulted solely from the negligence of Knight, and on this we find the evidence strongly in support of their position. There can be no doubt that Knight had ample room to pass to the left of the tractor-trailer, that there was really no reason why he should not have seen it, unless, indeed, it was because he was, at the time, keeping his eye on the white line at the right edge of the pavement and following it not keeping a lookout ahead, as it was his duty to do. Leggett v. Brewton, 104 Ga. App. 580 (3) (122 SE2d 469). Can there be any doubt that if he had been looking ahead the rig with its blinking light and the driver waving his hands and yelling would have attracted his attention and that, seeing them Knight should have passed to the left, there being ample room to do so? We think not. But if Nelson's injury was not attributable solely to Knight's negligence, and if it appears that Whitaker was negligent in the stopping of his vehicle and that his negligence is not, for any reason, excusable, and that it contributed to Nelson's injury, he would not be confined to a recovery against Knight, for Knight's negligence was not imputable to Nelson. Brinson v. Davis, 32 Ga. App. 37 (122 S.E. 643); Central of Ga. R. Co. v. Barnett, 35 Ga. App. 528 (134 S.E. 126); Anderson v. Collins &c. R. Co., 47 Ga. App. 722 (171 S.E. 384); Atlantic C. L. R. Co. v. Coxwell, 93 Ga. App. 159 (91 SE2d 135).
As to whether Knight, if he were the plaintiff, would be barred from recovering by Code § 105-603, for failure to exercise ordinary care for his own safety even if there were negligence by Whitaker in stopping the truck on the highway, see Sumner v. Thomas, 72 Ga. App. 351 (33 SE2d 825). If Knight's negligence were the sole proximate cause of Nelson's injuries (as the jury might well have found them to be) plaintiff here would be barred from a recovery against Smith and Whitaker, even though it should appear that Whitaker was, in some respect, negligent in stopping the tractor-trailer on the paved portion of the road. Davis v. Tanner, 75 Ga. App. 296 (43 SE2d 165); Hulsey v. Atlanta Transit System, 98 Ga. App. 1 (104 SE2d 618).
If, however, it can be said that Whitaker was in some manner guilty of negligence in stopping the truck on the paved portion of the road, it becomes our duty on appeal to construe the evidence *718 to uphold the verdict, and if we should conclude that a jury question was raised, the jury was authorized to return the verdict against both Knight and Smith-Whitaker. Ga. Power Co. v. Blum, 80 Ga. App. 618 (57 SE2d 18); Pittman v. Staples, 95 Ga. App. 187 (97 SE2d 630).
Our inquiry here, then, is whether the jury may have been authorized to find that Whitaker was guilty of any negligence. If he was not, then, of course, no verdict could have been lawfully returned against him or Smith, for a showing of negligence against the defendant is a sine qua non for authorizing a verdict against a defendant in this kind of action.
The Uniform Act Regulating Traffic on the public highways provides (Code Ann. § 68-1668 (a)): "Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practical to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of 200 feet in each direction upon said highway. (b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position: Provided, however, the driver or person in charge of such vehicle shall cause such vehicle to be removed from the roadway as promptly as possible; and if such vehicle becomes disabled after sunset, in that event, prior to the time it is removed from the highway, the driver or person in charge shall give a signal by lights or flares or both of the presence of such disabled vehicle on the highway."
The tractor-trailer was not "parked" on the highway; rather, it was stopped. It was "disabled" from continuing its course of travel due to the flat tire, but not to the extent that it could not have been moved or pulled off the paved portion of the road if it were practical to do so. We think a jury question was made as to that. The driver feared that the shoulders and dirt areas off the pavement *719 were soft and that if the rig were pulled off onto it he could not effect a tire change and that with the heavy load he would not be able to return to the highway. The jury might very well have found this to be the legitimate position of an ordinarily prudent man under the same or similar circumstances, and if so, it should have found him to be guilty of no negligence. However, there was evidence that would authorize a finding that the shoulders and other areas were sufficiently firm to hold the heavily loaded rig without a bogging down, and that it would have been practical to turn off the paved highway in several places between where the tire blew out and where the rig was finally stopped. But the question for the jury to determine was not whether it had been possible to drive the rig off the pavement for stopping, but whether it had been practical to do so, and in making that determination it was bound to apply the standard of what a reasonable man would have done under the same or similar circumstances. We find no issue as to the matter of lights on the rear of the trailer or as to visibility for a distance of at least 200 yards back of it, or whether there was sufficient unobstructed width of the highway left opposite the rig to permit free passage to the left the evidence shows all of these without contradiction. The jury was not authorized, as a matter of hindsight, or of second-guessing, to conclude that the rig should have been driven off the pavement simply because it was in fact pulled off after the accident at the policeman's request, but was required to determine the matter from the viewpoint of what a reasonable man would have done if that man had been operating the rig at the time and place and under the same or similar circumstances and with the same information (but no more) available to him that was available to Whitaker in determining his course of action.
We believe that this proposition was made clear to the jury by the judge's charge, and since a verdict was returned against Smith and Whitaker, we must conclude that the issue was resolved against them on that basis.
Of course, it was necessary that the jury go further and determine whether Whitaker's negligence in stopping the rig on the paved portion of the highway naturally combined with that of Knight to cause Nelson's injury. Again, this was made clear by *720 the judge's charge, and we must conclude that the jury resolved that, too, against them.
If the evidence authorized the jury to reach the conclusion that it did, as we conclude that it did, we should not disturb the verdict and judgment unless that is required because of some error of law. The general grounds are without merit.
2. Error is enumerated on a charge to the jury relative to the "centerline" and centerline marking of the road, in connection with his charge relative to the stopping or parking of a vehicle closer than twelve feet from the "centerline," prohibited by Code Ann. § 68-1670 (a) (15).
As we have indicated, the total width of the paved portion of the highway at this point was 36.3 feet. A white solid line for making traffic lanes was painted on the paving, making a lane twelve feet wide for traffic traveling south, and the remainder of 24.3 feet for traffic traveling north, whether going on by the Tremont Road entrance, or turning into it. The policeman testified that vehicles intending to turn left into Tremont Road were to use the portion of the road nearest the painted line, and that it was often necessary for that traffic to stop in order to allow approaching traffic (coming south) to clear the intersection, before making the left turn. Vehicles intending to go straight on northerly and over the viaduct ahead were to move to the right in order to avoid the slowing down or stopping for those who were turning left into Tremont Road, but could, of course, if they chose to do so, proceed as well in the portion nearest the painted "centerline" and go on northerly. There was no painted line indicating two lanes for the traffic patterns of those traveling northerly, whether intending to go straight ahead or to make the left turn. The portion of the paved road available to them, however, was 24.3 feet wide. Whitaker had stopped the tractor-trailer on the extreme outer portion of the paved road within three to six inches of the edge leaving for passing to the left more than sixteen feet of paved road.
The court charged that part of Code Ann. § 68-1670 (a) (15) which makes it unlawful to stop or park within twelve feet from the centerline, and in that connection charged: "In this case, as you will see by the chart, the pavement was widened at this place. What was the centerline? Was it the line that marked or demarked *721 the difference between southbound and northbound traffic? What was the centerline? Or was it a point equidistant between the edge of the pavement on one side and the edge of the pavement on the other? And if so, was the truck within twelve feet of that particular point or line? ...What this was and how it was used is for you to determine." Timely exception was made to this portion of the charge on the ground that this permitted the jury to fix and determine the location of the "centerline," and it is now enumerated as error.[1] While the exception was not in the precise terms which we once required for a bill of exceptions, it focused attention on the charge with reference to the statute relative to parking within twelve feet of the centerline, and complained that the court had told the jury that "they could decide whether it (the centerline) was [to be determined by measurement] from the edge to the edge of the pavement, and thereby determine [it to be] another line" than the one shown on the map,[2] of the highway in question. We hold that the exception made was sufficient to inform *722 the court as to the portion of the charge contended to be erroneous and of the error contended. It was thus sufficient to meet the demands of § 17 (a) of the Appellate Practice Act (Code Ann. § 70-207 (a)), and it is unnecessary that we consider whether the error is remedial under § 17 (c) of the Act (Code Ann. § 70-207 (c)). If heretofore we have, on occasion, been more restrictive than the statute our rulings should yield to the statute.
We agree that this charge was egregious error. While Code Ann. § 68-1670 (a) (15) does not prescribe where the centerline of a public road or highway is to be, it is delegated to the State Highway Board to place markings on the road or highway for the indication of traffic lanes, no-passing zones, and the like, and it is provided that users of the road or highway shall observe and obey them. Code Ann. §§ 68-1504, 68-1638. Some markings are permitted to be placed by local authorities. Code Ann. § 68-1607. While the exact question here was not presented in Pittman v. Staples, 95 Ga. App. 187, supra, the principle was certainly the same, as is indicated in "On Motion for Rehearing" in that case where it was held that the centerline of a four-lane highway having a median strip between the northbound and southbound lanes is not located at the middle of the median. In order to afford a reasonable and intelligent meaning to the statute relative to the prohibition of parking within twelve feet from the "centerline" we must relate it to the traffic lane markings. This road is basically a two-lane highway, and the line placed thereon for marking traffic lanes for northbound and southbound traffic must, for this purpose, be regarded as the "centerline." The charge was confusing, and it left the jury with the privilege of moving the centerline to some unmarked point on the highway, and since there were twelve jurors they might have had twelve ideas as to where it should be located, without any of them being correct. There must be some reasonable standard applied, and the only reasonable one that appears, absent a specific provision of the statute to the contrary, is to follow the markings which the highway or local authorities are authorized to make. Since motorists are required to observe and obey these markings, a jury should not be permitted to do otherwise in its deliberations. This was an error of gravity, for the jury may very well have concluded, under this charge, that the *723 centerline was at a point leaving less than twelve feet between it and the tractor-trailer, and thus that Whitaker had been guilty of negligence for that reason, if for no other. On another trial the charge in this respect should be clearly adjusted to the evidence.
3. Error is enumerated by Smith-Whitaker on the admission, over timely objection, of testimony of the witness Edwards that other trucks and truck-trailer rigs had, on other occasions, pulled off the pavement and stopped on the shoulders or areas beyond the shoulders in the vicinity and had been able to return to the highway without difficulty.
The question to which objection was directed was: "Do trucks ever trailer-trucks ever pull off the highway on your right of way in your property?" The objection was that this was "irrelevant in this case, what other trucks do on any occasion," and "it's too broad and fails to define for the witness the nature of the truck that was involved in this accident or the load capacity that it had on it." The objection was overruled, and the witness testified that he had seen trailer-trucks pull off the paved portion of the road (the area being along the road between where Whitaker learned that he had tire trouble and where he stopped) "maybe one a day, maybe one a week," and as to the sizes, they were "just regular trailer-trucks."
We think the objection was good and should have been sustained. It does not appear that the question or the answers made in any way related a similarity of the other instances except that the trucks were "just regular trailer-trucks." It would make a material difference whether they were of similar size, running empty or heavily loaded, as the one here involved was. Evidence offered for making comparisons should reveal similar or substantially similar conditions. Unless the essential similarity for comparison appears, the evidence should be excluded, for it may very well be harmful. Dunn v. Beck, 144 Ga. 148 (2) (86 S.E. 385); Sammons v. Webb, 86 Ga. App. 382, 388 (71 SE2d 832); McBrayer v. Ballenger, 94 Ga. App. 620, 623 (95 SE2d 718); State Hwy. Dept. v. Howard, 119 Ga. App. 298, 302 (167 SE2d 177).
Appellee contends that if this were error it was waived when the witness later testified under cross examination by counsel for Knight that "trucks with vans van-type trucks, where the van *724 could be disconnected from the engine" parked in and used the area off the highway, in front of and near his used lumber business, and that it was waived when the witness Jernigan later testified, without objection, that trucks often stopped off and parked in the area in front of and near his business trucks "of various weights; empty weights would run around 16,000 pounds and loaded weights up to 65 or 70,000 pounds," and that none of them had bogged down. It is a close question as to whether the subsequent testimony of Edwards relative to van type trucks, not objected to by counsel for Smith-Whitaker, worked a waiver, but we doubt that it should. We think this testimony was objectionable on the same grounds as his previous testimony, but since it patently referred to a different type of truck from that which Whitaker was driving we do not think it operated to waive the objection to his prior testimony concerning trailer-type vehicles. As to the evidence of Jernigan, it is obvious that when he gave the weights as to the trailer-trucks, both empty and loaded, he removed the ground which might otherwise have afforded an objection to his testimony; but that did not remove it as to the Edwards testimony.
4. The court charged that the jury should determine whether Mr. Whitaker made an emergency stop, and that they should "consider the size of the vehicle, its weight, the weight of the load, the failure of the tire and such events as might have transpired had the driver chosen a different handling of the vehicle... If there was an alternate course that he could have taken, you are to determine whether or not that course would have been safe." The italicized portion was timely excepted to on the ground that it afforded the jury, with hindsight, a right or privilege of "second-guessing" the driver and that the standard to be applied was what an ordinarily prudent man would have done in the same or similar circumstances. The court agreed that the exception was proper and recharged the jury, admonishing them that they should determine from the evidence whether Mr. Whitaker acted as an ordinarily prudent person would have done under the same or similar circumstances, and that if they should find this to be the case there would be no negligence on his part, and concluded by telling them to use the prudent person standard and "don't second-guess the driver."
*725 After several hours of deliberation the jury requested further instruction on the matter of what constituted an emergency stop.
The court charged that whether an emergency existed was a fact question, and that they should determine from the circumstances shown, whether it had been necessary for Mr. Whitaker to stop the rig, whether a continued driving of it in its condition would have been a menace to itself or to other traffic on the highway traveling in either direction, and if so, they might find an emergency to have existed; but that if they should find that the rig could have been driven further without menace to other traffic or to itself until it reached a point where it could have been pulled off the highway, the stop would not have been an emergency stop.
There was again an exception on the ground that this charge removed the reasonable man standard, as applicable to this situation and in the light of what the driver may have known about his load and the condition of the vehicle. No further charge was given, and the overruling of this exception is enumerated as error.
While the latter charge might have been couched in better language, making sure that the reasonably prudent man standard was to be applied, and that their conclusion should not be based upon the fact that the rig was, in fact, moved onto the shoulder of the road after the collision at the request of a policeman, we do not think that it confused the jury, particularly in the light of the prior charge which should be considered in connection with this one. We are confident that on another trial this will be done.
5. Thus, we find no error in Knight's appeal, but do find error demonstrated in the appeal of Smith-Whitaker. What is the result of this? In Tedlie v. Dill, 3 Ga. 104, the Supreme Court asserted, concerning a judgment against joint defendants: "A judgment, as being an entire thing, cannot be reversed in part and stand good as to the other part, or be reversed as to one party and remain good against the rest." In three other cases it was held that verdicts for separate amounts could not be rendered against joint tortfeasors. Simpson v. Perry, 9 Ga. 508; McCalla v. Shaw, 72 Ga. 458; Hunter v. Wakefield, 97 Ga. 543 (2) (25 S.E. 347, 54 ASR 438). Where some of the defendants (joint tortfeasors) were not served but judgment was obtained against all it must be set aside as to *726 all. Harralson v. McArthur, 87 Ga. 478 (2) (13 S.E. 594, 13 LRA 689). In Hunter v. Wakefield, 97 Ga. 543 (2), supra, it was held that "Where, in such a case, there is a verdict for the plaintiff against some of the defendants for a given amount, and in favor of the other defendants, there can be no new trial between the plaintiff and the latter alone; but if a new trial is granted at all, it must be granted as to all the parties." (Emphasis supplied.) The latest word from the Supreme Court on the matter is found in Southeastern Truck Lines v. Rann, 214 Ga. 813 (108 SE2d 561), where, at page 817, it was declared that "a verdict and judgment rendered against two or more joint tortfeasors is single and indivisible, and must stand or, as in this case, fall in toto." (Emphasis supplied.) This court has held: "A plaintiff can sue one or more than one, or he can sue all, of several joint tortfeasors in the same action, and the jury, by its verdict, can bind one and relieve another, as the evidence may authorize, but if the verdict be rendered against all of the defendants, the judgment thereon is single, and must stand or fall alone. Such a judgment is in law a creature of such nature that it cannot survive the severance or amputation of any one of its members." Finley v. Southern R. Co., 5 Ga. App. 722 (3) (64 S.E. 312). Accord: Crowe v. Fisher, 104 Ga. App. 725 (122 SE2d 755); Fulghum Industries v. Pollard Lbr. Co., 106 Ga. App. 49, 53 (126 SE2d 432). If, as both courts have held, the judgment is entire and indivisible, it would seem that any striking down of it, or the reversal of it as to any party defendant, would, ipso facto, work a reversal of the whole and as to all parties, and this is generally true.
By some metaphysical reasoning a way has been found in some of our cases to divide the indivisible. The Supreme Court refused to attempt it, however, in Hunter v. Wakefield, 97 Ga. 543, supra, and dismissed the bill of exceptions because two of the defendants against whom the judgment had been rendered were not parties to the bill of exceptions and "no judgment we might render could in any way disturb that verdict, so far as they are concerned." We began to "divide the indivisible" when, in Thomas v. Barnett, 107 Ga. App. 717 (131 SE2d 818) (cert. den.) we reversed as to one defendant, and in Smith v. Barnett, 107 Ga. App. 849 (132 SE2d 139) (cert. den.) affirmed as to another, each having filed a separate *727 motion for new trial and having separately appealed from denials thereof. But the result was rectified in Smith v. Barnett, 109 Ga. App. 142 (135 SE2d 435) (cert. den.) where we held that as to the parties whose appeal had resulted in an affirmance it was mandatory that the trial court grant a motion by them to vacate and set aside the judgment.
There were repeat performance in Bracewell v. Bracewell, 111 Ga. App. 759 (143 SE2d 10) (cert. den.) and Couey v. Bracewell, 111 Ga. App. 760 (143 SE2d 7) (cert. den.), and in Mullis v. Chaika, (also Brown v. Chaika), 118 Ga. App. 11, 22 (162 SE2d 448) where separate appeals by the defendants were considered together and we reversed as to one and affirmed as to the other. The posture in those cases was identical to that now before us merit was found in one appeal but not in the other. It was pointed out that the defendant in the appeal where the judgment was being affirmed could nevertheless obtain a new trial by application to the trial court.
Pragmatically it probably makes no difference whether we follow the doctrine of Southeastern Truck Lines v. Rann, 214 Ga. 813, supra, and of Finley v. Southern R. Co., 5 Ga. App. 722 (3), supra, and hold that a reversal on the Smith-Whitaker appeal carries with it a setting aside of the judgment as to Knight, or again proceed with an esoteric division of the indivisible, affirming in the Knight appeal and reversing in the Smith-Whitaker appeal, but pointing out that it will, nevertheless, be mandatory that the trial court set the judgment aside as to all defendants upon appropriate motion after a return of the remittiturs. Cf. Ga. Power Co. v. Rabun, 111 Ga. App. 63, 71 (140 SE2d 568).
Every dictionary which we have consulted defines indivisible as that which is not capable of being separated or divided. A better definition of the word, as it refers to the judgment here, is hardly to be found than that in Finley v. Southern R. Co., 5 Ga. App. 722 (3), supra, and we can see no difference in the meaning there expressed and that found in the expression of the Supreme Court in Southeastern Truck Lines v. Rann, 214 Ga. 813, supra. If, then, the judgment is indivisible, it must follow as night the day that our reversal of the Smith-Whitaker appeal results in a reversal *728 also on the Knight appeal.[3] In any event, the parties to both appeals are before this court and we should make a legal disposition of the matter. An attempt to divide the indivisible and shift to the trial court a portion of the responsibility for giving the coup de grace to the judgment is chimerical.
Judgment reversed in both appeals. Hall, P. J., and Whitman, J., concur.
NOTES
[1] The exception, as reflected in the record, was: "Now I also want to call the court's attention to another proposition that I think Your Honor charged incorrectly to the jury, but maybe I didn't understand it. When you were charging the jury with reference to the twelve-foot statute, parking twelve feet from the centerline of the road, you told the jury that they would be permitted to look at the lane under the evidence and find out what the line was. I think you were referring to the ones drawn on the map showing the centerline. I believe The Court: Was that Mr. Brannen: And I think you went on and told them this, and this is what I am talking about. I can be wrong but my impression was and recollection is that after having told them that, you went on to tell them that they could decide whether it was from the edge to the edge of the pavement and thereby determine another line, but I don't think you told them that they could determine either line. I could have misunderstood the court, but that is my recollection."
[2] An engineer's or surveyor's map, drawn to scale, on which the portion of the highway whereon the incident occurred is shown, with the lane lines as painted thereon by the highway authorities, was in evidence.
[3] A more accurate way of stating the rule, perhaps, is that where the jury is authorized to find joint liability if a new trial is to be granted to one the indivisible character of the judgment requires that it be granted to all; but if there is a finding of no liability as to one defendant, a reversal as to him does not require a new trial as to others. In Austin v. Appling, 88 Ga. 54 (6) (13 S.E. 955) three defendants were sued in tort as partners. There was ample evidence to sustain the verdict as to one, but a total failure of proof of the existence of the partnership, hence of liability, as to the others. The judgment was affirmed as to the one and reversed with direction that the action be dismissed as to the others. In Louisville & Nashville R. Co. v. Peeples, 136 Ga. 448 (71 S.E. 805) the section boss and the railroad were joined as tortfeasors. The proof utterly failed to show that the section boss had acted within the scope of his employment, but there was ample proof of his wrongful action. The judgment was affirmed as to him but reversed as to the railroad. A similar result appears in Western Union Telegraph Co. v. Owens, 23 Ga. App. 169 (98 S.E. 116), where suit was brought against Western Union, Southern Bell Telephone, and Georgia Northern Railway as joint tortfeasors. The proof authorized a verdict against Western Union and Georgia Northern, but not against Southern Bell; it was not a joint tortfeasors. The same was true in Greenfield v. Watson, 54 Ga. App. 9 (187 S.E. 183), in Gray v. Watson, 54 Ga. App. 885 (189 S.E. 616), Durden v. Maddox, 73 Ga. App. 491, 493 (37 SE2d 219); and Wrigley v. Nottingham, 111 Ga. App. 404 (141 SE2d 859), reversed on other grounds in 221 Ga. 386 (144 SE2d 749). In Adamson v. McEwen, 12 Ga. App. 508 (77 S.E. 591) suit was brought against four people as joint tortfeasors to recover for the injuring of a mule by an automobile in which defendants were riding. The jury found against three of them, and absolved one. The three jointly moved for a new trial. It was denied and on appeal it was held that the proof authorized the verdict as to one, who controlled the car, and as to another who operated the car as chauffeur, but that it demanded a finding that the third was a mere guest in the car against whom no liability could attach. There was an affirmance as to the two, but a reversal as to the guest.
In any event, however, the judgment is to be reversed as to all parties when the appellate court finds that "The whole case is so confused and interwoven, the legal with the illegal, that the only course open in order for all parties to have their day in court and their rights, whatever they are, adjudicated, is to reverse the judgment of the court below and order a new trial." Brown v. Tomberlin, 137 Ga. 596, 601 (73 S.E. 947).
The rule is different, of course, where from the nature of the action the judgment is severable, as for example, an action on a contract which is itself not entire in nature. Chicago Bldg. &c. Co. v. Butler, 139 Ga. 816, 819 (78 S.E. 244); Crooker v. Hamilton, 3 Ga. App. 190 (59 S.E. 722). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329962/ | 256 S.C. 364 (1971)
182 S.E.2d 732
The STATE, Respondent,
v.
James V. DeANGELIS, Appellant.
19252
Supreme Court of South Carolina.
July 8, 1971.
*365 Messrs. Patrick E. Treacy and Jack McGuinn, of Columbia, for Appellant.
*367 Philip Wingard, Esq., Sol. of Greenville, for Respondent.
July 8, 1971.
MOSS, Chief Justice.
At the 1970 May Term of the General Sessions Court for Lexington County, a jury was duly empaneled and sworn to try James V. DeAngelis, the appellant herein, on an indictment charging him with receiving stolen goods. There were two other indictments pending charging him with receiving stolen goods, and a fourth and fifth indictment charging him, along with others, with receiving stolen goods and a conspiracy to commit the crime of receiving stolen goods. A sixth indictment charged the appellant, along with two others, with committing the crimes of housebreaking, safecracking and grand larceny.
Prior to proceeding with the trial, the appellant's retained counsel requested and were granted time to discuss with their client the possibility of entering guilty pleas to the several indictments against him. Thereafter, these attorneys made various offers for a negotiated plea and sentence, exclusive of any plea to the indictment charging the crimes of housebreaking, safecracking and larceny. After further lengthy negotiations, the appellant, through his retained counsel, offered to enter a plea of guilty on each of the six pending indictments and would accept a sentence of sixty years, provided he would not have to serve over three years before being placed on probation, and further that the indictment charging him with housebreaking, safecracking and larceny be amended to charge the crime of accessory after the fact to housebreaking and grand larceny. The State agreed and recommended to the trial judge that the six pleas of guilty be accepted upon the terms above stated.
Prior to the acceptance of the pleas of guilty the trial judge personally conducted an examination of the appellant, with a stenographic record thereof being made by the court reporter, to determine whether the pleas were being made voluntarily and with the understanding of the nature of the *368 charges, the consequences of the pleas and the rights necessarily abandoned by such pleas. We quote the following from the record:
"THE COURT: With reference to these six indictments, more particularly with reference to each of your six pleas, I ask you this question. Do you enter each plea freely and voluntarily?
"THE DEFENDANT: Yes, sir.
"THE COURT: Do you understand that you have a right, with reference to each of these charges, to plead not guilty and be tried by a jury?
"THE DEFENDANT: Yes, sir.
"THE COURT: Understanding that, do you still wish these pleas of guilty to stand?
"THE DEFENDANT: Yes, sir.
"THE COURT: With reference to each plea, I ask you are you guilty of that which you have plead guilty to?
"THE DEFENDANT: Yes, sir.
* * *
"THE COURT: Before we start, let me ask the prisoner this. Are you represented by attorneys?
"THE DEFENDANT: Yes, sir.
"THE COURT: Are they your own employed lawyers?
"THE DEFENDANT: Yes, sir.
"THE COURT: Have you discussed these charges with them?
"THE DEFENDANT: Yes, sir.
"THE COURT: Are you satisfied that they are competent to represent you?
"THE DEFENDANT: Yes, sir."
The court sentenced the appellant in the aggregate to a term of twenty years, provided that upon the service of three years the balance of his sentence would be suspended and he would be placed on probation for five years. The appellant was given one hundred and twenty days within which to arrange his business affairs before he commenced the service of his prison term.
*369 In August, 1970, the appellant made a motion for a new trial upon the ground of after-discovered evidence. This motion was denied by the trial judge on the ground that the aforesaid pleas of guilty had been initiated and negotiated by the appellant and that the affidavits offered in support of the motion failed to establish any after-discovered evidence. The appellant prosecutes this appeal from such order.
It appears from the record that the guilty pleas of the appellant and the sentence imposed were the result of plea bargaining. Plea bargaining has been approved by the United States Supreme Court in the case of Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L.Ed. (2d) 747. In the cited case it was held that the defendant was not entitled to withdraw his guilty plea merely because he discovers long after the plea had been accepted that he misapprehended the quality of the State's case.
The primary question for determination is whether the trial judge committed error in not granting the motion of the appellant for a new trial made on the ground of after-discovered evidence.
The courts do not look with favor upon applications for new trials on the ground of after-discovered evidence, as there must be an end to litigation in any case; however, there are cases that motions of this character should be entertained and granted in order that wrongs done may be remedied. State v. Augustine, 131 S.C. 21, 126 S.E. 759. It is the fixed rule that the credibility of newly-discovered evidence offered in support of a motion for a new trial is a matter for determination by the circuit judge to whom it is offered. In him, not this court, resides the power to weigh such evidence; and, his judgment thereabout will not be disturbed except for error of law or abuse of discretion. State v. Parker, 249 S.C. 139, 153 S.E. (2d) 183.
The appellants motion for a new trial was based on three affidavits, one by Donald Edward Crain, Sr., one by Johnny *370 Rogers Ford, and one by his counsel. The appellant did not submit his own affidavit in support of his motion.
The sixth indictment, hereinbefore referred to, initially charged that on or about October 24, 1969, the appellant along with Joseph Scheibler and John Havekost, with a conspiracy to commit housebreaking, grand larceny and safecracking in that they did, pursuant thereto, on or about October 24, 1969, break into the West Columbia Post Office and did take certain money therefrom, using an acetylene torch and other tools to enter the safe of said post office. This indictment, insofar as the appellant was concerned, was amended so as to charge him with the crime of accessory after the fact to housebreaking and grand larceny. It was to this amended charge that the appellant entered a plea of guilty. Crain, by his affidavit, stated that on or about October 25, 1969, that he along with Joseph Scheibler, Moon Mullins and one Martin, did break into the West Columbia Post Office and take from the safe therein certain moneys. Crain's affidavit made no mention of the appellant.
Johnny Rogers Ford in his affidavit stated that he and Joseph Scheibler were arrested and charged with grand larceny and subsequently they pled guilty thereto and were sentenced to prison. He further stated that he had seen the appellant only one time and did not know of his own knowledge of any crimes that he had committed. With reference to the appellant, Ford further stated in his affidavit, in substance, that Joe Scheibler said that if DeAngelis would give him $600.00 to pay his way out on bond that he wouldn't testify against him but if he did not comply with his request he was going to get him into trouble.
One of the retained attorneys for the appellant made an affidavit in which he stated that since the time the pleas of guilty were entered by the appellant that he "is now in possession of after-discovered evidence indicating innocence on the part of the said defendant and evidence that would appear *371 to operate as a defense to various indictments upon a trial by jury." He further stated that this evidence was not available and did not become available to him until after the date of the trial.
The trial judge, on September 12, 1970, denied the motion of the appellant for a new trial based on after-discovered evidence, holding that the affidavits offered with the motion failed to establish any after-discovered evidence. There is printed in the transcript of record affidavits and sworn statements of Joseph F. Scheibler, Theresa Scheibler and Richard S. Austin. All of these affidavits were given, as shown by their dates, several months after the motion of the appellant had been denied by the trial judge. We cannot consider these affidavits because they were filed after the trial and hence could not have been considered by the trial judge. 5 Am. Jur. (2d), Appeal and Error, Sec. 736, page 180.
As is heretofore stated, the appellant did not file his own affidavit setting forth the after-discovered evidence and the facts to which the witnesses will testify. It is essential to the consideration of a motion for a new trial based on after-discovered evidence that such motion shall be supported by an affidavit of the accused himself. Unless a valid and sufficient reason for the omission to file such an affidavit is shown, the affidavit of the accused must show that he did not know of the existence of such evidence at the time of the trial and that he used due diligence to discover such evidence, or that he could not have discovered it by the exercise of due diligence. An affidavit of the appellant's counsel showing these matters is not sufficient. 24 C.J.S. Criminal Law § 1484c, page 286. Chilton v. Commonwealth, 170 Ky. 491. 186 S.W. 191. Nothaf v. State, 91 Tex. Cr. R. 378, 239 S.W. 215, 23 A.L.R. 1374.
Viewing the record in this case in the light of the affidavit made in support of the motion and in the light of the foregoing principles of law, we find no abuse of discretion, *372 amounting to an error of law, on the part of the trial judge in refusing the motion of the appellant for a new trial based on after-discovered evidence.
The appellant charges the trial judge with error in taking the pleas of guilty without ascertaining that the appellant had, in fact, committed the acts which constituted the crimes alleged in the indictments. There is no merit in this contention. The trial judge had before him not only the pleas of guilty by the appellant but a full statement of the investigating officer as to the facts. Additionally, the appellant did not assert this position before the trial judge and it is not properly before us for decision.
The exceptions of the appellant are overruled and the judgment of the lower court is,
Affirmed.
LEWIS, BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2897473/ | NO. 07-08-0124-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 16, 2008
______________________________
GILBERT ALEXANDER PEREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 18847-B; HONORABLE JOHN B. BOARD, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Following a plea of not guilty, Appellant, Gilbert Alexander Perez, was convicted by
a jury of possession of a controlled substance. On February 5, 2008, a sentence of two
years confinement in a state jail facility and a $5,000 fine was imposed. No motion for new
trial was filed and Appellant’s notice of appeal was filed on March 19, 2008. We dismiss
for want of jurisdiction.
A notice of appeal is due to be filed with the trial court clerk within thirty days after
the day sentence is imposed. See Tex. R. App. P. 26.2(a)(1). The deadline may be
extended if, within fifteen days, the party files the notice in the trial court and a motion in
this Court complying with Rule 10.5(b)(2) of the Texas Rules of Appellate Procedure. See
Tex. R. App. P. 26.3. When a notice of appeal and a motion for extension of time are filed
within the fifteen-day window, the motion must provide a reasonable explanation for the
delay. See Tex. R. App. P. 10.5(b)(1)(C). A reasonable explanation is “any plausible
statement of circumstances indicating that failure to file within the [required] period was not
deliberate or intentional, but was the result of inadvertence, mistake or mischance.” See
Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977). See also Garcia v. Kastner
Farms, Inc., 774 S.W.2d 668, 669-70 (Tex. 1989).
Appellant’s sentence was imposed on February 5, 2008. No motion for new trial
having been filed, the deadline in which to file the notice of appeal was March 6, 2008, or
applying the fifteen day extension, March 21, 2008, if a motion reasonably explaining the
reason for the delay accompanied the notice. On March 19, 2008, Appellant filed his
notice of appeal in the trial court and a Motion for Extension of Time to File Notice of
Appeal in this Court. By the motion, however, Appellant’s counsel did not offer any
2
explanation at all for the untimely filed notice of appeal. He merely provided relevant dates
and expressed Appellant’s desire to appeal his conviction.
By letter dated April 7, 2008, counsel for Appellant was notified of the defect and
directed to provide a reasonable explanation for the need for an extension of time no later
than April 18, 2008, noting that failure to comply might result in dismissal.1 In response,
on April 11, 2008, Appellant filed his First Amended Motion for Extension of Time to File
Notice of Appeal. The facts relied on for the extension are:
(1) [t]he Appellant’s appointed trial counsel did not perfect an appeal of the
Appellant’s cause within thirty (30) days although it was the Appellant’s
stated desire to appeal the trial and judgment in this cause as personally
stated to the undersigned counsel during an interview of March 19, 2008;
further
(2) [w]ithout an extension of time given to the Appellant under Rules
10.5(b)(2) and 26.3, Texas Rules of Appellate Procedure, the Appellant will
be denied his right to both legally review and contest the trial proceedings
which sentenced him to the maximum term of confinement, i.e., two (2)
years, in a State Jail Facility.
By the amended motion, Appellant’s counsel has not provided a plausible statement
indicating that failure to timely file the notice of appeal was not deliberate or intentional, but
was the result of inadvertence, mistake, or mischance. Without such explanation, we are
without jurisdiction to dispose of the appeal in any manner other than by dismissal for want
of jurisdiction. See Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996). See also
1
Rule 44.3 of the Texas Rules of Appellate Procedure requires a reasonable time
to correct or amend formal defects or irregularities in appellate procedure before dismissing
an appeal.
3
Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Crim.App. 1998). Additionally, we do not
have authority to invoke Rule 2 of the Texas Rules of Appellate Procedure in an effort to
obtain jurisdiction of the case. We cannot create jurisdiction where none exists. Slaton,
981 S.W.2d at 210.
Consequently, the appeal is dismissed for want of jurisdiction.2
Per Curiam
Do not publish.
2
Appellant may have recourse by filing a post-conviction writ of habeas corpus
returnable to the Texas Court of Criminal Appeals for consideration of an out-of-time
appeal. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2007)
4 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1755234/ | 724 N.W.2d 704 (2006)
2006 WI App 244
STATE
v.
GUMIENY[1]
No. 2006AP1001-CR
Wisconsin Court of Appeals
October 24, 2006.
Affirmed.
NOTES
[1] Petition for Review Filed | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/264150/ | 331 F.2d 204
UNITED STATES of America, Appellee,v.Leonid TANKEL, Appellant.
No. 401, Docket 28582.
United States Court of Appeals Second Circuit.
Argued April 8, 1964.Decided April 27, 1964.
Heffner & Block, New York City, for appellant. Frederick H. Block, Daniel H. Greenberg, David Kessler, New York City, of counsel.
Robert C. Zampano, U.S. Atty., Anthony G. Apicella, Asst. U.S. Atty., for appellee.
Before SWAN, MOORE and SMITH, Circuit Judges.
SWAN, Circuit Judge:
1
The sixteen count indictment charged appellant and a corporation he owned (hereafter 'General Parcel') with use of the mails in violation of 18 U.S.C.A. 1341. The appellant and his corporation were tried without a jury before Judge Anderson, who made detailed findings of fact, followed by a discussion of legal issues. He acquitted the defendants on seven counts and found them guilty on nine.
2
Appellant was sentenced to imprisonment for two years on each of the nine counts, to run concurrently; but execution of the sentence was suspended as to all but four months, to be followed by four years' probation. A nominal fine was imposed on General Parcel, and it has not appealed.
3
The appellant presents three contentions: (1) insufficiency of the evidence to prove guilt beyond a reasonable doubt; (2) inconsistency between acquittal on some counts and conviction on the others; and (3) fatal variance between the crime charged and the proof. For reasons hereafter stated we hold none of appellant's contentions sustainable, and affirm the judgment.
4
In 1957 Tankel formed General Parcel to engage in the business of sending gift parcels from customers (senders) in the United States to Russian residents. The main office of General Parcel was in New York City. Branch offices were established in several other cities, including Hartford, Connecticut.
5
General Parcel made a contract with Intourist, the government agency concerned with gift parcels to Russian residents, pursuant to which General Parcel was to collect from the American senders the Russian customs duty and the Intourist service charge, as well as its own fee and certain other charges. It was authorized to issue the license which must accompany the parcel, and was required to report monthly the number of licenses issued, and to remit to Intourist by the tenth of the following month the amount owed.
6
The customary procedure when a sender brought a gift parcel to a branch office was as follows: the branch prepared a work sheet listing the contents of the parcel, its cost and weight, the customs duty, Intourist fee, General Parcel's fee, the United States postal charge and the fee for insuring the parcel. The sender paid this total sum to the branch, receiving a copy of the worksheet as his receipt.1 The branch mailed the worksheet to the main office with a check for deposit in General Parcel's account. The license was then prepared and mailed to the branch office, which then mailed the parcel to the addressee in Russia, with the license inclosed therein.
7
In March or April 1959 Tankel changed the above described customary procedure because General Parcel lacked funds to pay for the previously issued licenses. Instead of disclosing this condition to Intourist or ceasing to accept new parcels, he caused General Parcel to commence underreporting the amount of licenses issued-- selecting arbitrarily the amount to be reported.
8
By December 1960 General Parcel owed Intourist $158,000 for customs duties and service fees.2 On February 17, 1961 Intourist cabled 'Clearing your parcels is stopped until you repay your debt to Intourist. Beginning February 20th please discontinue issuing licenses and inform us by cable number of last issued invoice.' Apparently Tankel did not believe that Intourist would enforce the literal terms of the cable, and it did not. But any optimism Tankel may have entertained that he could continue to do business with Intourist could not reasonably exist after receipt of the cable of May 23, 1961. This informed him that money sent for April had been applied against the December indebtedness, therefore the licenses issued in April are unpaid, the customs would not let the packages go through and they were being sent back. The cable also demanded payment of $75,000 in June.
9
During June 500 parcels were returned to the Post Office in New York City. By September 1963 approximately 8,000 had been returned to General Parcel's main office and branch offices.
10
All of the nine counts on which Tankel was convicted concerned parcels mailed during the month of June 1961 (Findings 45-58). The sums paid by the senders were mailed by the Hartford branch to the main office, where they were cashed, and the proceeds used as Tankel directed (Finding 59), and not used to pay customs duties on parcels shipped from that branch (Finding 60), and 'The defendants knew that the money so received by them could not and would not be used to pay the customs duties for the several parcels of the customers' (Finding 61).3
11
It is true that it must be shown that the mails were used as part of the fraudulent scheme, and as to each letter relied upon, that the particular letter was not sent out until after a scheme to defraud had been born. United States v. Buckner, 2 Cir., 108 F.2d 921, 925. The foregoing statement of facts demonstrates that this test was met as to the mailings involved in the nine counts on which the defendants were convicted. Appellant's point (1) is invalid.
12
It is also true, as argued in appellant's point (2), that inconsistent verdicts rendered by a judge sitting without a jury cannot be sustained. United States v. Maybury, 2 Cir., 274 F.2d 899. In acquitting defendants on the counts involving mailings before June 1961 the district judge generously gave them the benefit of every doubt. But it is obvious from what we have already said that in June the defendant's information was more complete than it was before that date.
13
The prior discussion also disposes of point (3) as to variance between the indictment and the proof.
14
Judgment affirmed.
1
The worksheet contained the following: 'I understand and agree that General Parcel & Travel Co., Inc. in good faith, and in accordance with its arrangements with Intourist, Ltd., undertakes to ship the above merchandise to the addressee * * *'
2
By the end of January 1961 the reported licenses had accumulated to about 5,000 and the debt to Intourist was more than $200,000
3
See United States v. Kyle, 2 Cir., 257 F.2d 559, 564, cert. den. 358 U.S. 927, 79 S. Ct. 312, 3 L. Ed. 2d 301, where we said that 'The conscious knowing intent to defraud' is one of 'the two essential elements of the mail fraud statute.' | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2276089/ | 58 Cal. Rptr. 3d 141 (2007)
149 Cal. App. 4th 1353
ROSSCO HOLDINGS INC. et al., Plaintiffs and Respondents,
v.
BANK OF AMERICA, etc., et al. Defendants and Appellants.
No. B189963.
Court of Appeal of California, Second District, Division Three.
April 19, 2007.
As Modified on Denial of Rehearing May 11, 2007.
*142 Katten Muchin Rosenman, Stuart M. Richter, Marlyn M. Gates and Ryan J. Larsen, Los Angeles, for Defendants and Appellants.
L.M. Ross and Leonard M. Ross; Michelman & Robinson, Dean B. Herman and Catherine L. Rivard, Encino, for Plaintiffs and Respondents.
CROSKEY, J.
One party to a litigation moved to compel arbitration. The trial court judge granted the motion and the case proceeded to completion. Thereafter, the parties filed cross-petitions to vacate and confirm *143 the arbitration award. At this point, the judge disqualified himself, due to previous conversations with dispute resolution providers regarding possible employment, which conversations had occurred prior to the judge's initial ruling on the motion to compel arbitration. The case was transferred to a new judge. The unsuccessful party at the arbitration moved to vacate the trial court's earlier ruling compelling arbitration, based on the first judge's apparent disqualification to issue that order. The trial court granted the motion, and issued an order vacating not only the order compelling arbitration, but the arbitration award itself. The party successful at the arbitration appeals. We conclude the trial court did not err in vacating the order compelling arbitration, but that it was premature to vacate the arbitration award. We reverse and remand with directions for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
While the issues underlying the parties' dispute are complex, the factual and procedural history leading to this appeal is undisputed. On January 24, 2004, Rossco Holdings Incorporated, Leonard M. Ross Revocable Trust and Leonard Ross (collectively "Ross") filed this action against Bank of America, NT & SA, two of its employees, and related entities (collectively "Bank"). The complaint stated 22 causes of action in tort and contract arising out of various complex and high-value financial transactions.[1]
On February 25, 2004, the Bank moved to compel arbitration or judicial reference, based on arbitration clauses contained in some of the transaction documents. A hearing was held on March 19, 2004, before the Honorable Alexander Williams, III. At one point in the hearing, Judge Williams disclosed that his father-in-law might have known Ross; none of the parties suggested this would require Judge Williams's disqualification.[2] After hearing argument, the court granted the motion compelling arbitration or reference. Given the court's ruling, Ross indicated a preference for arbitration. The court also offered to consider a reasonable stay to permit appellate review; Ross declined. The court directed the parties to work out the details of the arbitration and did not dictate or recommend to the parties as to their selection of an alternative dispute provider. On April 4, 2004, the parties stipulated to arbitration before a three-judge panel at JAMS. The case proceeded to arbitration.
While the arbitration was pending, Judge Williams was asked to resolve one additional issue. Ross had moved to use funds available under a line of credit implicated in the action to pay obligations on another agreement also implicated in the case.[3] Judge Williams indicated that he did not think Ross had met his burden under California law for a preliminary injunction, and also believed "more fundamentally that this court lacks jurisdiction to grant that [relief] because the case has been sent to arbitration." The court denied the motion and "le[ft] the matter to the arbitrator." During the course of the hearing, Judge Williams remarked that *144 Ross made an alternative argument based on New York law, and Judge Williams rejected the argument stating, "I am not a New York court."[4]
On December 22, 2004, while the arbitration was pending, Division Five of the Second Appellate District issued a published opinion in a case entitled Hartford Casualty Insurance Company v. Superior Court (Dec. 22, 2004, B176439).[5] The Hartford opinion interpreted Code of Civil Procedure section 170.1, subdivision (a)(8), which provides that a judge is disqualified from ruling on a matter enforcing an arbitration agreement if the judge has, within the past two years, participated in discussions regarding prospective employment as a dispute resolution neutral. The Hartford court concluded the unambiguous language of the statute mandated disqualification of a judge who met its terms, even if the judge's discussions regarding prospective employment were "superficial." Judge Williams had previously had discussions regarding prospective employment as a dispute resolution neutral, which had commenced in May 2003. Until the Hartford opinion, however, he had missed the significance of those discussions to his ability to rule on matters relating to arbitration.[6] After the Hartford case highlighted the statute, Judge Williams became aware of the issues it raised, and "addressed it in a number of cases," Judge Williams did not, however, make an immediate disclosure to the parties in this case.[7] Supreme Court review of Hartford was granted on March 23, 2005.
Meanwhile, the arbitration proceeded. On October 18, 2004, Ross filed a first amended complaint in the arbitration, which encompassed 16 causes of action. The Bank was granted leave to' file a cross-complaint in the arbitration. A discovery order allowed each party to conduct 60 hours of deposition discovery. Document discovery was also conducted. Numerous pretrial motions were resolved by the arbitrators, including demurrers, discovery motions, a motion for summary judgment, and a motion to exclude witnesses. A two-week arbitration hearing was held, resulting in an interim award on February 28, 2005, and a final award on July 15, 2005, both in favor of the Bank.[8] In sum, the arbitration process consumed more than a year, and resolved numerous factual and legal issues disputed by the parties. According to the arbitrators, this was a "high stakes" case that was "vigorously litigated" by both sides. Indeed, the *145 Bank's award of prevailing party attorney's fees exceeded $700,000. The arbitrators noted that the parties agreed the transaction was governed by New York law, and indicated that they applied New York law, but used California law where there was no meaningful difference between the two. On August 1, 2005, Ross filed a petition to vacate the arbitration award.[9] On August 4, 2005, the Bank responded with a motion to confirm the award. Both were set for hearing on August 26, 2005.
A tentative ruling was prepared. When Judge Williams was preparing for calendar the day before, he realized that this was one of his cases that was implicated by Code of Civil Procedure section 170.1, subdivision (a)(8).[10] At the hearing on August 26, 2005, the court immediately disclosed the prior discussions. The court stated, "I am disclosing to you all that I have, in the last two years, participated in discussions regarding prospective compensated employment for service as a dispute resolution neutral. [¶] Such discussions commenced back in May of 2003."[11] Judge Williams went into no further detail on the scope of his discussions. However, it is apparent from the plain language of his disclosure that the discussions were not merely superficial, but commenced in May of 2003 and continued until, at least, August 26, 2003.[12]
Judge Williams also explained the controlling statute, and discussed the Hartford opinion. Judge Williams strongly disagreed with the Hartford opinion and the relevant statute, calling it a "ridiculous law that basically disqualifies not for reasons of actual conflict by virtue of having some contact with the parties before you, but by virtue of having contact with an industry." Judge Williams noted that Hartford was presently on review to the Supreme court, and that there were bills pending to amend the statute, but acknowledged that Code of Civil Procedure section 170.1, subdivision (a)(8) was still controlling law by which he was bound. While Judge Williams normally gives the parties an opportunity to consider waiving any disqualification, Judge Williams correctly suspected that Ross *146 would decline to do so.[13] The Judge suggested the possibility that one of the parties might argue that the statute does not apply, but no argument to that effect was forthcoming. Ultimately, Judge Williams disqualified himself, and indicated to the parties that the question of whether he was disqualified when he made earlier rulings "is an issue that has to be addressed" before a new judge. The case was then transferred to the Honorable Mary Thornton House. The Bank did not attempt to challenge the disqualification order by petition for writ of mandate.
Ross moved to vacate the order compelling arbitration, in light of the fact that Judge Williams had engaged in conversations regarding prospective employment as a dispute resolution neutral prior to his ruling on the motion to compel arbitration, and was therefore disqualified when he entered the order. The Bank responded with a motion to stay the action until the Supreme Court's opinion in the Hartford case, and the enactment of then-pending legislation to amend Code of Civil Procedure section 170.1, subdivision (a)(8). The trial court granted the motion to stay.
Effective September 22, 2005, the legislature amended Code of Civil Procedure section 170.1, subdivision (a)(8) as an urgency matter. The stated purpose of the amendment was "to construe and clarify the meaning of existing law and to reject the interpretation given to the law in [Hartford]." (Stats.2005, Ch. 332, § 2.) As pertinent to this case, the amendment added a definitional subdivision to Code of Civil Procedure section 170.1, subdivision (a)(8), which explains that, "`[participating in discussions' or `has participated in discussion' means that the judge solicited or otherwise indicated an interest in accepting or negotiating possible employment or service as an alternative dispute resolution neutral or responded to an unsolicited statement regarding, or an offer of, such employment or service by expressing an interest in that employment or service, making any inquiry regarding the employment or service, or encouraging the person making the statement or offer to provide additional information about that possible employment or service. If a judge's response to an unsolicited statement regarding, a question about, or offer of, prospective employment or other compensated service as a dispute resolution neutral is limited to responding negatively, declining the offer, or declining to discuss such employment or service, that response does not constitute participating in discussions."[14] (Code Civ. Proc., § 170.1, subd. (a)(8)(B)(i).) On November 16, 2005, the Supreme Court dismissed review in Hartford, in light of the amendments to Code of Civil Procedure section 170.1.
On January 5, 2006, Bank moved for reconsideration of the order that Judge Williams was disqualified, based on the amendments to the statute.[15] In other words, Bank sought a judicial redetermination that Judge Williams should not have been disqualified, in light of the new law. The trial court set all pending motions for hearing on the same date.
*147 At the hearing, on February 14, 2006, counsel for the Bank represented that it had contacted Judge Williams by letter to ask him to clarify the nature and extent of his conversations regarding prospective employment as a dispute resolution neutral; Judge Williams had not responded. In the absence of any actual indication that Judge Williams's conversations were of the sort that would have been disqualifying under Hartford but not disqualifying under the amendment to Code of Civil Procedure section 170.1, subdivision (a)(8), the Bank asked the court to infer this conclusion from Judge Williams's statements at the hearing where he recused himself.
The trial court took the matter under submission. Ultimately, the court concluded that Judge Williams's recusal had to stand. The court stated that there was "no evidence before the court which would support a determination that there was no actual conflict, no basis for recusal, and no good cause to set aside the order compelling arbitration. Judge Williams recused himself on the basis that the law required him to do so." Further concluding that a judge's disqualification arises when the facts of disqualification exist, not when the judge becomes aware that those facts constitute a legal basis for disqualification, the court determined Judge Williams's order compelling arbitration was entered at a time when he was disqualified, and was therefore void. As the arbitration arose from a void order compelling arbitration, the trial court also vacated the arbitration award. The Bank filed a timely notice of appeal.[16]
ISSUES ON APPEAL
On appeal, the Bank argues that: (1) Judge Williams was not disqualified under the amendment to Code of Civil Procedure section 170.1, subdivision (a)(8), so his order compelling arbitration should stand; (2) Even if Judge Williams's disqualification was proper, his order compelling arbitration should not be set aside in the absence of good cause to do so, and there was no good cause in the absence of actual bias; and (3) Code of Civil Procedure section 170.1, subdivision (a)(8), in either incarnation, is unconstitutionally vague. We conclude the first two arguments are meritless and the third not cognizable in this appeal. We therefore uphold the trial court's ruling vacating the order compelling arbitration. However, we conclude the vacation of the arbitration award itself is not a necessary consequence of the vacation of the order compelling arbitration, and remand for further proceedings.
DISCUSSION
1. Judge Williams Was Properly Disqualified
The Bank argues that Judge Williams's order compelling arbitration should not have been vacated as, in retrospect, it appears that Judge Williams would not have been disqualified under the amendments to Code of Civil Procedure section 170.1, subdivision (a)(8).[17] In *148 short, the Bank argues that: (1) Judge Williams indicated no actual bias; (2) Judge Williams believed Hartford was a "ridiculous decision" because it disqualified judges who lacked actual bias; and (3) the legislature amended Code of Civil Procedure section 170.1, subdivision (a)(8), because it likewise agreed that Hartford was ridiculous. The Bank vastly overstates its case. Code of Civil Procedure section 170.1 does not disqualify only those judges who have actual bias; it disqualifies judges in situations where the legislature has presumed bias, or the appearance of possible bias, may exist. (See Code of Civil Procedure section 170.1, subd. (a)(6)(A)(iii) [disqualifying a judge if a "person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial"].) Moreover, while both Judge Williams and the legislature apparently disagreed with Hartford, there is no indication that their criticisms of the Hartford decision were identical. Indeed, the record suggests that they were not. For example, Judge Williams disagreed with Hartford and Code of Civil Procedure section 170.1, to the extent that they both disqualified a judge by virtue of contact with the dispute resolution "industry," rather than contact with someone involved in the case. ` Yet even after the legislature amended Code of Civil Procedure section 170.1 to eliminate from its scope certain nondisqualifying contacts, the statute continued to disqualify judges who have had substantial negotiations for employment as a dispute resolution neutral, regardless of whether the employment negotiations were with a neutral implicated in the case before the judge. Finally, and most importantly, it is apparent that, despite the Bank's inferences to the contrary, Judge Williams participated in discussions for prospective employment that were considerably more substantial than the simple rejections-of-solicitations allowed by Code of Civil Procedure section 170.1, subdivision (a)(8)(B)(i). In August 2005, Judge Williams represented that he had engaged in discussions within the past two years, and that such discussions had commenced in May 2003. As such discussions covered at least three months, they clearly fell within the scope of prohibited discussions, and disqualified Judge Williams from ruling on arbitration-related matters.
Orders made by a disqualified judge are void. (Cadenasso v. Bank of Italy (1932) 214 Cal. 562, 567-568, 6 P.2d 944; Christie v. City of El Centro (2006) 135 Cal. App. 4th 767, 776, 37 Cal. Rptr. 3d 718.) There is a dispute in recent appellate authority as to whether such orders should be considered void or only voidable at the option of a party; the Supreme Court's latest opinion on the matter held them to be void. (Christie v. City of El Centro, supra, 135 Cal.App.4th at pp. 769-780, 37 Cal. Rptr. 3d 718.) The distinction is of no difference in this case as Ross timely requested the order compelling arbitration to be vacated. Nonetheless, whether the order of a disqualified judge is considered void or voidable, it is clear that it is only the disqualified judge who cannot act; the court retains jurisdiction over the subject matter. (See 2 Witkin, Cal. Procedure (4th ed. 1996) Courts, §§ 93, 94, pp. 131-132.)
"[Disqualification occurs when the facts creating disqualification arise, not when the disqualification is established." (Christie v. City of El Centro, supra, 135 Cal.App.4th at p. 776, 37 Cal. Rptr. 3d 718.) "[I]t is the fact of disqualification that controls, not subsequent judicial action on that disqualification." (Id. at p. 777, 37 Cal. Rptr. 3d 718.) On February 25, 2004, Judge Williams had before him a motion to compel arbitration in this case. At that point in time, he had, within the past two *149 years, participated in discussions regarding prospective employment as a dispute resolution neutral. He was therefore disqualified from the case, regardless of his lack of knowledge of the law providing for his disqualification. His order compelling arbitration was therefore void.
2. The Good Cause Exception Does Not Apply
Code of Civil Procedure section 170.3, subdivision (b)(4) provides that, under certain circumstances, prior rulings of a disqualified judge are not to be set aside without good cause. That subdivision states, "In the event that grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding but before the judge has completed judicial action in a proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, but in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge." (Code Civ. Proc., § 170.3, subd. (b)(4), emphasis added.) The Bank argues that the trial court erred in not requiring good cause before vacating the order compelling arbitration.
The subdivision, by its plain language, does not apply. The grounds for Judge Williams's disqualification consisted of: (1) having, within the past two years, participated in discussions regarding prospective employment as a dispute resolution neutral; and (2) having before him a matter including issues relating to the enforcement of an arbitration agreement. These facts co-existed on February 25, 2004, when the Bank moved to compel arbitration. At this point, the grounds for disqualification both "arose" and were "learned of." The only thing not appreciated by Judge Williams was the legal conclusion that, under the law, these facts constituted grounds for disqualification. Code of Civil Procedure section 170.3, subdivision (b)(4), by its terms, applies only to rulings made prior to the time the grounds for disqualification are first learned of or arisenot rulings made prior to the time the judge became aware of controlling law. As such, the order compelling arbitration was properly vacated in the absence of a showing of good cause.
3. The Constitutionality of Code of Civil Procedure section 170.1, subdivision (a)(8) is Not Before This Court
The Bank next contends that Code of Civil Procedure section 170.1, subdivision (a)(8) is unconstitutionally vague. The Bank concedes that it never raised the issue before the trial court, but suggests we should review this pure question of law. We decline the invitation.
We are concerned, in this appeal, with Judge House's order vacating the order compelling arbitration and vacating the arbitration award itself. We are not concerned with Judge Williams's order disqualifying himself. Indeed, we cannot be. "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision." (Code Civ. Proc., § 170.3, subd. (d).) The proper forum for a challenge to the constitutionality of Code of Civil Procedure section 170.1, subdivision (a)(8) would have been a petition for writ of mandate filed within 10 days of Judge Williams's recusal. It cannot be raised now, months later, on an appeal from an order considering the effects of that recusal.
*150 4. The Order Vacating the Arbitration Award was Premature
As discussed above, the trial court did not err in vacating as void Judge Williams's order compelling arbitration. However, it does not necessarily follow that the arbitration award should also have been vacated. Considering the unique procedural history of this case, as well as the policy interests implicated, we conclude the matter should be remanded to the trial court for further proceedings.
"[A] disqualified judge has no power to act in any proceedings after his or her disqualification." (Christie v. City of El Centro, supra, 135 Cal. App. 4th 767, 776, 37 Cal. Rptr. 3d 718.) In this case, Judge Williams lacked the power to act once the motion to compel arbitration was before him. His order compelling arbitration was therefore void. But there were substantial proceedings that occurred after Judge Williams's disqualificationthe arbitration itselfthat took place without Judge Williams's participation. We therefore question whether the arbitration proceedings must be vacated based solely on the fact that the order compelling arbitration was the void act of a disqualified judge.
Ross argues that since the arbitration arose as a result of Judge Williams's void order compelling arbitration, the arbitration award must also be void. The conclusion does not follow. If the parties were required to arbitrate their dispute, they were required to do so because of an arbitration clause that existed independently of Judge Williams's order.[18]If that arbitration clause governs the parties' dispute, then the matter should have been arbitrated regardless of Judge Williams's order. And if the arbitration was not otherwise tainted by Judge Williamsan issue we discuss belowJudge Williams's disqualification should not mandate the vacation of the arbitration award.
We assume, for the moment, that the parties were, in fact, required to arbitrate their dispute. We also assume that Judge Williams had no effect on the arbitration other than ordering that it occur.[19] Under these circumstances, policy considerations compel the conclusion that the arbitration award not be vacated. First and foremost, the policy behind judicial disqualification is not thwarted by allowing an untainted arbitration to stand. "Statutes governing disqualification for cause are intended to ensure public confidence in the judiciary and to protect the right of the litigants to a fair and impartial adjudicator." (Curle v. Superior Court (2001) 24 Cal. 4th 1057, 1070, 103 Cal. Rptr. 2d 751, 16 P.3d 166.) Public confidence in the judiciary is not undermined by allowing an untainted arbitration to stand. To the contrary, public confidence in the judiciary would be undermined if the court threw out an arbitration award issued by fair and impartial arbitrators, thereby requiring a second arbitration, simply because the judge who initially granted the motion to compel arbitration should not have ruled on the motion. Moreover, this case implicates issues of judicial economy. The arbitration proceedings that were held were lengthy and costly. Principles of judicial economy suggest these proceedings should *151 not vacated if the proceedings themselves were untainted.[20]
We next consider the procedures that must be followed by the trial court in order to determine whether the parties were, in fact, required to arbitrate their dispute and also whether the arbitration was, in fact, tainted by Judge Williams. Judge Williams's disqualification arose on February 25, 2004, when the Bank moved to compel arbitration. At that time, had Judge Williams disqualified himself, the motion would have been heard by another trial judge. We conclude that, on remand, the trial court must consider the motion to compel arbitration which was heard by Judge Williams, and decide whether the causes of action in the then-pending complaint should be resolved by arbitration. This is the circumstance that would have occurred had Judge Williams properly disqualified himself at the time.
We note that, at the time Judge House granted the motion to vacate the arbitration award, Ross had pending a motion to file a first amended complaintone which omits references to several of the contracts on which Ross initially brought suit. Judge House declined to rule on the motion, stating that it was "premature" to consider the issue, as, if there is a subsequent arbitration, it may be that the issue of an amendment to the pleadings would be a matter for the arbitrator to decide. After Judge House granted the motion to vacate the arbitration award, Ross filed his first amended complaint without having been granted leave to do so. It appears that Ross is attempting to avoid a second adverse ruling on the motion to compel arbitration by relying on an amended complaint, rather than the allegations of his original complaint. While such a matter would be for the trial court to resolve in the first instance, we question the propriety of such apparent gamesmanship. As a result of Judge Williams's disqualification, Ross is entitled to a new determination, by a new judge, of the Bank's February 2004 motion to compel arbitration. This does not entitle Ross to amend his complaint and try a whole new litigation strategy in light of his initial lack of success.[21] Judge Williams's disqualification to rule on matters regarding arbitration voids his order compelling arbitration and entitles the parties to a reconsideration of that motion before a new judge, no more.
Should the trial court conclude the motion to compel should be granted, the next step will be to determine whether the arbitration which has already occurred should be given legal effect. In this respect, the appropriate course would be for the parties to move ahead with their cross-petitions *152 to vacate and confirm the arbitration award, with the parties allowed further briefing to discuss whether the award was tainted by Judge Williams.[22] In this case, we believe the appropriate standard is whether "[a] person aware of the facts might reasonably entertain a doubt that the [arbitrators] would be able to be impartial." (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii); cf. Christie v. City of El Centro, supra, 135 Cal. App. 4th 767, 776, 37 Cal. Rptr. 3d 718 [where first judge was disqualified due to the filing of a peremptory challenge, second judge who consulted with first judge after the first judge's disqualification was also disqualified as the conversation gave rise to a doubt as to his impartiality].) Only if the trial court concludes that the arbitration was tainted by Judge Williams, or should be vacated on other grounds, should the trial court vacate the arbitration award.
We note that we are not indicating that Judge Williams's order compelling arbitration should be upheld if it is determined that Judge Williams acted correctly when he granted the motion to compel arbitration. The law is clear that a disqualified judge's orders are void, regardless of whether they happen to have been legally correct. (Cadenasso v. Bank of Italy (1932) 214 Cal. 562, 568-569, 6 P.2d 944.) We are instead holding that, when the only act of the disqualified judge was to send the parties to an alternative process in which the disqualified?judge had no input whatsoever, the result', of the alternative process should not be vacated solely by virtue of the judge's disqualification. Upon remand, the trial court should hear and decide anew the original motion to compel, without any consideration of or regard for Judge Williams' prior ruling thereon. If the court grants the motion to compel, then it should proceed to hear and decide the pending cross-petitions to confirm and vacate the arbitration award after considering such supplemental evidentiary matters and argument that the court may deem appropriate in light of the views expressed herein.
DISPOSITION
The trial court's order vacating the arbitration award is reversed and the case remanded for further proceedings consistent with the views expressed in this opinion. Each party is to bear its own costs on appeal.
We Concur: KLEIN, P.J, and ALDRICH, J.
NOTES
[1] The body of the complaint is 51 pages long. With attached exhibits, it is 239 pages.
[2] At a later hearing, Judge Williams also disclosed that he had an account at Bank; again, this was not suggested as a basis for disqualification.
[3] Ross did not bring this motion before the arbitrators as no arbitrators had yet been appointed and it appeared that time was of the essence.
[4] The court later added, somewhat sarcastically, "[Ross] argues New York law applies in this case in deciding whether to grant a preliminary injunction. I mean, that makes sense, the property is in Beverly Hills, the Bank is in California, and the court's here in Los Angeles, so of course why not apply New York law, and excuse my tongue-in-cheek." The court further explained that even if New York law applied for contract interpretation, forum law would still govern whether a preliminary injunction should issue.
[5] As we will discuss below, review was granted in Hartford and subsequently dismissed, resulting in the nonpublication of the opinion.
[6] As Judge Williams subsequently explained, "That is a statute that came on the books a couple of years ago, and somehow escaped the attention of almost every judgeof every judge I know, except for one. [H] There was a decision in a case called Hartford, which highlighted the statute." He further explained, "If I did not make a disclosure, it's very simply because I did not know about the statute, along with 99.9 percent of the judges and 100 percent of the lawyers that I have dealt with."
[7] As Judge Williams subsequently explained, "One of the reasons I haven't gone back and dug up all my cases is the law is rapidly evolving."
[8] The Bank was not, however, successful on its cross-complaint.
[9] Many of the issues raised in Ross's petition to vacate the award were based on the argument that the arbitrators exceeded their powers in that arbitration never should have been compelled in the first place. Ross's underlying challenges to the order compelling arbitration raised several arguments that he had not made in opposition to the motion to compel.
[10] The Bank latches onto Judge Williams's statements to this effect to conclude that "Judge Williams specifically stated that he did not even realize the existence, let alone the impact of the statute until preparing the night before the August 26, 2005 hearing on the motion to confirm the arbitration award." This is a misstatement of the record. At the hearing, Judge Williams clearly indicated that he had "lived with this since .. . the case law highlighted it at the beginning of this year, and [he had already] addressed it in a number of cases." Judge Williams explained that he had chosen not to "d[i]g up all [his] cases" because the law in this area was "rapidly evolving." He had simply not realized until the night before that this was a case in which he was disqualified under Hartford. We do not mean, by this, to imply that the trial court acted improperly by not immediately "digging up" his old cases and informing the parties of his potentially disqualifying conversations, in light of Hartford. However, the Bank's suggestion that Judge Williams learned of the effect of his conversations the night before the hearing and immediately disclosed them is contrary to the record.
[11] Judge Williams also signed a written "Notice of Intended Recusal" which stated the same facts.
[12] Otherwise, Judge Williams would not have stated that he participated in such discussions within "the last two years."
[13] Stated the judge, "It's a free chance at forum shopping and every lawyer dreams of that."
[14] The amendment also clarified that discussions regarding prospective employment as a dispute resolution neutral also disqualify a judge from a matter involving issues relating to the enforcement of an arbitration award. (Code Civ. Proc., § 170.1, subd.(a)(8)(A)(ii).)
[15] Recognizing the possible procedural bars to a motion for reconsideration at this juncture, the Bank alternatively characterized its motion as a subsequent application of its motion to confirm the arbitration award.
[16] Code of Civil Procedure section 1294, subdivision (c), renders appealable "[a]n order vacating an [arbitration] award unless a rehearing in arbitration is ordered." As no rehearing was ordered, the order vacating the award is appealable. While it is possible that a new arbitration hearing may subsequently be ordered in this case, Ross provides no authority for the proposition that the question of the appealability of the instant order vacating the arbitration award turns on a possible future order of the trial court.
[17] The Bank also argues that the amendments to the statute apply retroactively. We need not address this argument as, assuming the amendments apply, Judge Williams was properly disqualified.
[18] That Ross chose to bring his action in court, thereby prompting a petition to compel arbitration, does not undermine the fact that his obligation to arbitrateif, indeed, there was such an obligationarose from the contract.
[19] Judge Williams played no part in the selection of the individual arbitrators, the use of JAMS, or the choice of arbitration over judicial reference.
[20] We note that considerations of judicial economy are not completely overlooked in cases of disqualification. Code of Civil Procedure section 170.3, subdivision (b)(4)'s use of a good faith standard before setting aside certain orders of a disqualified judge allows such orders to stand when there is no reason to believe the judge's disqualification impacted the judge's decisionmaking.
[21] Ross relies on Malek v. Blue Cross of California (2004) 121 Cal. App. 4th 44, 60, 16 Cal. Rptr. 3d 687, for the purported proposition that, when an order compelling arbitration is vacated for any reason, in reconsidering whether an arbitration should occur, the trial court must consider the motion in light of the facts and circumstances existing at the time the motion to compel is reconsidered. Malek says no such thing. In Malek, the trial court granted a motion to compel arbitration. A change in the law then rendered the arbitration clause unenforceable. The court subsequently reconsidered its own order granting the motion to compel arbitration, in light of the change in law. Malek stands only for the unremarkable proposition that a change in law may require a trial court to reconsider its ruling, not that new facts must be considered when a judge's disqualification mandates reconsideration of a motion.
[22] At oral argument on the appeal, we asked the parties whether Judge Williams had any effect on the arbitration at all, beyond ordering that it take place. Ross has filed supplemental briefing indicating that the Bank submitted the transcripts of the two hearings before Judge Williams to the arbitrators, which placed before the arbitrators Judge Williams's opinions on whether New York law applied (an issue on which Ross prevailed, by agreement of the parties, in the arbitration), whether the contract was unconscionable, and whether the matter should be arbitrated. There is no indication in the record before us that the arbitrators were influenced by Judge Williams's opinion on any matter other than the arbitrability of the dispute. As the determination of arbitrability is a purely judicial task, the arbitrators were correct to yield to Judge Williams on this point. (Malek v. Blue Cross of California, supra, 121 Cal.App.4th at p. 56, 16 Cal. Rptr. 3d 687.) It appears that we cannot determine whether the arbitration was tainted as a matter of law, and we therefore remand to the trial court to resolve the matter in the first instance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330214/ | 586 S.E.2d 83 (2003)
262 Ga. App. 607
WAL-MART STORES, INC.
v.
WHEELER.
No. A03A0663.
Court of Appeals of Georgia.
July 16, 2003.
Reconsideration Denied July 31, 2003.
Certiorari Denied November 17, 2003.
*84 Joseph D. Perrotta, for appellant.
Simpson & Cross, Ralph F. Simpson, Tifton, for appellee.
ADAMS, Judge.
The Uniform Commercial Code provides in part that a buyer who has accepted nonconforming goods can recover damages for breach of warranty if the buyer notifies the seller of defects in those goods within a reasonable time after discovery; otherwise it is barred from any remedy. OCGA § 11-2-607(3)(a). Two years and three days after John P. Wheeler was injured by a device he purchased at Wal-Mart Stores, Inc., he served Wal-Mart with notice of a defect in the product. Wal-Mart sought summary judgment on the grounds that Wheeler waited an unreasonable time as a matter of law. The trial court denied the motion, and we granted Wal-Mart's application for discretionary review.
Construing the facts in favor of Wheeler shows that in January 1999, Wheeler bought a new bow trigger release mechanism from Wal-Mart and attached it to his bow. While Wheeler was target practicing on September 16, 1999, the bow release detached from the bow, striking him in the mouth, and causing substantial damage to his upper lip, gums, and teeth.
Wheeler filed suit on June 29, 2001, against one alleged manufacturer. On September 14, 2001, Wheeler amended his complaint, added several additional alleged manufacturers, as well as Wal-Mart, the seller, and claimed that Wal-Mart had breached implied warranties of merchantability and fitness *85 for a particular purpose. Wal-Mart first received notice of the accident when it was served with the amended complaint on September 19, 2001, over two years after the accident. The trial court denied Wal-Mart's motion for summary judgment without stating the basis for its ruling. In its sole enumeration of error, Wal-Mart claims that the trial court erred by not holding that Wheeler failed to provide reasonable notice as a matter of law.
1. Under the Uniform Commercial Code, where a tender of nonconforming goods has been accepted, "[t]he buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy." OCGA § 11-2-607(3)(a). See also Intl. Multifoods Corp. v. Nat. Egg Products, 202 Ga.App. 263, 265-266(4), 414 S.E.2d 253 (1991); Hudson v. Gaines, 199 Ga.App. 70, 72(2), 403 S.E.2d 852 (1991). Generally, whether notice has been reasonably given presents a question of fact, but summary adjudication is appropriate if the uncontroverted facts establish that notice was unreasonable as a matter of law. BDI Distrib. v. Beaver Computer Corp., 232 Ga.App. 316, 318, 501 S.E.2d 839 (1998); Intl. Multifoods Corp., 202 Ga.App. at 266(4), 414 S.E.2d 253.
The Georgia codification of the UCC states that what constitutes a reasonable time depends on the nature, purpose, and circumstances of a particular case. OCGA § 11-1-204(2). And the Official Comments to UCC § 2-607 instruct that what constitutes a reasonable time in cases involving retail transactions is judged differently from those involving commercial transactions:
The time of notification is to be determined by applying commercial standards to a merchant buyer. "A reasonable time" for notification from a retail consumer is to be judged by different standards so that in his case it will be extended, for the rule of requiring notification is designed to defeat commercial bad faith, not to deprive a good faith consumer of his remedy.
UCC § 2-607, Comment 4. See also Jones v. Cranman's Sporting Goods, 142 Ga.App. 838, 840(1), 237 S.E.2d 402 (1977) (quoting Comment 4).[1]
Wal-Mart relies primarily on the case of Buford v. Toys R' Us, 217 Ga.App. 565, 458 S.E.2d 373 (1995). In that case, Toys R' Us sold a bicycle to the parents of a child in November 1990. On April 21, 1991, the child was injured while riding the bike when a painted weld on the bike separated. The parents brought suit against Toys R' Us on the grounds of negligence and breach of implied warranty. This court affirmed the grant of summary judgment in favor of Toys R' Us, in part because it did not receive notice from the Bufords until the complaint was served two years after the accident, and, accordingly, such notice "was not `reasonable' as a matter of law." Id. at 567(3), 458 S.E.2d 373.
In reaching this holding, Buford cited Cobb County &c. v. MAT Factory, 215 Ga.App. 697, 703(2), 452 S.E.2d 140 (1994), and Intl. Multifoods Corp., 202 Ga.App. at 263, 414 S.E.2d 253. Both are commercial cases and therefore not controlling regarding the standard to be used in determining whether notice was given within a reasonable time under OCGA § 11-2-607. Further, the Buford opinion failed to distinguish between the two standards for determining reasonable notice under this provision of the UCC. Compare Cranman's Sporting Goods, 142 Ga.App. at 840(1), 237 S.E.2d 402.
Several cases from other jurisdictions that consider the notice requirement in the context of a consumer or tort claim require a showing of prejudice from the delay before barring any remedy to the plaintiff. See, e.g., Hebron v. American Isuzu Motors, 60 F.3d 1095, 1098 (4th Cir.1995) (two-year unexplained delay in giving notice, coupled with the plaintiff's disposal of critical evidence, was unreasonable as a matter of law); *86 Prager v. Allergan, Inc., 1990 WL 70875 (N.D.Ill.1990) (seller fails to establish that 21-month delay in providing notice caused prejudice); Castro v. Stanley Works, 864 F.2d 961, 964(II) (1st Cir.1989) (20-month delay prevented seller "from investigating fully the circumstances of the accident and ascertaining facts which later could not be determined").
However some jurisdictions do not require a showing of prejudice. See, e.g., San Antonio v. Warwick Club Ginger Ale Co., 104 R.I. 700, 707-709, 248 A.2d 778 (1968) (twelve-month delay without any explanation from plaintiff was unreasonable as a matter of law); Leeper v. Banks, 487 S.W.2d 58 (Ky. 1972) (one-year delay unreasonable as a matter of law).
Then again, at least two jurisdictions have held that the notice requirement is simply not applicable to product liability and tort claims respectively. Hill v. Joseph T. Ryerson & Son, Inc., 165 W.Va. 22, 268 S.E.2d 296 (1980) (no notice required in product liability actions); Fischer v. Mead Johnson Laboratories, 41 A.D.2d 737, 341 N.Y.S.2d 257 (N.Y.1973) (no notice required for tort claim arising out of ingested product).
A review of the multiple purposes of the notice requirement is instructive.
Notice of breach serves two distinct purposes. First, express notice opens the way for settlement through negotiation between the parties. Second, proper notice minimizes the possibility of prejudice to the seller by giving him ample opportunity to cure the defect, inspect the goods, investigate the claim or do whatever may be necessary to properly defend himself or minimize his damages while the facts are fresh in the minds of the parties.
(Citations and punctuation omitted.) Oden & Sims Used Cars v. Thurman, 165 Ga.App. 500, 501, 301 S.E.2d 673 (1983). See also Hudson, 199 Ga.App. at 72(2), 403 S.E.2d 852; BDI Distrib., 232 Ga.App. at 317(1), 501 S.E.2d 839. In the context of an action involving personal injury, the notice requirement also informs the seller of a need to make changes in its product to avoid future injuries. 4 Anderson, Ronald A. Anderson on the Uniform Commercial Code § 2-607:6 (3rd ed.1981). The Fourth Circuit has explained that the notice "serves the important functions of promoting the voluntary resolution of disputes and minimizing prejudice to the seller from the passage of time." Hebron, 60 F.3d at 1098-1099.[2]
In conclusion, each of the purposes of the notice requirement is implicitly based on the assumption that the seller could be prejudiced as more and more time passes from the date of the breach. The comments to the UCC specifically state that the notice provision found in § 2-607 is not intended to deprive a good faith consumer of his remedy. And, as it has been said, "[a]n injured lay consumer has no reason to know, until he consults a lawyer, that under the terms of the Uniform Commercial Code he is required to give the seller notice that the item sold was not satisfactory." Maybank v. S.S. Kresge Co., 302 N.C. 129, 135(III), 273 S.E.2d 681 (1981). We therefore conclude that delay alone without prejudice caused by such delay is insufficient to bar relief to the plaintiff under OCGA § 11-2-607(3)(a). To the extent that Buford, 217 Ga.App. at 565, 458 S.E.2d 373, can be read to hold that a delay of two years, without more, is unreasonable as a matter of law, it is hereby disapproved.
2. In this case, Wal-Mart contends in its brief that it was denied the opportunity to have settlement negotiations, to cure the defect, or reduce the damages at an early stage. It also contends that it was denied the opportunity to determine the actual manufacturer of the product and suggests that there could be statute of limitation problems. (Wheeler has dismissed without prejudice all six manufacturers that he sued in this case; he still does not know who manufactured the *87 device.) Wheeler contends that Wal-Mart has not been prejudiced. He argues that once the injury occurred, Wal-Mart could not have cured the defect or reduced the damages at an early stage. He also states that no settlement negotiations have taken place and that Wal-Mart has had the opportunity to view and inspect the device.
But neither party has sufficiently included any of the above facts regarding possible prejudice in the record so as to establish the point one way or another. Before the trial court, Wal-Mart only argued that a two-year delay was unreasonable as a matter of law. Wal-Mart never introduced any evidence of prejudice whatsoever. Without evidence of prejudice resulting from the delay, this Court is not authorized to reverse the trial court's decision on these grounds. Because it cannot be said that Wal-Mart is entitled to summary judgment on this point as a matter of law, the trial court's decision is affirmed.
3. The dissent's reliance on a statute of limitation argument is flawed for this reason. Wal-Mart did not raise a statute of limitation defense in its answer, other pleadings, or in its motion for summary judgment. Therefore the trial court was prohibited from ruling on the issueindeed, the trial court did not address it; and this Court has no basis to consider it either. See Hansford v. Robinson, 255 Ga. 530(1), 340 S.E.2d 614 (1986).
Judgment affirmed.
SMITH, C.J., JOHNSON, P.J., RUFFIN, P.J., ELDRIDGE, BARNES, MILLER, ELLINGTON and PHIPPS, JJ., concur.
ANDREWS, P.J., BLACKBURN, P.J., and MIKELL, J., dissent.
ANDREWS, Presiding Judge, dissenting.
Because I believe that, as a matter of law, the notice given by Wheeler of the alleged defect in the bow trigger release mechanism was not reasonable under OCGA §§ 11-2-607(3)(a) and 11-2-725, the applicable statute of limitation, and that the trial court erred in not so finding, I must respectfully dissent.
Although, in Buford v. Toys R' Us, 217 Ga.App. 565, 458 S.E.2d 373 (1995), the claim against the retailer was premised on strict liability, which this Court found inapplicable, I believe our conclusion that the notice given by the Bufords by service of the complaint two years after the accident and two years and five months after the sale was unreasonable as a matter of law should control here. While the two cases relied upon in Buford involved commercial transactions as opposed to a retail sale to a consumer, I do not believe, under the circumstances of this case, that the distinction is dispositive because, under either standard, the notice was not reasonable.
Other cases involving a merchant and retail buyer support this conclusion. In Oden & Sims Used Cars v. Thurman, 165 Ga.App. 500, 501(1), 301 S.E.2d 673 (1983), the issue was warranty of title between a merchant seller and a retail buyer of an automobile. In considering the issue of notice, this Court found that
[a] condition precedent to bringing this action was that plaintiff must have notified Oden & Sims of the breach within a reasonable time thereof. [OCGA § 11-2-607(3)(a)]; see Jones v. Cranman's Sporting Goods, 142 Ga.App. 838(1), 237 S.E.2d 402 (1977). The content of the notification needed merely to have been sufficient to have informed Oden & Sims that the transaction was "`still troublesome and must be watched.'" Jones v. Cranman's Sporting Goods, supra at 840, 237 S.E.2d 402.
(Emphasis supplied.) Id. at 500-501(1), 301 S.E.2d 673, (no notice unreasonable as matter of law). See also Hudson v. Gaines, 199 Ga.App. 70, 72(2), 403 S.E.2d 852 (1991). (service of complaint within eight months of confiscation of vehicle and its removal from the parties' possession found reasonable as matter of law).
In considering the issue of notice and its reasonableness, it must be kept in mind that the implied warranty at issue here is predicated upon a sale of the item. In such a situation, the claimant must show that the defects or conditions responsible for the injury existed at the time of the sale, or on January 16, 1999. Jones v. Marcus, 217 Ga.App. 372, 373(1), 457 S.E.2d 271 (1995). Further, in order to pursue his claim, Wheeler *88 was required by OCGA § 11-2-725 to file his lawsuit within four years of its accrual, or at least by January 16, 2003. It was not until September 14, 2001, that the amended complaint naming Wal-Mart as a defendant was filed and it was not until September 19, 2001, over two years into the four years available to file suit, that it was served upon Wal-Mart.
In this case, Wal-Mart is faced with having to defend a claim based on a defective product over two years after its sale to Wheeler. As acknowledged by Wheeler, it is apparently impossible to identify the actual manufacturer of the bow release mechanism sold to him. Initially, Wheeler sued Cobra Manufacturing, later adding Wal-Mart as seller. Eventually, five other potential manufacturers were named in the amended complaint, although claims against all the named manufacturers have been dismissed, leaving only Wal-Mart as defendant.
The majority relies on Comments to the UCC for part of its rationale. While, certainly, such comments may be considered by this Court as persuasive authority, see Sun v. Mercedes Benz Credit Corp., 254 Ga.App. 463, 562 S.E.2d 714 (2002). they can in no way alter the limits enacted by the legislature as statutes of limitation. Therefore, the statute of limitation applicable to Wheeler's claim, four years, must be the outside limits applicable to the issue of the reasonableness of notice.
The majority also discusses three different approaches in other jurisdictions to the reasonableness of notice issue in a seller/consumer situation: (1) those requiring a showing of prejudice from the delay before barring a consumer's remedy; (2) those requiring no showing of prejudice, only delay by the consumer; and (3) those in which the notice requirement does not apply to product liability and tort claims.
There is no Georgia case specifically requiring the showing of prejudice by the seller before the consumer's claim is barred. It would seem logical, however, that even were we to conclude that prejudice must be shown in Georgia, despite our finding in Buford v. Toys R' Us, the burden of the retailer to show prejudice lessens as the time provided by the statute of limitation shortens. Here, filing of suit two years and nine months after the sale at issue and the fact that Wal-Mart did not receive actual notice until after that is persuasive on the reasonableness of notice issue.
Under either the first or second options discussed by the majority,[3] I believe Wal-Mart was entitled to summary judgment in this case. As acknowledged by the majority, one of the purposes for notice in an action involving personal injury is to inform the seller of a need to make changes in its product to avoid future injuries. Had Wal-Mart known sooner of the alleged defect, it is possible it could have identified the manufacturer and taken their product from the shelves. Instead, Wal-Mart is faced with a situation in which it was merely the seller of a defective product (the defect being latent), but is deprived, because of the delay in notice by Wheeler, of the opportunity to file a third-party claim against the manufacturer.
Also, although Wheeler states that, under the facts here, it was impossible for Wal-Mart to mitigate its damages or engage in meaningful settlement negotiations, this contention is at best speculation.
Here, the facts are not disputed and I believe that, as a matter of law, the notice given was not reasonable. See Hebron v. American Isuzu Motors, 60 F.3d 1095, 1098 (4th Cir.1995). Leeper v. Banks, 487 S.W.2d 58 (Ky.1972); San Antonio v. Warwick Club Ginger Ale Co., 104 R.I. 700, 707-709, 248 A.2d 778 (1968).
I am authorized to state that Presiding Judge BLACKBURN and Judge MIKELL join in this dissent.
NOTES
[1] "To determine the legislature's intent in enacting [a] provision [of the UCC], we consult the official comments accompanying the UCC." Sun v. Mercedes Benz Credit Corp., 254 Ga.App. 463, 465(1), 562 S.E.2d 714 (2002). See also Warren's Kiddie Shoppe v. Casual Slacks, 120 Ga. App. 578, 580, 171 S.E.2d 643 (1969) (official comments of the UCC should be given due consideration in determining the intent of the General Assembly in enacting the provisions verbatim).
[2] In the commercial setting, the purpose of the rule is to defeat commercial bad faith. "`If the seller is notified of a breach within a reasonable time he has opportunity to ascertain for himself the nature and extent of the breach by taking advantage of UCC § 2-515 which gives either party upon reasonable notification to the other [ ] the right to inspect, test and sample the goods... for the purpose of ascertaining the facts and preserving evidence.' [Cit.]" Intl. Multifoods Corp., 202 Ga.App. at 266(4), 414 S.E.2d 253.
[3] The third option is precluded by the mandatory language of OCGA § 11-2-607(3)(a), as acknowledged by the majority. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330083/ | 586 S.E.2d 326 (2003)
277 Ga. 51
EVANS
v.
The STATE.
No. S03A0778.
Supreme Court of Georgia.
September 15, 2003.
*327 Patrick G. Longhi, Atlanta, for appellant.
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Marc A. Mallon, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Ruth M. Pawlak, Asst. Atty. Gen., for appellee.
SEARS, Presiding Justice.
The appellant, Darnell Evans, appeals from his convictions for malice murder and armed robbery.[1] He contends that the evidence is insufficient to support his convictions, and that the trial court erred in admitting into evidence a statement that he made to the police and a statement that he made to a cellmate. Because we conclude that the evidence is sufficient to support the convictions, and that the trial court properly admitted Evans's statements, we affirm.
1. Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Evans followed the victim on the night of the crimes in order to steal his car and that Evans shot and killed the victim when he did not cooperate with Evans. The evidence is therefore sufficient to support the convictions.[2]
2. Evans contends that the trial court erred in admitting into evidence a statement that he gave to the police. More specifically, Evans contends the statement was involuntary because Evans had only earned a GED and because the police officer who interviewed him attempted to coerce Evans into giving a statement by informing Evans that he (the officer) had Evans's fingerprints. We disagree with this contention.
At a Jackson-Denno hearing, the officer who spoke with Evans testified that he told Evans he was a suspect in a murder case; that he informed him of his Miranda rights; that Evans stated that he understood *328 his rights; and that Evans signed a waiver of rights form. The officer also testified that he did not threaten Evans and did not promise him anything. According to the officer, Evans appeared to understand what was happening and read his statement before signing it. The officer added that Evans never attempted to stop talking to the officer and never asked for an attorney. The officer's testimony thus supports the trial court's ruling that Evans's statement was voluntary. Moreover, we conclude that, standing by itself, the fact Evans had earned only a GED is insufficient to make his statement involuntary. In fact, this Court has relied on the fact that a defendant has obtained a GED to hold that he knowingly and intelligently waived his right to counsel.[3] In addition, we cannot conclude that the fact that the officer truthfully informed Evans about finding his fingerprints makes the statement involuntary. Instead, examining the totality of the circumstances, we conclude that the trial court did not err in ruling that Evans's statement was voluntary and admissible.[4]
Evans also appears to be contending that the statement was the result of a "hope of benefit" and thus inadmissible under OCGA § 24-3-50. However, "[g]enerally, the reward of a lighter sentence for confessing is the `hope of benefit' to which [OCGA § 24-3-50] refers."[5] Here, there is no evidence in the record that the officer referred to any possibility of a lighter sentence when he questioned Evans. Accordingly, this contention is without merit.
3. Evans contends that the trial court erred in admitting into evidence an incriminating statement that he made to a cellmate. Evans contends the statement was inadmissible because the cellmate was acting as an agent of the State when Evans made the statement. To support his contention, Evans relies on a statement by the officer that he told Evans's cellmate to "keep his ears open." The record, however, shows that this statement occurred after the cellmate had voluntarily contacted the officer and informed him of the statement of Evans that was admitted into evidence at trial. Thus, the record shows that at the time Evans made his statement to the cellmate, the cellmate was acting on his own initiative and was not acting as an agent for the State.[6]
4. For the foregoing reasons, we affirm Evans's convictions and sentences for malice murder and armed robbery, but vacate his conviction and sentence for felony murder.
Judgment affirmed in part and vacated in part.
All the Justices concur.
NOTES
[1] The crimes occurred on May 14, 1995. On January 9, 1996, Evans was indicted for malice murder, felony murder, and armed robbery. On January 31, 1996, a jury found Evans guilty of those three crimes, and the trial court sentenced Evans to life in prison for malice murder and felony murder and to a consecutive life sentence for armed robbery. The trial court, however, erred in sentencing Evans for felony murder. Malcolm v. State, 263 Ga. 369, 371-372(4), 434 S.E.2d 479 (1993). Accordingly, we vacate the sentence for that offense. Id. On February 12, 1996, Evans filed a motion for a new trial. New counsel was appointed to represent Evans on May 21, 1997, and again on April 4, 2002. Evans filed an amended motion for new trial on August 6, 2002. The trial court denied Evans's motion for new trial as amended on December 16, 2002. Evans filed a notice of appeal on December 17, 2002, and the appeal was docketed in this Court on February 12, 2003. The appeal was submitted for decision on briefs on April 7, 2003.
[2] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[3] Wayne v. State, 269 Ga. 36, 37-38, 495 S.E.2d 34 (1998).
[4] Johnson v. State, 275 Ga. 655, 571 S.E.2d 799 (2002); Lee v. State, 270 Ga. 798, 800, 514 S.E.2d 1 (1999).
[5] Taylor v. State, 274 Ga. 269, 273, 553 S.E.2d 598 (2001).
[6] See Burgan v. State, 258 Ga. 512, 515, 371 S.E.2d 854 (1988). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329983/ | 182 S.E.2d 227 (1971)
12 N.C. App. 17
Micah Scott EVANS, a minor by his guardian ad litem, Joyce B. Laws
v.
Iva Mae EVANS et al.
No. 7127SC471.
Court of Appeals of North Carolina.
July 14, 1971.
Certiorari Denied September 6, 1971.
Appeal Dismissed September 7, 1971.
Basil L. Whitener and Anne M. Lamm, Gastonia, for plaintiff appellant.
Jeffrey M. Guller, Gastonia, and James R. Carpenter, Carpenter, Golding, Crews & Meekins, Charlotte, for defendant appellee, Iva Mae Evans.
Certiorari Denied by Supreme Court September 6, 1971.
Appeal Dismissed by Supreme Court September 7, 1971.
PARKER, Judge.
Ever since the decision in Small v. Morrison, 185 N.C. 577, 118 S.E. 12, decided in *228 1923, it has been the rule in this jurisdiction that an unemancipated child, who is a member of his parents' household, may not maintain an action based on ordinary negligence against his parents or either of them. Watson v. Nichols, 270 N.C. 733, 155 S.E.2d 154; Warren v. Long, 264 N.C. 137, 141 S.E.2d 9; Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676. The purpose of the rule is said to be to implement a public policy protecting family unity, domestic serenity, and parental discipline. Upon the same theory it has been held that a parent cannot sue his unemancipated child for a personal tort. Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753.
Appellant recognizes the rule announced in these cases, but vigorously urges that the time has come for this State to join those jurisdictions which in recent years have reexamined and abolished these family immunities, citing such cases as Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282; Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648; Schenk v. Schenk, 100 Ill.App.2d 199, 241 N.E.2d 12; Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192; and Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193. If so, the task is for our Legislature or for our Supreme Court. This Court, as was the trial court, is bound by the rule heretofore announced and consistently followed by our Supreme Court in the cases first cited above.
Appellant also contends that the doctrine of parental immunity results in an unconstitutional denial to unemancipated children of due process and equal protection of the laws. We do not agree. The familial relationship has long been recognized as an appropriate and reasonable basis for imposing special rights, obligations and immunities.
The summary judgment dismissing plaintiff's claim against his mother, being in accord with the controlling decisions of our Supreme Court, is
Affirmed.
BRITT and MORRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329989/ | 256 S.C. 376 (1971)
182 S.E.2d 727
FACTORY MUTUAL LIABILITY INSURANCE COMPANY OF AMERICA, Respondent,
v.
Albert A. KENNEDY et al., Appellants.
19254
Supreme Court of South Carolina.
July 15, 1971.
*377 Messrs. Turner, Padget, Graham & Laney, of Columbia, for Appellant.
Messrs. Nelson, Mullins, Grier & Scarborough, of Columbia, for Respondent.
*378 July 15, 1971.
LEWIS, Justice.
The question for decision in this appeal is whether an insurer is relieved of liability by the nonprejudicial failure of an insured to give notice of the accident and forward suit papers, as required by the conditions of a "voluntary" automobile liability insurance policy.
The insured, under an automobile liability policy issued by plaintiff-respondent, was involved in an accident in which Norman G. and Myrnai B. Barkoot allegedly sustained damages. The Barkoots were insured under a liability policy issued to them by Fireman's Fund American Insurance Companies, which provided them with uninsured motorist coverage. After actions were brought by the Barkoots against respondent's insured, respondent instituted this action for declaratory judgment against its insured, the Barkoots, and Fireman's Fund Insurance Companies, of which the latter is appellant. The court was asked to adjudge that respondent owed no duty to its insured to either defend the action brought by the Barkoots or to pay any judgment recovered by them, because of the alleged failure of the insured to comply with policy conditions which required him to give respondent notice of the accident and forward to it the suit papers.
Answers were filed by all of the defendants, except respondent's insured. Under the pleadings, the issues raised *379 were (1) whether respondent's insured failed to give notice and forward suit papers as required by the policy; and, if so, (2) whether respondent was prejudiced thereby.
Respondent contended that the policy provisions in question constituted conditions precedent to recovery and that, upon proof of noncompliance therewith, it was relieved of liability under its policy. The action was defended upon the ground that, in addition to the failure of the insured to give the required notices, the burden was upon respondent, the insurer, to show that it had been substantially prejudiced by such failure.
The Master, to whom the cause was referred, found that the insured had failed to comply with the notice provisions of the policy and that such neglect relieved respondent of liability. The Master further held that under the law in this State, it was unnecessary for respondent to show that it was prejudiced by the neglect of the insured and, therefore, did not decide whether prejudice in fact did exist. These findings were affirmed by the trial judge and judgment entered for respondent, from which this appeal is prosecuted.
The pertinent portions of the policy provisions, with which we are here concerned, are contained in the "Conditions" section and are as follows:
"When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.
* * *
"If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.
* * *
*380 "No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company."
In holding that the failure of an insured to give notice and forward suit papers, per se, relieved the insurer of liability, the lower court mainly relied, as does respondent in this appeal, upon the cases of Free v. United Life & Accident Ins. Co., 178 S.C. 317, 182 S.E. 754; Lee v. Metropolitan Life Insurance Co., 180 S.C. 475, 186 S.E. 376; Boyle Road & Bridge Co. v. American Employers' Insurance Co. of Boston, Mass., 195 S.C. 397, 11 S.E. (2d) 438; and Hatchett v. Nationwide Mutual Insurance Co., 244 S.C. 425, 137 S.E. (2d) 608.
Reliance upon the foregoing cases as decisive of the present issue is misplaced. None required a determination of the question now before the Court. They either involved only the rights of the primary parties to the contract or prejudice to the insurer clearly appeared. We are here squarely presented with the question of the effect upon the rights of innocent parties of the failure of an insured to comply with notice conditions of the policy.
While the present conditions are contained in a "voluntary" policy and therefore not controlled by the provisions of Section 46-750.20, 1962 Code and Section 46-702(7) (b) of the Supplement to the 1962 Code of Laws (applicable only to certified policies), the rights of third parties for whose benefit the policy was issued are involved and must be determined not only in the light of the nature of the contract but also the public policy which its issuance was designed to promote.
The underlying purposes of automobile liability insurance and the public interest involved was thus stated in Evans v.> *381 American Home Assurance Co., 252 S.C. 417, 166 S.E. (2d) 811: "Public liability insurance not only affords protection to insured motorists, it serves the public purpose of affording protection to innocent victims of motor vehicle accidents. In recognition of this important public purpose, the legislatures of some states have enacted compulsory liability insurance laws. Others, including our General Assembly, have sought protection for highway victims, short of compulsory insurance, by the enactment of financial responsibility and uninsured motorist statutes."
The obvious function of the policy provisions, requiring the insured to give notice of the accident and forward suit papers, is to prevent prejudice to the insurer's right to conduct a reasonable investigation of the accident and adequately defend any action brought against the insured. If such prejudice does not result to the rights of the insurer, no sound reason appears to permit a mere technical noncompliance to deprive an innocent third party of benefits to which he would otherwise be entitled. The requirement that noncompliance must result in prejudice to the rights of the insurer preserves the basic function of the notice conditions and at the same time prohibits a technical application thereof from defeating the public purpose of affording protection to the innocent victim of a motor vehicle accident.
Although there is a division in the cases from other jurisdictions upon the question, Annotations: 76 A.L.R. 23, 123 A.L.R. 950, 18 A.L.R. (2d) 443; 8 Appleman, Insurance Law and Practice, Sections 4731 and 4732; 7 Am. Jur. (2d), Automobile Insurance, Section 145, we think the sound rule to be that, in an action affecting the rights of innocent third parties under an automobile liability insurance policy, the noncompliance by the insured with policy provisions as to notice and forwarding suit papers will not bar recovery, unless the insurer shows that the failure to give such notice has resulted in substantial prejudice to its rights. We so stated the rule in Squires v. National Grange Mutual Ins. Co., 247 S.C. 58, 145 S.E. (2d) 673.
*382 The lower court decision was based solely upon a finding that the notice provisions of the policy had not been complied with and that it was immaterial whether the insurer was prejudiced thereby. This was error and the case must therefore be remanded for a new trial in which the issue of prejudice will be determined.
The judgment is accordingly reversed and the cause remanded for further proceedings in conformity with the views expressed herein.
MOSS, C.J., and BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262658/ | 84 Cal.Rptr.2d 48 (1999)
71 Cal.App.4th 524
Guardianship of Z.C.W. and K.G.W.
Kathleen C, Petitioner and Appellant,
v.
Lisa W., Objector and Respondent.
No. A079097.
Court of Appeal, First District, Division Four.
April 19, 1999.
Rehearing Denied May 18, 1999.
Review Denied July 21, 1999.[**]
*49 Jennifer Jackson, Law Offices of James P. Preovolos, San Francisco; Law Office of Alice Philipson, Alice Philipson, Attorney at Law, Berkeley; E. Elizabeth Summers, Bien & Summers LLP, Oakland, for Petitioner and Appellant Kathleen C.
Shannon Minter, for National Center for Lesbians Rights, as Amicus Curiae on behalf of Petitioner and Appellant.
Kelli M. Evans, for American Civil Liberties Union Foundation of Northern California, Inc., as Amicus Curiae on behalf of Petitioner and Appellant Kathleen C.
Carol Amyx, Berkeley, Attorney at Law, for Objector and Respondent Lisa W.
Shannan L. Wilber, for Youth Law Center, as Amicus Curiae on behalf of Minors.
Joan Heifetz Hollinger, Professor, as Amicus Curiae on behalf of Minors.
Donna Furth, Attorney at Law, San Francisco, as Amicus Curiae on behalf of Minors.
Claudia Jackson and Karen Jones-Mason, San Francisco, Legal Services for Children, as Amicus Curiae on behalf of Minors.
Shawna Schwarz, Legal Advocates for Children & Youth, for the Youth Law Center, Joan Heifetz Hollinger, Legal Services for Children, Legal Advocates for Children and Youth, and the Northern California Association of Counsel for Children, Amicus Curiae in support of the minor children, Z.C.W. & K.G.W.
Certified for Partial Publication.[*]
HANLON, P.J.
In this guardianship proceeding, Kathleen C. (appellant), seeks visitation rights with the children of respondent Lisa W. She contends that she is entitled to visitation rights despite the objections of respondent, the children's biological mother, because she is the lesbian de facto parent of the children. We conclude that this issue is more appropriately addressed to the Legislature and that appellant is not entitled to any relief here.
FACTUAL BACKGROUND
In 1984, the parties became involved in a lesbian relationship and began living together in February 1985. Respondent's daughter, K.G.W., then almost three years old, lived with them. In 1986, the parties decided to have another child, and respondent became pregnant by artificial insemination. Z.C.W. was born in 1987 and the parties gave the child appellant's surname as a middle name. Appellant was regularly involved in the parenting and support of both children until the parties separated in 1990.
The parties thereafter agreed to a visitation agreement under which appellant had the children on alternate weekends. Appellant regularly visited with the children until November 1994 when respondent terminated the agreement. Appellant continued to maintain contact with the children through letters and occasionally spoke with K.G.W. on the telephone. In early 1996, appellant visited with the children surreptitiously on several occasions. Respondent learned of these visits and sought a restraining order under the Domestic Violence Prevention Act (Fam. Code, §6200 et seq.). In that action, the trial court issued a temporary restraining order on April 25, 1996 against appellant in favor of respondent and her children, preventing appellant from contacting them. Following a hearing, the court granted a restraining order against appellant for a one year period to July 1,1997, prohibiting appellant from contacting respondent and her children.
On August 15, 1996, appellant filed a petition for guardianship of the children. She contended that she was the children's de facto parent and that the children were being harmed because of respondent's decision to sever their relationship with her. Respondent moved to dismiss the petition, arguing that the restraining order precluded a guardianship *50 and that there were no grounds for guardianship because appellant could not prove that respondent's parental custody was detrimental to the children. On September 27, 1996, the court deferred ruling On the motion, appointed counsel for the children, and set the matter for hearing on October 28, 1996. The trial court ultimately denied the motion on procedural grounds.
A trial on the guardianship petition proceeded on March 24, 1997. The trial court found that appellant was a de facto and psychological parent of the children during the time she lived with respondent but that she subsequently lost that status. The court denied the petition for a guardianship, finding that there was no evidence of "any detriment of significance" to the children in their remaining with respondent without visitation with appellant. The trial court subsequently denied respondent's application for an award of attorney's fees and costs as sanctions. The court further ordered that each party pay $4,500 toward the fees incurred by the court-appointed attorney for the children.
DISCUSSION
I.
The courts of appeal have previously decided that a lesbian partner who is not a biological or adoptive parent is not entitled to custody of children conceived during a samesex bilateral relationship. In Curiale v. Reagan (1990) 222 Cal.App.3d 1597, 272 Cal. Rptr. 520, the court held that a nonparent had no standing to assert a claim for custody or visitation as against a child's natural mother upon termination of the lesbian relationship. The court explained that "[j]urisdiction to adjudicate custody depends upon some proceeding properly before the court in which custody is at issue such as dissolution (Civ.Code, § 4350 et seq.), guardianship (Prob.Code, § 1400 et seq.), or dependency (Welf. & Inst.Code, §§ 600, 725-729).... The Legislature has not conferred upon one in plaintiffs position, a nonparent in a samesex bilateral relationship, any right of custody or visitation upon termination of the relationship." (Id. at p. 1600, 272 Cal.Rptr. 520.) Similarly, the court in West v. Superior Court (1997) 59 Cal.App.4th 302, 309, 69 Cal. Rptr.2d 160, held that the courts have no jurisdiction to entertain the petition of a nonparent in a lesbian relationship for custody and visitation rights. Finally, in Nancy S. v. Michele G. (1991) 228 Cal.App.3d 831, 836, 279 Cal.Rptr. 212, Division One of this court held that a lesbian partner who was not the adoptive or biological parent of children conceived during a lesbian relationship was not entitled to seek custody or visitation of the children under the Uniform Parentage Act (Civ.Code, Former § 7000 et seq.).
Appellant's attempt to obtain visitation rights through a guardianship also fails. As the trial court recognized, there are no cases granting a guardianship in the absence of clear and convincing evidence that parental custody is detrimental to the children. (See Fam.Code, § 3041; In re B.G. (1974) 11 Cal.3d 679, 699, 114 Cal.Rptr. 444, 523 P.2d 244.) A finding that an award of custody to the parents would be detrimental to the child is essential before a court may make an order granting custody to a nonparent. (Ibid.) Further, there is no statutory authority for a limited guardianship providing for visitation rights to a nonparent. The issue is one that must be addressed to the Legislature.
Finally, appellant cannot prevail on her argument that she is entitled to visitation rights because she is a de facto parent of the children. The term, de facto parent, has its genesis in the juvenile dependency system and generally has been used to refer to foster parents caring for dependent children. (See In re B.G., supra, 11 Cal.3d at p. 692, 114 Cal.Rptr. 444, 523 P.2d 244.) The definition of a de facto parent as used in juvenile dependency proceedings and the limited rights of de facto parents are set forth in Cal. Rules of Court, rules 1401, 1410 and 1412, respectively. As the California Supreme Court has explained, "[t]he de facto parenthood doctrine simply recognizes that persons who have provided a child with daily parental concern, affection, and care over substantial time may develop legitimate interests and perspectives, and may also present a custodial alternative, which should not be ignored in a juvenile dependency proceeding. The standing accorded de facto parents has no *51 basis independent of these concerns." (In re Kieshia E. (1993) 6 Cal.4th 68, 77-78, 23 Cal.Rptr.2d 775, 859 P.2d 1290, emphasis added.) The courts nonetheless have recognized de facto or psychological parent status in guardianship and custody proceedings when there was clear and convincing evidence that the continued custody of a child by the biological parents was detrimental to the child. (See, e.g., Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 420-421, 188 Cal.Rptr. 781 [de facto or psychological parents of Down's Syndrome child granted guardianship over objection of child's biological parents, who neglected child's health needs and remained physically and emotionally detached from him]; In re Volkland (1977) 74 Cal.App.3d 674, 679-680, 141 Cal. Rptr. 625 [award of custody to grandmother who was the de facto parent proper where there was a showing that an award of custody to the child's mother would be detrimental to the child].) Aside from dependency cases and those specific instances in guardianship and custody proceedings where there was clear and convincing evidence that parental custody was detrimental to a child, California courts have not accorded de facto parent status to a nonparent over the objection of the biological parents. (See Nancy S. v. Michele G., supra, 228 Cal.App.3d at p. 837, 279 Cal.Rptr. 212 and cases cited therein [recognizing that even if a lesbian partner was granted de facto parent status, she would not be entitled to custody in the absence of a finding that parental custody was detrimental to the children].) Hence, although appellant exhibited the characteristics of a de facto parent during her relationship with respondent, absent any legislative or case authority granting a nonparent visitation rights over the objection of the biological parent and in the absence of any showing of detriment to the child, we cannot grant those rights here.[1]
As is true of most family law cases, this is a difficult case for all involved and we encourage the parties, as did the trial court, to resolve their differences for the benefit of the children.
II.[***]
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
POCHE, J., and REARDON, 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.
[**] Mosk, J., and Brown, J., dissented.
[1] Inasmuch as appellant is not a de facto parent, she cannot establish that she was denied constitutional rights to equal protection, free association and due process.
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262668/ | 83 Cal.Rptr.2d 481 (1999)
71 Cal.App.4th 17
Marie BERGERON, Plaintiff and Appellant,
v.
DEPARTMENT OF HEALTH SERVICES et al., Defendants and Respondents.
No. F029448.
Court of Appeal, Fifth District.
March 31, 1999.
*482 Bourdette & Partners, Miriam Bourdette and Andre P. Gaston, Visalia, for Plaintiff and Appellant.
Daniel E. Lungren, Attorney General, Charlton G. Holland III, Assistant Attorney General, Frank S. Furtek and Michael V. Hammang, Deputy Attorneys General, for Defendants and Respondents.
Certified for Partial Publication.[*]
OPINION
THAXTER, J.
In this appeal from a judgment denying appellant Marie Bergeron's petition for writ of mandate, we hold that due process does not require respondent California Department of Health Services (Department) to hold an administrative hearing as to its right to withhold payment of fees claimed by appellant, a Medi-Cal provider, for dental services she rendered. The decision to withhold was made pending an investigation into appellant's billing practices and was authorized by 42 Code of Federal Regulations section 455.23.
FACTS
Appellant is a dentist engaged in the practice of dentistry in Visalia, California under the name Visalia Dental Practice. Her primary clients during the relevant times were indigent patients who are beneficiaries of Medi-Cal services. Under the Medi-Cal system, appellant provides services to patients entitled to receive Medi-Cal benefits and then bills the Department for the services rendered. The Department, using a fiscal intermediary (Delta Dental), reviews the bills in accordance with the regulatory scheme and, upon approval of appellant's bills, makes payment. The relationship between appellant, as a Medi-Cal service provider, *483 and the Department, as the Medi-Cal payer, is a contractual one governed by applicable state and federal regulations. (42 U.S.C. § 1302 et seq.; Welf. & Inst.Code, § 11000 et seq.; Cal.Code Regs., tit. 22, § 51051 et seq.) Appellant began seeing Medi-Cal patients at her clinic in Visalia in August of 1994. Initially she was paid promptly for her services. Thereafter towards the end of 1994, she began having problems with payments. According to appellant, the Department routinely denied payments for root canals and other services performed by her office, delayed payments for work performed, and routinely required repetitive submission of bills even after additional documentation was provided. As she continued her attempt to seek timely reimbursement, the relationship between appellant and the agency became strained.
In November 1996 the conflict reached a crisis. In appellant's own words, in attempting to obtain payment of approximately $200,000 in unpaid bills, she "went ballistic" in a phone call to an agency administrator, questioning the competency and integrity of the system and its administrators and threatening legal action. Three days later, Investigator Kirk Worthan, from the California Department of Justice, Bureau of Medi-Cal Fraud (Bureau), sought and obtained a search warrant for appellant's business offices. The search warrant was the result of an ongoing fraud investigation initiated after the investigator received information from appellant's estranged husband concerning appellant's billing practices.
On November 12, 1996, respondent Robert Pierson, Chief of the Office of Medi-Cal Dental Services, who supervises the dental services portion of the Medi-Cal program, received a letter from the Bureau asking the Department to withhold temporarily all payments to appellant. As a result of the request, Pierson ordered Delta Dental to withhold payments. Under federal law (42 C.F.R. § 455.23), the Department has the discretion to withhold payments upon a showing of reliable evidence the circumstances involve fraud or willful misrepresentation. The Department's policy is to withhold payments when requested to do so by the Bureau. The Bureau is the agency responsible for the detection and investigation of Medi-Cal fraud, a function mandated by the federal Medicaid program. (42 U.S.C. § 1302; 42 C.F.R. §§ 455.12-455.23.)
The Department provided appellant with written notification that payments were to be withheld and referenced its authority for doing so. The letter, dated February 10, 1997, advised appellant she had a right to submit written evidence for "consideration by the Department of Health Services." The letter did not provide a detailed explanation of the disputed billings' or give a detailed factual account of the fraud allegations, although appellant did apparently receive a later packet of information which included the search warrant and supporting affidavits which identified some of the specific allegations of fraudulent billing.
The total amount of the withheld payments was $89,000. On March 7, 1997, appellant responded to the Department and attempted to answer the charges. She requested the payment of all or at least part of the money owed.
On April 30, 1997, the Department notified the Bureau it would cancel the "withhold" within 30 days if additional evidence of fraud was not provided or if criminal action had not been initiated. On May 30, 1997, the Department informed appellant it would pay her $39,000 owed and would lift the "withhold" of future billings, but it would continue to hold $50,000. The Bureau's position was that it had reviewed only a small percentage of billing records within the period of time appellant's billing practices were suspect and the number of discrepancies found indicated a "pattern of fraudulent activity."
On June 18, 1997, the State Attorney General's Office filed a criminal complaint in Sacramento Municipal Court charging appellant with three separate counts of Medi-Cal fraud: specifically, by billing during the period between August 29, 1991, and April 30, 1997, for services not provided.
This is not an action brought by the Department to limit or condition receipt of appellant's payments pursuant to Government Code section 11503, nor are the circumstances *484 of this case such as to invoke the administrative appeal process established by Welfare and Institutions Code section 14171 to review grievances or complaints arising from audits or examinations of Medi-Cal providers. In these types of proceedings, a hearing would have been provided appellant. The Department, despite appellant's repeated request for one, took and continues to take the position that no hearing is provided for by statutory or regulatory law when the withholding is pursuant to 42 Code of Federal Regulations section 455.23.
DISCUSSION
I. This is an Appealable Order[**]
II. The Trial Court Correctly Denied the Writ
Appellant contends the trial court erred when it refused to issue the requested writ of mandamus because under constitutional and statutory authority she was entitled to a preor post-deprivation hearing before her Medi-Cal payments could be withheld. Respondents counter that appellant has not shown there existed a clear duty to provide a hearing, and therefore appellant is not entitled to the relief sought.
Section 1085 of the Code of Civil Procedure authorizes a trial court to issue a writ of mandate to compel an act which the law specifically requires. A petitioner seeking a writ of mandate under this section is required to show the existence of two elements: a clear, present and usually ministerial duty upon the part of the respondent, and a clear, present and beneficial right belonging to the petitioner in the performance of that duty. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540, 28 Cal.Rptr.2d 617, 869 P.2d 1142; Sego v. Santa Monica Rent Control Bd. (1997) 57 Cal.App.4th 250, 255, 67 Cal. Rptr.2d 68; Thorning v. Hollister School Dist. (1992) 11 Cal.App.4th 1598, 1603, 15 Cal.Rptr.2d 91.) Because the duty here asserted is one allegedly arising out of statute and/or constitutional guaranty, this court must engage in de novo review of the trial court's refusal to issue the writ. (Los Angeles Lincoln Place Investors, Ltd. v. City of Los Angeles (1997) 54 Cal.App.4th 53, 59, 62 Cal.Rptr.2d 600.)
A. There was no duty to conduct a hearing under statute or regulation
We agree with respondents that appellant has shown no clear duty. She relies upon two federal regulations, 42 Code of Federal Regulations sections 455.13(b) and 455.23, and the due process clause of the United States Constitution to impose a duty to permit an administrative hearing prior to or after implementing a hold on payments owed to Medi-Cal providers.
First, neither of the regulations cited requires a hearing before a hold can be placed on Medi-Cal payments owed to a provider. The first regulation, 42 Code of Federal Regulations section 455.13, requires as a condition to receiving federal Medicaid funds that the state agency have a method for the investigation of fraud which does not infringe upon the due process rights of persons involved. It is undisputed no express language exists which would require a hearing in circumstances such as these, i.e., where a hold has been implemented during the pendency of a fraud investigation. Likewise, the express language of 42 Code of Federal Regulations section 455.23 allows for the withholding of payments without notice to the provider and provides only that administrative review must be granted if state law requires it. It is again undisputed there is no state law requirement for a hearing under the circumstances of this case.
Having pointed to no legislative or regulatory enactment requiring a hearing, appellant's position must rise or fall on her due process argument. We will conclude that the statutory scheme does not deny appellant due process.
B. Property interest in funds
Due process requires reasonable notice and opportunity to be heard before governmental action may deprive an individual of a significant property interest. *485 (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612, 156 Cal.Rptr. 718, 596 P.2d 1134; Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428-430 & fn. 5, 102 S.Ct. 1148, 71 L.Ed.2d 265.) Respondents counter appellant has no property interest at stake, and thus she has no cognizable due process claim, citing Schroeder v. McDonald (9th Cir.1995) 55 F.3d 454, 462, Erickson v. United States ex rel. Department of Health and Human Services (9th Cir.1995) 67 F.3d 858, and Levin v. Childers (6th Cir.1996) 101 F.3d 44. Respondents are correct that there is no property interest in continued participation in the Medi-Cal program, but as appellant contends, they have misunderstood the nature of appellant's position. She is not seeking continued participation in the program. Indeed, according to Department's letter of April 30, 1997, her future participation is not threatened. What she is seeking is payment of claims for services already approved by the Department pursuant to her contract with the state to provide dental services to Medi-Cal beneficiaries.
Were we writing on a clean slate, we might be inclined to hold that the delay in payment of appellant's contractual claim does not constitute a deprivation of a significant property interest. Although the resolution of her claim might be dependent on litigation, appellant would retain the same property interest she had before, notwithstanding the Department's decision to withhold payments pending the fraud investigation. (Cf. San Bernardino Physicians' Services Medical Group, Inc. v. County of San Bernardino (9th Cir.1987) 825 F.2d 1404, 1408-1409 [although contractual claim may be a property interest, it is not necessarily entitled to federal due process protection]; see also G & G Fire Sprinklers, Inc. v. Bradshaw (9th Cir. 1998) 156 F.3d 893, 908-909 (dis. opn. of Kozinski, J.).)
The Ninth Circuit Court of Appeals has spoken, however, in G & G Fire Sprinklers, Inc. v. Bradshaw, supra, holding that moneys owed under a public works contract for work already performed is property entitled to due process protection before the state may withhold payment. (156 F.3d at pp. 901-902 (plur.opn.).) Although the instant case involves a contract for rendition of dental services, rather than construction of public works, we see no meaningful distinction and will accordingly follow the Ninth Circuit's holding.
C. Due process does not require an administrative hearing
The fault with appellant's analysis lies not with her claim of a property interest, but her misunderstanding of what due process requires. Due process does not require a particular type of hearing. "A formal hearing, with full rights of confrontation and cross-examination is not necessarily required." (Saleeby v. State Bar (1985) 39 Cal.3d 547, 565, 216 Cal.Rptr. 367, 702 P.2d 525.) What due process does require is notice reasonably calculated to apprise interested parties of the pendency of the action affecting their property interest and an opportunity to present their objections. (Nasir v. Sacramento County Off. of the Dist. Atty. (1992) 11 Cal.App.4th 976, 985, 15 Cal. Rptr.2d 694.) "`Due process' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts." (Hannah v. Larche (1960) 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307.) The extent to which due process protections are available depends on a careful balancing of the interests at stake. (People v. Ramirez (1979) 25 Cal.3d 260, 269, 158 Cal.Rptr. 316, 599 P.2d 622; Mathews v. Eldridge (1976) 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18.) In some instances, "due process may require only that the administrative agency comply with the statutory limitations on its authority." (People v. Ramirez, supra, at p. 269, 158 Cal.Rptr. 316, 599 P.2d 622.)
In addition, the timing of the notice and a hearing may vary depending on the issues at stake. Multiple courts have recognized the validity of postdeprivation hearings held within a reasonable time after the property is seized. (See Federal Deposit Ins. Corp. v. Mallen (1988) 486 U.S. 230, 242, 108 S.Ct. 1780, 100 L.Ed.2d 265.)
Under the governing regulations, the Department is permitted, in fact encouraged, pursuant to 42 Code of Federal Regulations *486 section 455.23 to withhold payments to Medi-Cal providers when provided with reliable evidence that there has been fraud or willful misrepresentation in the practices of the provider. In an obvious effort to comport with the dictates of due process, the regulation carefully lays out the limitations of the state agency's authority to take such action. They include: 1) notice must be given to the provider stating the "general allegations as to the nature of the withholding action, but need not disclose any specific information concerning its ongoing investigation"; 2) the notice must state the regulatory authority for the withholding and advise the provider he or she may submit written evidence for consideration by the agency; and 3) the withholding must be temporary, continuing only until a final resolution of the allegations of fraud. (42 C.F.R. § 455.23; see also Levin v. Childers, supra, 101 F.3d at p. 47.) The regulatory scheme is obviously designed to parallel a criminal investigation by the agency or a state fraud prosecuting unit. It is temporary in nature in order to hold the status quo and protect the government's monetary interests until the criminal investigation ends in either abandonment or a judicial proceeding.
It is helpful to understand the Department in this case is not the prosecuting agency. Under the state scheme, the Bureau is charged with investigating possible criminal violations of statutes intended to protect the integrity of the Medi-Cal program, which includes investigating possible fraudulent billing practices. (Welf. & Inst.Code, § 14107; see also 42 C.F.R. § 455.1.) The Department was never in a position to adjudicate the validity of the fraud allegations. Under 42 Code of Federal Regulations section 455.23, the Department withheld payments to appellant only after being notified of the Bureau's investigation of appellant's billing practices and after receiving from it evidence establishing cause to believe appellant was engaging in fraudulent billing practices. The search warrant affidavit, later provided to appellant in connection with the notification letter of February 10, 1997, laid out in part the nature of the allegations and the finding by a neutral magistrate that probable cause existed to support the warrant for search of appellant's offices. This was sufficient under the notice requirements of 42 Code of Federal Regulations section 455.23. It was not necessary to provide a detailed account of the incidents being investigated. To do so would jeopardize the investigation. The statute only requires notice generally of the allegations supporting the investigation. (42 C.F.R. § 455.23(b).)
In addition, the regulation requires an opportunity to respond in the form of written evidence to the notice of withhold. Appellant was told she could submit written evidence for consideration by the Department. It seems clear this opportunity to be heard is not intended to provide a contested proceeding at which adjudication of the allegations are conducted. The clear intent of the regulatory scheme is that the adjudication of the allegations is to occur at a criminal proceeding, unless the matter is voluntarily dropped by the prosecuting authority for lack of evidence. (42 C.F.R. § 455.23(c).) However, this opportunity to respond is an important safeguard for situations in which the Department may be withholding moneys not subject to the regulatory withhold authority, to clarify mistaken identity, clerical error, or, as in this instance, to seek release of partial payments and/or to clarify future intentions concerning participation in the program. Appellant responded by providing the Department with information concerning the scope of the fraudulent billings allegation. Upon receiving her response, the Department agreed to release $39,000 in payments. Appellant obtained substantial relief through the regulatory procedure.
Neither party has cited a case directly on point, and we have found none. However, there are cases which, by analogy, support our conclusions. For example, in Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 4 Cal.Rptr.2d 837, 824 P.2d 643, a public hospital district hired private contractor Lusardi to build new facilities. The hospital told Lusardi the project was not a "public work" and did not require compliance with the prevailing wage statute. Labor Code section 1720 et seq. requires all contractors building public works pay prevailing wages and requires the public agency to include prevailing wage provisions in its contracts. *487 No prevailing wage provision was placed in the contract with Lusardi. The director of the Department of Industrial Relations (DIR) is the state official charged with enforcing the statute. The statute allows for withholding and forfeiture of payments already earned to contractors who fail to comply with the statute.
In Lusardi there were no payments withheld. Lusardi's challenge was to a finding that it was subject to the prevailing wage provisions, which would undoubtedly cost Lusardi much since it made Lusardi immediately liable for the increased wages and fines. The court considered Lusardi's due process claims and in so doing, stated the determination by the Director of DIR as to whether a construction project was a "public work" within the meaning of the statute was not an adjudication invoking procedural due process rights to a hearing, although it significantly affected the financial and contractual interests of the private contractor. The court pointed out that these types of decisions are similar to those of a prosecutor who decides whether to file charges. Clearly the decision whether to file charges is not subject to a hearing initially. Instead, there are varying degrees of due process guaranties down the road, and it is ultimately anticipated a full adjudication of the issues will take place in court, with full due process guaranties afforded. (Lusardi Construction Co. v. Aubry, supra, 1 Cal.4th at pp. 990-993, 4 Cal. Rptr.2d 837, 824 P.2d 643.)
Similarly, in this case the Department is acting to preserve the status quo for the Bureau, which will make a determination whether there is sufficient evidence to seek a court adjudication of the fraud charges. There are procedural due process mechanisms in place under 42 Code of Federal Regulations section 455.23 and if the matter goes to court, a full contested hearing will be afforded.
In another case arising under the Labor Code, the Ninth Circuit struck down the state's withhold procedures as unconstitutional where no pre- or post-deprivation hearing was afforded and payments withheld could be distributed directly to employees or revert to the state's general fund without there ever being a hearing of any kind. (G & G Fire Sprinklers, Inc. v. Bradshaw, supra, 156 F.3d 893.) In considering whether the state's statutory scheme complied with due process, the court emphasized a postdeprivation hearing to determine whether the law had been violated would be acceptable under current law. Citing recent United States Supreme Court cases, the Ninth Circuit said postdeprivation hearings, so long as reasonably prompt, are permissible where a balancing of the interests establish it appropriate to hold the hearing post- rather than pre-deprivation. (Id. at p. 903, citing Federal Deposit Ins. Corp. v. Mallen, supra, 486 U.S. at p. 242, 108 S.Ct. 1780.) Specifically, the court held the state's interest in enforcing its prevailing wage statutes is sufficient to justify the withholding of funds "pending the outcome of whatever kind of hearing may be afforded." (G & G Fire Sprinklers, Inc. v. Bradshaw, supra, at p. 904, italics added.)
This is exactly what the Medi-Cal fraud investigation scheme envisions. The state and federal interest in maintaining the integrity of the Medi-Cal system and preserving limited resources for those in need justifies the temporary withholding of payments to those believed to be engaged in fraudulent billing practices until there can be a criminal investigation and the initiation of criminal proceedings or a conclusion that the evidence will not support one. Given the procedural notice mechanisms and the opportunity afforded a provider to respond to the withholding notice, the dictates of due process have been met. To find otherwise would force the Department to conduct a fully contested hearing on the issue of whether appellant had engaged in fraudulent billing practices, and force the Bureau to reveal the fruits of its investigation at a premature stage. This would unnecessarily interfere with the federally mandated investigative arm of the Medi-Cal scheme. Moreover, this is a contractual relationship and appellant knew or is charged with knowing the terms governing her contract. She essentially agreed to the withholding mechanism designed to protect the government's interest in minimizing risks to the limited resources posed by fraudulent provider billing practices.
*488 Finding no due process violations, no regulatory or statutory requirement that the Department conduct a hearing either before or after deciding to withhold payments and finding it would frustrate the legislative objectives to minimize fraud in the Medicaid/Medi-Cal system to require any hearing other than a judicial one, we conclude the trial court correctly denied the writ of mandamus. There is no clear duty to be mandated.
DISPOSITION
Judgment affirmed. Costs to respondents.
ARDAIZ, P.J., and BUCKLEY, 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 I. of Discussion.
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262690/ | 84 Cal.Rptr.2d 204 (1999)
71 Cal.App.4th 1240
Eloise GILBERT, Plaintiff and Appellant,
v.
NATIONAL CORPORATION FOR HOUSING PARTNERSHIPS et al., Defendants and Respondents.
No. A080116.
Court of Appeal, First District, Division Three.
April 29, 1999.
Rehearing Denied May 24, 1999.
Review Denied July 28, 1999.
*205 Law Offices of Robert Blumenthal and Robert H. Blumenthal, Riverside, for Plaintiff and Appellant.
Hancock Rothert & Bunshoft, David Suddendorf, San Francisco; Krupen Greenbaum & O'Brien, Carolyn D. Chebrow and Jonathan W. Greenbaum, Washington, D.C., for Defendants and Respondents.
McGUINESS, P.J.
On the eve of trial, the trial court disqualified appellant Eloise Gilbert's attorney because of a conflict of interest created by his simultaneous representation of her and other clients in a different case. The trial court found that in attempting to advance appellant's interests by calling one or more of his other clients as witnesses in appellant's case, the attorney risked harming his other clients' interests in violation of the terms of a settlement agreement he had negotiated in the other case. Appellant now contends that by disqualifying her attorney, the trial court *206 denied her due process and a fair hearing. We conclude the trial court was within its broad discretion and acted appropriately to maintain ethical standards of professional responsibility and to preserve public trust in the administration of justice and the integrity of the bar. We therefore affirm.
I. Factual and Procedural Background
In the summer of 1994, Edwin "Teddy" Franklin and three other maintenance supervisors employed by respondent National Corporation for Housing Partnerships (NHP) retained the law offices of Robert H. Blumenthal (appellant's attorney) to file a complaint against NHP alleging unequal pay, racial harassment and discrimination in the workplace. In response to demand letters from appellant's attorney, NHP proposed that the dispute be resolved through private mediation. The parties selected a mediator through the American Arbitration Association.
Prior to mediation, appellant's attorney requested certain personnel information from respondent NHP. In response, NHP provided confidential information on the NHP salary structure and the race of individual NHP employees. NHP provided this information on the express conditions that it was "for the sole purpose of the mediation," and that "[t]he California Evidence Code with respect to confidentiality will be adhered to."[1] (Italics in original.)
The parties proceeded to mediation, in which appellant's attorney successfully negotiated a settlement with NHP on behalf of Franklin and his coemployees. The mediator drafted a "Memorandum of Agreement" (MOA) setting forth the essential terms of the settlement. Among other things, the MOA provided that the complaining employees would receive payments for personal injuries and their salaries would be adjusted upward. The MOA included a statement that "[s]aid payments shall not constitute an admission of any wrongdoing by [NHP] but are solely made to avoid costly and time-consuming litigation," and provided that "[t]he terms of this MOA and of the final settlement agreement to be executed within 7 days are to be kept strictly confidential by all parties." Each of the four complaining NHP employees signed the MOA, as did appellant's attorney.
Pursuant to the MOA, the parties prepared four separate settlement agreements (the Settlement Agreement), one for each of the four complaining employees. Each Settlement Agreement contained substantively the same provisions, including a confidentiality clause (the Confidentiality Clause) stating: "The parties agree to keep the fact of this *207 Settlement and this Agreement, and each of its terms, strictly confidential. This provision does not apply to discussions between the Employee and his counsel, the Law Offices of Robert Henry Blumenthal." Immediately following this Confidentiality Clause in the text of each Settlement Agreement was a penalty clause (the Penalty Clause) stating: "The Employee agrees that in the event of a breach by him of the confidentiality provision of the preceding paragraph, then the Employer [NHP] shall be entitled to recover from the Employee the amounts paid under ... this Agreement, together with costs, expenses and attorney's fees associated with enforcement of the Agreement." All four of the employees represented by appellant's counsel signed individual Settlement Agreements containing this same Confidentiality Clause and Penalty Clause. In October 1994, appellant's attorney requested final executed copies of each Settlement Agreement, "along with four checks payable to Robert Blumenthal and the respective Claimant."
In April 1995, Attorney Blumenthal sent a letter to counsel for NHP stating that he represented appellant, "another employee of NHP..., who has a discrimination claim of underpayment similar to the claims of Edwin Franklin and others, which was settled last year. [¶] If you are authorized to act in this case, I would like to proceed with settlement negotiations." (Italics added.)
Appellant was terminated from her employment at NHP in June 1995. On July 21, 1995, she filed a complaint for damages against NHP, alleging wrongful termination, discrimination in promotion and pay based on race and age, and retaliation for filing administrative complaints under the California Fair Employment and Housing Act (Gov.Code, § 12900, et seq.) (FEHA). On NHP's motion for summary judgment or summary adjudication, the trial court denied summary judgment but granted summary adjudication as to appellant's causes of action for discrimination based on unequal pay and failure to promote, breach of an implied contract of continued employment, and breach of the implied covenant of good faith and fair dealing. In the context of opposing these motions, appellant offered a declaration by Franklin alleging that NHP failed to pay salaries according to company guidelines for reasons based on racial discrimination and retaliation.
At the outset of trial on March 7, 1997, NHP moved in limine to exclude Franklin's testimony on the ground any dispute he may have had with NHP had already been resolved pursuant to the confidential Settlement Agreement, and Franklin should not be permitted to testify about any matters made confidential by that Settlement Agreement.[2] In response to questions from the trial court, appellant's attorney stated he intended to call Franklin to testify about complaints he had heard from other NHP employees and his own observation of alleged racial discrimination and harassment in the workplace environment; NHP's failure to take action in response to complaints about this alleged discrimination and harassment; NHP's alleged retaliatory actions against employees who took legal action; and NHP's allegedly racially-motivated failure to pay employees' salaries in accordance with NHP's own guidelines.[3] Because appellant wanted *208 Franklin to testify even though Franklin might violate the Settlement Agreement's Confidentiality Clause if he did so, the trial court expressed serious concern that appellant's counsel had a conflict of interest in continuing to represent both of them. The court therefore requested further briefing on this issue.[4]
In response, appellant submitted declarations by herself, Franklin, and her attorney. NHP submitted a formal motion to disqualify appellant's counsel, supported by declarations and extensive briefing. At a hearing on March 10, 1997, the trial court granted appellant's request for more time to submit opposition to NHP's motion. On March 11, 1997, appellant submitted three more declarations from herself, Franklin, and her attorney.
In her two declarations, appellant stated she had "worked closely" and "shared information" with her nephew Franklin and the other three complaining employees "on issues of racial harassment in the workplace and salary and promotion discrimination at NHP's Hunters Point properties"; she had *209 not participated in the earner mediation of the claims of Franklin and the others because she was in the hospital at the time; she learned about the Settlement Agreement from Franklin, NHP business records and other employees; she had "no interest adverse to my nephew, Teddy Franklin"; "[f]rom the beginning Mr. Blumenthal has been representing us in our mutual goals"; "[t]o my knowledge we will not offer any evidence in the case which was confidential when it was obtained"; and "to disqualify my attorney at this time will have a harmful effect on me and my case."
Franklin's declarations were substantially similar to appellant's. In his March 10, 1997, declaration, Franklin stated he had "worked closely" with appellant and "shared information" with her "about the harassment, salary discrimination and ... conditions in our workplace" caused by alleged racial discrimination; in August 1994, along with three other employees, Franklin and appellant had retained Blumenthal to represent them in their dispute with NHP; Franklin had participated with the other maintenance supervisors in mediation with NHP; when he signed the Settlement Agreement in October 1994, he "understood that thereafter I was agreeing not to disclose the fact that the company and the four maintenance supervisors had entered into [an] agreement or the terms of the [Settlement Agreement]"; because appellant's "claims had not been resolved I did not agree to keep confidential my knowledge of the workplace harassment and the salary discrimination issues"; he "was never asked to keep these issues confidential"; he wanted to testify in appellant's case "on the issues of racial harassment in the workplace, discrimination in salaries and promotions, the failure of the company to take corrective action and the company's retaliatory conduct"; and "I do not believe any conflict exists between the [Settlement Agreement] I signed and my giving such testimony."
In his subsequent March 11, 1997, declaration, Franklin stated he and the other complaining NHP employees all discussed the Settlement Agreement with Blumenthal and the mediator, and agreed to NHP's request for a "confidentiality provision"; he personally warned his fellow NHP maintenance supervisors "not to say anything about the terms of the [Settlement Agreement]"; he has "no interest adverse" to appellant; and "[f]rom the very beginning Mr. Blumenthal has been representing both of us."
In his own first declaration of March 10, 1997, appellant's attorney discussed his participation in the mediation and his negotiation of the Settlement Agreement on behalf of Franklin and the other three maintenance supervisors. Blumenthal's declaration stated that the only confidentiality agreement was to keep the fact of the Settlement Agreement and its terms confidential, not to keep confidential the "subject matter" of the Settlement Agreement or "the facts and circumstances of the harassment and the discrimination"; and "[appellant] does not intend to offer in evidence the [Settlement Agreement]s, or any of their terms, or the fact of settlement through the testimony of Teddy Franklin or anyone else. Mr. Franklin and the three other maintanence [sic] supervisors will testify merely as witnesses to their knowledge of the events and circumstances of discrimination and harassment in the workplace in connection with [appellant's] retaliation claim."
In his subsequent declaration of March 11, 1997, appellant's attorney stated that NHP did not supply him or his clients with any information during the mediation and negotiation of Settlement Agreement; he "will not be using in [appellant's] case any information that was confidential when it was obtained"; he had not incorporated into appellant's action any confidential information or evidence "that was wrongfully acquired"; appellant "does not intend to introduce any testimony adverse to the interest of the maintenance supervisors"; and appellant had learned of the settlement from Franklin before it was reduced to writing. Blumenthal also complained that he had not had an adequate opportunity to respond to the motion to disqualify.
At the continued hearing on March 11. 1997, appellant's attorney requested additional time to file points and authorities, which NHP opposed. The trial court did not grant this request. After reviewing appellant's additional *210 declarations and written submissions, the trial court stated: "The concern I have with regard to the updated memos, frankly, is that they confirm the concerns of the court. Certainly the four individuals who entered into the confidential settlement, it is evident from the declaration wish to testify, [¶] The problem we run into there is that these individuals have settled for certain agreements, some of which involve money, some of which involve changes of assignments, the point being there comes a point where if the wrong thing is said by any of these individuals, it may be treated as a violation of that confidential order and confidential settlement such that money might have to be returned, jobs might be cancelled and various other things might occur, [¶] The point is, if these people take the stand, the situation is such that counsel is not in a position[]since he represents the [appellant] who, of course, wants them to testify[]is not in a position to also advise them of their rights and liabilities if they do, in fact, testify and do, in fact, say, for want of any other word, the wrong thing. [¶] Under all of the circumstances, counsel, the court does find that there is a conflict here. Under these circumstances, the remedy is the granting of the motion to disqualify counsel." The trial court thereupon granted the motion to disqualify and removed the matter from the trial calendar in order to give appellant time and opportunity to obtain new counsel.[5]
Appellant appeals from the order of disqualification.
II. Standard of Review
We review a disqualification order for abuse of discretion. (Forrest v. Baeza (1997) 58 Cal.App.4th 65, 73, 67 Cal.Rptr.2d 857; Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1838, 43 Cal.Rptr.2d 327; Truck Ins. Exchange v. Fireman's Fund Ins. Co. (1992) 6 Cal. App.4th 1050, 1055, 8 Cal.Rptr.2d 228.) Where a trial court has discretionary power to decide an issue, we are not authorized to substitute our judgment for that of the trial judge; the trial courts exercise of discretion will not be disturbed in the absence of a clear showing of abuse. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58; Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 650-651, fn. 7, 190 Cal.Rptr. 355, 660 P.2d 813; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 356, pp. 404-405.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the trial court. Reversible abuse exists only if there is no reasonable basis for the court's action. (Walker v. Superior Court (1991) 53 Cal.3d 257, 272, 279 Cal.Rptr. 576, 807 P.2d 418; Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479, 243 Cal.Rptr. 902, 749 P.2d 339; Metro-Goldwyn-Mayer, Inc., supra, 36, Cal.App.4th at p. 1838, 43 Cal.Rptr.2d 327; In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 585, 283 Cal.Rptr. 732; Eisenberg, Horvitz & Wiener, Cal. Practice Guide: Civil Appeals and Writs 1 (The Rutter Group 1995) ¶¶ 8:87-5:87.1.) The burden is on the complaining party to establish an abuse of discretion. The showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion. (Blank v. Kirwan, supra, 39 Cal.3d at p. 331, 216 Cal.Rptr. 718, 703 P.2d 58; Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193; In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138, 63 Cal.Rptr.2d 894.)
That is the situation in this case. We conclude appellant has failed to bear her burden of establishing the trial court abused its discretion in disqualifying her trial attorney. She makes four arguments: (1) in determining that a Conflict of interest existed, the trial court misinterpreted the Settlement Agreement's Confidentiality Clause; (2) disqualification was an improper *211 remedy under the circumstances of this case; (3) appellant had insufficient time to respond to the disqualification motion; and (4) the trial court did not adequately balance the conflicting interests of the parties or express its reasoning on the record. We must reject each of these arguments.
III. Conflict of Interest
Appellant first contends that in concluding that Blumenthal's continued representation of both Franklin and appellant posed a conflict of interest, the trial court misinterpreted the scope of the Confidentiality Clause in the Settlement Agreement. Appellant points to the precise wording of the Confidentiality Clause, which requires only that "the fact of this Settlement and this Agreement, and each of its terms," be kept "strictly confidential." (Italics added.) According to appellant, the testimony of Franklin and the other NHP employees who signed the Settlement Agreement would not have violated this provision, because appellant's attorney promised that Franklin's testimony would be limited to their personal knowledge of facts and events underlying the settlement, rather than the fact of the Settlement Agreement itself or the nature of its terms.
Appellant's argument fails for several reasons. First, appellant has been overly generous in her interpretation of what appellant's attorney actually promised the trial court. In his March 11, 1997, declaration submitted in opposition to the motions in limine and to disqualify, Blumenthal promised under oath only that he "will not be using in [appellants] case any information that was confidential when it was obtained," and that appellant "does not intend to introduce any testimony adverse to the interest of the maintenance supervisors." (Italics added.) Even though much of the testimony to which Franklin would presumably testify may not have been confidential "when it was obtained," it arguably became so as soon as Franklin signed the Settlement Agreement with its Confidentiality Clause. A promise not to use information that was confidential before the execution of the Settlement Agreement obviously begs the question whether the information in question subsequently became confidential as a result of the Confidentiality Clause. Such a promise is essentially meaningless.[6]
Similarly, the statement that appellant "does not intend" to introduce any testimony "adverse to the interest" of Blumenthal's other clients, Franklin and his NHP coemployees, promised nothing and offered scant solace to their interests. Written as it was in the context of Blumenthal's vigorous prosecution of appellant's litigation, this statement ignores the very real danger to Franklin and to Blumenthal's other clients posed by any testimony they might give in this case. Whatever the intent of appellant's attorney, the Confidentiality Clause clearly imposed significant limits on what, if anything, the four signatories could safely say about the facts underlying the Settlement Agreement. Any transgression of the Confidentiality Clause, intentional or not, would bring upon them the severe sanctions set out in the Penalty Clause of the Settlement Agreement. *212 The trial court quite properly feared that appellant's attorney would be unable to prevent Franklin from crossing into prohibited territory while the attorney was simultaneously trying to elicit testimony helpful to appellant's case, much less while Franklin was being subjected to cross-examination by NHP's attorney. The trial court was correct in concluding that appellant's attorney underestimated the tremendous risks placed on Franklin and his other clients by their testimony here.[7]
Moreover, appellant seriously misjudges the scope of an attorney's duty to his client and thereby underestimates the conflict of interest between Blumenthal's representation of appellant in this case and his continued representation of Franklin and the other NHP employees. Because of his simultaneous representation of appellant and the other complaining NHP employees, appellant's attorney could not adequately counsel Franklin or the others about the severity of the detriment to them if their testimony happened to enter confidential territory. Indeed, it is evident from the record that appellant's attorney in fact had not adequately counseled Franklin, or else was unwilling or unable to prevent him from testifying about confidential matters. Both of Franklin's declarations, prepared by appellant's attorney and submitted on appellant's behalf in opposition to the motions in limine and to disqualify, repeatedly mentioned both the fact of the Settlement Agreement and its terms. Even under appellant's narrow reading of the Settlement Agreement, these statements clearly transgressed the scope of the Confidentiality Clause. It was for good reason that Franklin's declarations "confirm[ed] the concerns of the court."
Even if appellants attorney could successfully prevent Franklin or his other clients from testifying about matters made confidential by the Settlement Agreement, a conflict of interest would necessarily still exist. One of the principal obligations of every attorney is to protect each of his or her clients in every possible way. It is a clear violation of that duty for the attorney to assume a position adverse or antagonistic to the client without the latter's free and intelligent consent, given with full knowledge of all the facts and circumstances. Thus, an attorney may not do anything which could divert the attorney's attention from the client's business or lessen the amount of energy the attorney can give to the client's interests. In this regard, the intention or motives of the attorney are irrelevant. "`The rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent.' [Citation.]" (Flatt v. Superior Court (1994) 9 Cal.4th 275, 289, 36 Cal.Rptr.2d 537, 885 P.2d 950; Anderson v. Eaton (1930) 211 Cal. 113, 116, 293 P. 788.) Thus, a conflict of interest exists whenever a lawyer's representation of one of two clients is rendered less effective because of his representation of the other. (Flatt v. Superior Court, supra, 9 Cal.4th at p. 289, 36 Cal.Rptr.2d 537, 885 P.2d 950; Spindle v. Chubb/Pacific Indemnity Group (1979) 89 Cal.App.3d 706, 713, 152 Cal.Rptr. 776.)[8]
It is reasonable to conclude that any evidence NHP had recently settled employee claims similar to those made by appellant in *213 this litigation was evidence that could have advanced appellant's case. Appellant knew about the Settlement Agreement and the underlying facts herself. As seen in her own declaration, appellant obtained this information independently of her attorney. Not being a party to the Settlement Agreement, she was not bound by its Confidentiality Clause. Thus, she could have presented this evidence herself without the assistance of Franklin or any of the others. To the extent her attorney curtailed his presentation of this favorable evidence in an attempt to reconcile the divergent interests of his multiple clients and the obligations of confidentiality arising from his own participation in the mediation and negotiation of the Settlement Agreement, he necessarily violated his duty of loyalty to appellant.[9]
As an advocate for appellant, counsel's duty was to utilize the available witnesses to attempt to support appellant's claims against NHP. As an advocate for Franklin and the other maintenance supervisors, on the other hand, counsel's duty was to assist in avoiding potential liability for breaching the Settlement Agreement he himself had negotiated on their behalf. Appellant wanted her attorney's other clients to testify in her own case, even though they risked violating the Settlement Agreement and compromising their own interests by doing so. Under the circumstances presented, this conflict of interest was irreconcilable. We conclude the trial court did not abuse its discretion in determining there was an inherent conflict of interest in Blumenthal's continuing, simultaneous representation of appellant and the other complaining NHP employees.
IV. DISQUALIFICATION AS REMEDY
Appellant contends disqualification was the wrong remedy in this case, and that any potential conflict in interest "could have been more appropriately handled by requiring independent counsel for the witness before permitting the witness to testify." Under the circumstances presented here, we conclude the trial courts decision to disqualify appellant's counsel was not improper.
Although the law places great emphasis on the importance of a client's ability to retain the attorney of his or her choice, on occasion this interest must yield to the even more important public policy of maintaining the integrity of the judicial process. As recently reaffirmed by Division Two of this court: "`The issue of disqualification "ultimately involves a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. The paramount concern, though, must be the preservation of public trust in the scrupulous administration of justice and the integrity of the bar. The recognized and important right to counsel of one's choosing must yield to considerations of ethics that run to the very integrity of our judicial process."' [Citations.]" (Forrest v. Baeza, supra, 58 Cal.App.4th at p. 73, 67 Cal.Rptr.2d 857.)
Rule 3-310 of the California Rules of Professional Conduct provides in pertinent part: "(C) A member shall not, without the informed written consent of each client: [¶] (1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or [¶] (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or [¶] (3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter." As this rule's official discussion notes, a lawyer must disclose "the potential adverse aspects of such multiple representation" and obtain his or her clients' informed written consent to the potential conflict. If the potential conflict becomes actual, the attorney must then obtain the clients' further informed written consent. (23 West's. Cal.Codes Ann. Rules, pt. 3 (1996 ed.) p. 372.)
*214 There is no evidence in the record of this case that either appellant, Franklin, or any of the other complaining NHP employees ever gave informed written consent to the actual conflict of interest posed by their attorney continuing to represent all of them in connection with this matter. In their declarations, appellant and Franklin simply state their opinion or belief that their attorney would continue to represent both of their interests. They do not attempt to reconcile this belief with the clear and definite conflict of interest posed by their attorney's continued simultaneous representation of them and his efforts to obtain Franklin's testimony about facts underlying the confidential Settlement Agreement which Franklin signed. In fact, the declarations indicate that neither appellant nor Franklin had any appreciation at all of "the potential adverse aspects of such multiple representation." (23 West's. Cal.Codes Ann. Rules, pt. 3, supra, p. 372.) Clearly, as a threshold matter one must know of, understand and acknowledge the presence of a conflict of interest before one can give informed consent to its existence.[10]
In evaluating conflicts in dual representation cases, the courts have imposed a stringent test. "Even though the simultaneous representations may have nothing in common, and there is no risk that confidences to which counsel is a party in the one case have any relation to the other matter, disqualification may nevertheless be required. Indeed, in all but a few instances, the rule of disqualification in simultaneous representation cases is a per se or `automatic' one. [Citations.] [¶] The reason for such a rule is evident, even (or perhaps especially) to the nonattorney. A client who learns that his or her lawyer is also representing a litigation adversary, even with respect to a matter wholly unrelated to the one for which counsel was retained, cannot long be expected to sustain the level of confidence and trust in counsel that is one of the foundations of the professional relationship." (Flatt v. Superior Court, supra, 9 Cal.4th at pp. 284-285, 36 Cal.Rptr.2d 537, 885 P.2d 950, italics in original.) "The strict proscription against dual representation of clients with adverse interests thus derives from a concern with protecting the integrity of the attorney-client relationship rather than from concerns with the risk of specific acts of disloyalty or diminution of the quality of the attorney's representation. [Citation.]" (Forrest v. Baeza, supra, 58 Cal.App.4th at p. 74, 67 Cal. Rptr.2d 857.)
By their failure to acknowledge even the potential existence of any conflict of interest, it is clear neither appellant nor Franklin has given the informed written consent necessary for Blumenthal's continued simultaneous representation of them both. The absence of this necessary consent arguably makes their continued representation by Blumenthal a violation of the Rules of Professional Conduct. Under these circumstances, appellant's right to retain the counsel of her choice must yield to the court's obligation to protect "`the very integrity of our judicial process'" from a violation of the ethical standards of professional responsibility. (Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp., supra, 36 Cal.App.4th at p. 1838, 43 Cal.Rptr.2d 327; see also Forrest v. Baeza, supra, 58 Cal.App.4th at p. 73, 67 Cal.Rptr.2d 857.) Because the continuation of the attorney-client relationship in this situation was prima facie improper, the remedy of disqualification was appropriate. The trial court acted well within its broad discretion in ordering it. (Flatt v. Superior Court, supra, 9 Cal.4th at pp. 284-285, 36 Cal.Rptr.2d 537, 885 P.2d 950; Comden v. Superior Court (1978) 20 Cal.3d 906, 914-916, 145 Cal.Rptr. 9, 576 P.2d 971; Forrest v. Baeza, supra, 58 Cal.App.4th at p. 73, 67 Cal.Rptr.2d 857; Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp., supra, 36 Cal.App.4th at p. 1838, 43 Cal.Rptr.2d 327; In re Complex Asbestos Litigation, supra, 232 Cal.App.3d at p. 586, 283 Cal.Rptr. 732.)
V. DUE PROCESS AND FAIR HEARING
Due process requires hearing and a reasonable opportunity to be heard. Appellant *215 contends she did not have enough time to respond to the disqualification motion. The contention is without merit.
The issue of disqualification was first raised at the Friday, March 7, 1997, pretrial hearing on NHP's motion in limine to bar the testimony of the maintenance supervisors, including Franklin, who had previously executed the Settlement Agreement with NHP. After the trial court expressed its serious concern with the evident conflict of interest posed by Blumenthal's continued representation of both appellant and the maintenance supervisors he sought to introduce as trial witnesses, it requested further oral and written argument on the issue to be presented on Monday, March 10, 1997. The trial court expressly stated its intention to give appellant's counsel "full opportunity" to make his case.[11]
At the continued hearing on March 10, appellant requested more time in order to submit additional declarations in response to NHP's motion to disqualify. The court asked whether appellant sought until the following morning, which appellant confirmed. Although NHP's counsel objected, the court ruled that appellant would have another day to respond to the motion, at which point it would consider any further arguments and rule. Appellant did not object or request any additional time. At the hearing the next day, however, appellant asked for more time to submit a memorandum of points and authorities. The trial court stated it had already gone over all of appellant's additional written submissions, and was prepared to rule. It then granted the motion to disqualify.
The record shows the trial court postponed the hearing on the disqualification motion at appellant's request. Appellant's attorney knew the court wanted written arguments and would rule on the motion at the continued hearing. He had a full weekend to prepare what the court wanted. Had appellant's counsel anticipated needing additional time in which to respond to the conflict of interest issue, he could have asked for it either on March 7, or even at the continued hearing on March 10. Instead, he expressly agreed to the single additional day suggested by the court. The grant of additional time was a privilege, not a right. Even without NHP's motion to disqualify, the court would have been entitled to disqualify appellant's attorney under its inherent power to control the conduct of those involved in judicial proceedings before it. (Code Civ. Proc, § 128, subd. (a)(5); In re Complex Asbestos Litigation, supra, 232 Cal.App.3d at p. 585, 283 Cal.Rptr. 732.) There was no denial of due process.
VI ADEQUACY OF RECORD
Appellant argues the trial court was required to weigh competing interests and state its conclusions on the record before disqualifying appellant's attorney. Appellant's contention misses the mark.
In the case of Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 70 Cal.Rptr.2d 507 (Smith), on which appellant relies, the client gave informed written consent to its attorney's conflict of interest and dual representation, and expressly "waived any potential detriment" to its case caused by this conflict. (Id. at pp. 576-577, 70 Cal. Rptr.2d 507.) The Court of Appeal held that under such circumstances, the importance of protecting the client's ability to retain his or her counsel of choice required that there be an evidentiary showing of some actual detriment to the opponent or of injury to the integrity of the judicial process before the trial court could disqualify the attorney. Because no such showing was made, the court ruled the trial court had abused its discretion by recusing the attorney. (Id. at pp. 577-582, 70 Cal.Rptr.2d 507.)
The Smith case is clearly distinguishable from the instant one. As seen, the record here shows neither appellant nor Franklin *216 gave informed written consent agreeing to accept less effective representation from their attorney. Appellant has not met the threshold precondition for requiring the trial court to balance her right to retain the attorney of her choice against the resulting harm to the integrity of the judicial process prior to exercising its broad discretion to disqualify the attorney for an actual conflict of interest. (Smith, Smith & Kring v. Superior Court, supra, 60 Cal.App.4th at pp. 577-579, 70 Cal.Rptr.2d 507.)
Moreover, even if the trial court were required to make the kind of weighing process described in Smith, Smith & Kring v. Superior Court, supra, there was no error or abuse of discretion in this case. The trial court clearly stated its reasons for disqualifying appellant's attorney at length on the record, and in so doing appropriately balanced the rights and interests of the parties involved in this matter.
Thus, the trial court expressly considered and weighed the facts that: (a) the Settlement Agreement included a Confidentiality Clause under which the parties thereto agreed "to keep the fact of this Settlement and this Agreement, and each of its terms, strictly confidential"; (b) this Confidentiality Clause could be interpreted to require all parties to the Settlement Agreement to "keep their mouth shut" about the matters at issue in the Settlement Agreement, at the risk of losing the significant benefits of the Settlement Agreement; (c) appellant's attorney himself negotiated the Settlement Agreement on behalf of Franklin, who was a party to the Settlement Agreement and whom he continued to represent; (d) the attorney was now seeking to offer the testimony of Franklin and his other clients who were also parties to the Settlement Agreement about the underlying facts of the dispute addressed by the Settlement Agreement; (e) there was an inherent conflict in interest between the attorney's duty to present the strongest case on appellant's behalf, on the one hand, and his duty to Franklin and his other clients not to "blow the settlement they've worked out which could involve the return of money with interest and substantial other penalties"; (f) because of his position as one of the participants in the mediation and negotiation or the Settlement Agreement, appellant's attorney was in a position to use confidential information against respondent NHP; (g) appellant's attorney was seeking to use the subpoena power of the court to compel testimony that would otherwise remain confidential pursuant to the agreement he himself negotiated; (h) in view of his representation of appellant and his interest in obtaining their testimony in this case, appellant's attorney was not in a position to advise Franklin or the other parties to the Settlement Agreement of their rights and liabilities; and (i) permitting testimony on the facts underlying the confidential Settlement Agreement would discourage such agreements, thus violating the public policy favoring settlement.
We conclude the trial court adequately balanced the competing interests of the parties and the judicial process, and sufficiently stated its reasons on the record before disqualifying appellant's attorney.
VII. DISPOSITION
We affirm the order disqualifying appellant's attorney. Each party will bear its own costs.
PARRILLI, J., and WALKER, J., concur.
NOTES
[1] As applicable at the time of the mediation, former Evidence Code section 1152.5 provided in pertinent part: "(a) When persons agree to conduct and participate in a mediation for the purpose of compromising, settling, or resolving a dispute in whole or in part:
"(1) Except as otherwise provided in this section, evidence of anything said or of any admission made in the course of the mediation is not admissible in evidence or subject to discovery, and disclosure of this evidence shall not be compelled, in any civil action or proceeding in which, pursuant to law, testimony can be compelled to be given.
"(2) Except as otherwise provided in this section, unless the document otherwise provides, no document prepared for the purpose of, or in the course of, or pursuant to, the mediation, or copy thereof, is admissible in evidence or subject to discovery, and disclosure of such a document shall not be compelled, in any civil action or proceeding in which, pursuant to law, testimony can be compelled to be given.
"(3) When persons agree to conduct or participate in mediation for the sole purpose of compromising, settling, or resolving a dispute, in whole or in part, all communications, negotiations, or settlement discussions by and between participants or mediators in the mediation shall remain confidential.
"(4) All or part of a communication or document which may be otherwise privileged or confidential may be disclosed if all parties who conduct or otherwise participate in a mediation so consent.
"(5) A written settlement agreement, or part thereof, is admissible to show fraud, duress, or illegality if relevant to an issue in dispute.
"(6) Evidence otherwise admissible or subject to discovery outside of mediation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation." (As amended by Stats.1994, ch. 1269, § 8, p. 6583, repealed by Stats. 1997, ch. 772, § 5.) Former Evidence Code section 1152.5, subdivision (a), is continued without substantive change in Evidence Code section 1119, added by Stats.1997, ch. 772, § 3.
[2] Among other things, counsel for NHP argued: "With respect to [appellant] not being party to that [Settlement Agreement], we're not saying she was a party to that settlement. We're saying evidence of that settlementand in fact, Your Honor, our position is, in effect, that Mr. Blumenthal is a party to that settlement. He was their attorney, and he got the fruits of that settlement. He also was their agent, and we have a serious issue if anything comes up of that settlement, I mean the case law is that he could be disqualified from bringingfrom representing [appellant] in this case because he has an undue advantage using that settlement, and if Your Honor wants us to provide case law on that, we'll be glad to do that."
[3] Appellant's counsel stated: "We have to make a distinction here I think between the use of the [Settlement Agreement] which I'm not proposing to offer into evidence, and I'm not sure if defense counsel is just arguing to exclude the fact of a settlement agreement because I'm not offering that and I don't know if that's his point or not.... [¶] [T]he jury ... is entitled to look at the entire workplace and see what was going on and see how everybody was being treated, see how not just the [appellant] was being treated, but others in the same group were being treated, and the groupthe group here, Judge, is the five persons that complained for a year and a half, the [appellant] and four [maintenance] supervisors. There were five of them, and they complained about the harassment in the workplace for a year and a half, and it is the [appellant's] position in this case she was retaliated against because of her continuing complaints about the harassment in the workplace and the failure to pay her compensation according to the company's own compensation guidelines, and that both the failure to pay the compensation and the failure to take the corrective action in the workplace were racially motivated, and those were the complaints that's the way it was put by them, to the district manager and that is the reasonable basis or the reasonable cause to believe that there was discrimination in the workplace, and it was for these continuing complaints because they repeatedly they repeatedly went to the district manager about it, that a general hostility towards them existed within the company and that hostility developed into some kind of a retaliatory attitude toward each one of these people...."
[4] In colloquy on the record of the March 7, 1997, hearing, the trial court stated: "[F]rankly what very much concerns the court is ... the term `confidentiality.'
"These people entered into agreement that there would be a confidential settlement on these issues which in so many words means that in the future, they would keep their mouth shut about this matter.
". . . . .
"... The employees and the company agreed that they would settle the matter and that the matter would become confidential.
"Now, I am faced with a situation where the counsel who negotiated that confidential settlement is now because of his knowledge that settlement existed, offering the testimony of these people as to all of the activities that went into what ended up as a confidential settlement and presenting it to the court with the idea that they're all fine because we're subpoenaing them, so therefore, they have to testify under oath and therefore we don't have to worry about the fact they've all agreed to maintain confidentiality because they will answer in court.
"The court at this point, frankly, is concerned over the fact that I see a real conflict in interest here in counsel because I see a real problem, as to whether by any of these people raising their hands, they thus in so many words blow the settlement they've worked out which could involve the return of money with interest and substantial other penalties.
"What I'm saying is I don't see that counsel is appropriate to act as their counsel at this particular point because he is, in effect, asking them and I can only assume they have discussed this entire matterwell, I know they have because he was their attorney.
"We now have a situation where the attorney who negotiated the confidential settlement is able to use all of that material in a case where he and he alonewell, he and his four clients who are now to be witnesses are to be using the confidential matter of the case and presenting it to the court.
"[F]rankly, I'm concerned about the way this matter is being presented to the court, and I frankly am troubled by the fact that it appears that counsel is using what he negotiated plus the subpoena power of the court to get around what he, himself, negotiated.
"I see a conflict of interest. I see a real concern over whether these people can take the stand without appropriate legal advice other than from the attorney for this [appellant] who is encouraging them, of course, to testify, since it seems to me that the minute they raise their right hand and say more than their name, they are running the risk of violating everything that they agreed to do confidentially previously.
". . . . .
"... I've gone over the agreement, counsel. I'm concerned frankly about not only the wording of it, but I'm frankly concerned about the public policy towards settlement. I'm concerned about the spirit of such an agreement, and again, the major concern I have is that the same counsel who negotiated the confidential settlement and confidential agreement and agreement for confidentiality is now the attorney who isit would certainly seem not only raising but attempting to use the subpoena power of the court and the court's authority to compel testimony to get around this."
[5] The trial court stated: "At this point, the motion will be granted. The matter will be removed from the trial calendar to give [appellant] the opportunity to get new counsel and get up to speed on the issues in the case, but as I say, for all of the reasons stated by the court, the motion will be granted."
[6] Appellant's declaration of March 11, 1997, prepared for her by Blumenthal, made a similar statement: "To my knowledge we will not offer any evidence in the case which was confidential when it was obtained." (Italics added.) Thus, in both the declaration prepared for appellant by her attorney and in his own declaration, appellant's counsel was careful to avoid promising not to offer evidence or information which was made confidential by the terms of the Settlement Agreement after such evidence or information was originally obtained.
Moreover, contrary to Blumenthal's assertion in his March 11 declaration, the record is clear that NHP in fact did supply him with confidential information as part of the mediation process, with the understanding and on the condition this information would be used "for the sole purpose of the mediation" and therefore barred from disclosure or admission in evidence by Evidence Code section 1152.5. Blumenthal arguably had already violated this understanding earlier in the litigation by introducing evidence of this confidential information. For example, Franklin's declaration filed in opposition to the NHP motion for summary judgment, appellant's own response to NHP's interrogatories, and appellant's trial brief all contained explicit references to information obtained as part of the mediation process and which became the subject of express terms and conditions of the Settlement Agreement. The subsequent declarations of appellant, Franklin and Blumenthal himself, submitted in connection with the motions in limine and for disqualification, continued these kinds of disclosures.
[7] At oral argument, Attorney Blumenthal informed this court that in addition to Franklin, he intended to call at least one of his other NHP-employee clients to testify in appellant's case.
[8] "Where an attorney's conflict arises from successive representation of clients with potentially adverse interests, `the chief fiduciary value jeopardized is that of client confidentiality.' [Citation.]... [1¶] A different test is utilized where the attorney's conflict arises from simultaneous representations. `The primary value at stake in cases of simultaneous or dual representation is the attorney's dutyand the client's legitimate expectationof loyalty, rather than confidentiality.' [Citations.] `"[R]epresentation adverse to a present client must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each of his clients."' [Citation.]" (Forrest v. Baeza, supra, 58 Cal.App.4th at pp. 73-74, 67 Cal.Rptr.2d 857, italics in original.)
[9] By virtue of Evidence Code section 1152.5, Blumenthal was in any case probably barred from introducing any of the information he gained in connection with the mediation and negotiation of the Settlement Agreement. Even without the question of his obligation to Franklin and the other maintenance supervisors, therefore, Blumenthal already had an inherent conflict of interest based on these statutory limitations on his ability to prosecute appellant's case.
[10] As noted (footnote 7, supra), at oral argument Blumenthal indicated that he originally intended to call as a trial witness at least one of his other NHP-employee clients aside from Franklin. As he candidly conceded in response to a question at oral argument, Blumenthal never obtained or submitted any declaration from this other client. In other words, there was nothing evidencing any form of informed written consent from this other proposed client-witness.
[11] When appellant's attorney asked to speak "for a couple of minutes" at the end of the hearing on March 7, the trial court responded: "I suggest you wait until Monday, counsel, because I certainly will give you full opportunity. At this point, as I say, I want to see something in writing because I'm not sure how I am going to rule on this, except that I know that [appellant] needs to give me some more material to justify [her] position." To this, appellant's attorney replied: "All right." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262696/ | 84 Cal.Rptr.2d 65 (1999)
71 Cal.App.4th 632
Ray C. TRUDGEON, Plaintiff and Appellant,
v.
FANTASY SPRINGS CASINO et al., Defendants and Respondents.
No. E022141.
Court of Appeal, Fourth District, Division Two.
April 21, 1999.
Review Denied July 28, 1999.[*]
*66 Sergio A. Retamal, Indio, for Plaintiff and Appellant.
Masry & Vititoe and Nancy Seidler Eichler, Toluca Lake, for Defendants and Respondents.
OPINION
RICHLI, Acting P.J.
Plaintiff appeals from summary judgment for defendants in this action for personal injuries sustained at an Indian gaming casino. He principally contends the court improperly extended the Indian tribe's Sovereign immunity to a tribal corporation formed to operate the casino. We conclude the purpose and activities of the corporation were so closely related to those of the tribe that the corporation must be considered an extension of the tribe for immunity purposes. Accordingly, we affirm the lower court.
I
FACTUAL AND PROCEDURAL BACKGROUND
The Cabazon Band of Mission Indians (the Tribe) is a federally recognized Indian tribe. Defendant Cabazon Bingo, Inc. (Cabazon Bingo) is a corporation organized by the Tribe which operates Fantasy Springs Casino (Fantasy Springs), a gaming and entertainment complex located on tribal land. Plaintiff and his wife visited Fantasy Springs on or about September 17, 1995, to eat supper and play bingo. At the time, plaintiff was 66 years old.
As the couple left the casino to go to their car after the bingo game, a fight broke out among other patrons. Although plaintiff was not a participant in the fight, he was knocked *67 off his feet by the fighters, breaking his hip and shattering his elbow.
Plaintiff filed the present action in April 1996 against Fantasy Springs, Cabazon Bingo, and Does 1 through 50. Plaintiff did not sue the Tribe itself. The complaint alleged defendants knew or should have known that numerous prior assaults and crimes had occurred in the casino area, but failed to provide reasonable protection to business visitors from the criminal acts of third persons.
In January 1997, defendants moved for summary judgment on the ground the action was barred by sovereign immunity. In June 1997, the court granted defendants' motion and, in November 1997, entered judgment for defendants.
II
DISCUSSION
A. Tribal Sovereign Immunity
The federal government has "plenary and exclusive power" to deal with Indian tribes. (Bryan v. Itasca County, Minnesota (1976) 426 U.S. 373, 376, fn. 2, 96 S.Ct. 2102, 48 L.Ed.2d 710.) Under federal case law, "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106.) Thus, "[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." (Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751, 754, 118 S.Ct. 1700, 1702, 140 L.Ed.2d 981.) Any such authorization or waiver "` "cannot be implied but must be unequivocally expressed."'" (Santa Clara Pueblo, supra, at p. 58, 98 S.Ct. 1670; accord, Middletown Rancheria v. Workers' Comp. Appeals Bd. (1998) 60 Cal. App.4th 1340, 1347, 71 Cal.Rptr.2d 105.) And since it emanates from federal law, tribal immunity "is not subject to diminution by the States." (Kiowa Tribe of Okla,, supra, 523 U.S. at p. 756, 118 S.Ct. at p. 1703.)
Plaintiff does not dispute that the Tribe itself enjoys sovereign immunity. He contends, however, that the lower court improperly extended immunity to Cabazon Bingo and to the individual officers and agents of the Tribe who operated the casino. We will consider in turn the application of the Tribe's immunity to Cabazon Bingo and to the officers and agents.
B. Liability of Cabazon Bingo
Cabazon Bingo is a for-profit corporation formed by the Tribe under tribal law to conduct bingo gaming enterprises on tribal land. Plaintiff argues that, because Cabazon Bingo is a proprietary corporation formed for the purpose of obtaining an economic advantage and is not involved in the exercise of the Tribe's governmental powers, it is not covered by the Tribe's sovereign immunity.[1]
It appears to be settled that a tribe's sovereign immunity is not limited to governmental activities, but extends to commercial activities as well, and that the immunity applies to tort claims. In Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., supra, 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981, the United States Supreme Court held sovereign immunity barred a suit against a tribe on a promissory note used to finance a tribal entity's purchase of stock in an outside corporation. The court expressly declined to confine immunity to noncommercial activities, noting it had not done so in the past and concluding that any such limitation should come from Congress. (523 U.S. at pp. 755-758, 118 S.Ct. at pp. 1703-1705.) It stated, "Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation." (523 U.S. at p. 760, 118 S.Ct. at p. 1705.) Previous decisions of other courts similarly recognize immunity by tribes against actions arising from purely commercial activity. (See, e.g., Sac and Fox Nation v. Hanson (10th Cir.1995) 47 F.3d 1061, *68 1064-1065 [failure to pay employees of tribal manufacturing plants]; Maryland Casualty Co. v. Citizens National Bank of West Hollywood (5th Cir.1966) 361 F.2d 517, 521-522 [claim on tribe's construction surety bond]; Elliott v. Capital International Bank & Trust, Ltd. (E.D.Texas 1994) 870 F.Supp. 733, 735 [claim involving bank chartered and owned by tribe].)
Although Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., supra, involved a contract claim, the dissenting opinion, in suggesting immunity would be unjust to tort victims, noted that "nothing in the Court's reasoning limits the rule to lawsuits arising out of voluntary contractual relationships." (523 U.S. at p. 766, 118 S.Ct. at p. 1708 [dis. opn. of Stevens, J.].) Other courts have recognized immunity against tort claims arising from tribal commercial activities. In Long v. Chemehuevi Indian Reservation (1981) 115 Cal.App.3d 853, 171 Cal.Rptr. 733, for example, this court held that sovereign immunity barred a personal injury suit arising from a boating accident at a marina located on an Indian reservation and owned and operated by the tribe as a profit-seeking operation. (Id., at p. 858, 171 Cal.Rptr. 733; see also Morgan v. Colorado River Indian Tribe (1968) 103 Ariz. 425, 428, 443 P.2d 421, 424 [immunity barred suit for accident at marina operated as tribal enterprise outside reservation boundaries]; Seminole Tribe v. Houghtaling (Fla.App.1991) 589 So.2d 1030, 1032 [personal injury suit by customer of tribal bingo hall].)
These decisions do not directly address the issue before us, since they involved claims against the tribes themselves rather than against a separate business entity organized by the tribe as in the present case. We have not found any California authority addressing the issue whether immunity against claims arising from commercial activity should be extended to such entities. In Long v. Chemehuevi Indian Reservation, supra, 115 Cal.App.3d 853, 171 Cal.Rptr. 733, we noted the existence of "some authority that suits may be maintained against a proprietary corporation established by a sovereign government where the incident in question does not involve the exercise of governmental powers." (Id., at p. 861, 171 Cal.Rptr. 733.) However, we did not address whether immunity should apply in such a case, because the plaintiffs in Long did not attempt "to distinguish the tribe's immunity as a proprietor from its immunity as a government." (Ibid.)
Other jurisdictions which have considered whether sovereign immunity applies to tribal business entities have reached varying conclusions. A few decisions have simply asserted that "`an action against a tribal enterprise is, in essence, an action against the tribe itself.'" (Barker v. Menominee Nation Casino (E.D.Wis.1995) 897 F.Supp. 389, 393, quoting Local W-302 Int'l Woodworkers Union of Am. v. Menominee Tribal Enter. (E.D.Wis.1984) 595 F.Supp. 859, 862.) However, most courts have rejected, implicitly if not explicitly, the suggestion that courts should "confer tribal immunity on every entity established by an Indian tribe, no matter what its purposes or activities might have been." (Dixon v. Picopa Const. Co. (1989) 160 Ariz. 251, 255, fn. 7, 772 P.2d 1104, 1108.) These decisions hold that whether tribal immunity should be extended to a tribal business entity should depend on the degree to which the tribe and entity are related in terms of such factors as purpose and organizational structure. Applying that standard, courts have reached various conclusions on the immunity issue, depending on the facts. (See, e.g., Gavle v. Little Six, Inc. (1996) 555 N.W.2d 284, 294-296 [extending immunity to tribal corporation which owned gambling casino]; White Mountain Apache Indian Tribe v. Shelley (1971) 107 Ariz. 4, 6-7, 480 P.2d 654, 656-657 [extending immunity to unincorporated tribal timber company]; S. Unique, Ltd. v. Gila River Pima-Maricopa Indian Community (App.1983) 138 Ariz. 378, 381-385, 674 P.2d 1376, 1379-1383 [unincorporated tribal farming business immune but waived immunity]; Padilla v. Pueblo of Acoma (1988) 107 N.M. 174, 179-180, 754 P.2d 845, 850-851 [unincorporated tribal construction firm not immune from liability for breach of contract arising from off-reservation activities]; Dixon v. Picopa Const. Co., supra, 160 Ariz. 251, 256-259, 772 P.2d 1104, 1109-1112 [construction company incorporate ed by tribe not immune for off-reservation tort].)
*69 Although courts have looked to different factors in deciding whether to extend tribal immunity to business enterprises, the principal criteria were recently summarized by the Supreme Court of Minnesota in Gavle v. Little Six, Inc., supra, 555 N.W.2d 284 (hereafter Gavle). In Gavle a casino employee sued the tribal corporation which owned the casino for sexual harassment, pregnancy and racial discrimination, civil rights violations and other torts arising from her employment. The court identified the relevant criteria in addressing the immunity issue as follows:
"1) whether the business entity is organized for a purpose that is governmental in nature, rather than commercial;
"2) whether the tribe and the business entity are closely linked in governing structure and other characteristics; and
"3) whether federal policies intended to promote Indian tribal autonomy are furthered by the extension of immunity to the business entity." (Gavle, supra, 555 N.W.2d, at p. 294.)
Applying those criteria to the case before it, the court concluded the corporation was immune. First, the corporation had been created for the specific purpose of improving the financial and general welfare of the tribe. Second, the corporation was owned wholly by the tribe as a governmental unit, rather than being organized under the laws of the state. The board of directors had to include at least three members of the tribal business council, and a majority of the directors had to be tribal members. Directors could be removed by a tribal court proceeding commenced by the tribal members. Finally, federal policies supported Indian gaming as a means of promoting tribal welfare. (Gavle, supra, 555 N.W.2d at pp. 294-295.)
We find Gavle's three-factor analysis to be an accurate summation of the relevant case law. Moreover, the analysis is particularly relevant here since Gavle, like this case, involved a tort action against a tribal corporation which operated a gambling casino. We therefore will use that analysis in considering whether Cabazon Bingo is immune.
1. Purpose for which the Tribal Business is Organized
In the wake of Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., supra, 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981, it might be questioned whether the first criterion identified by the court in Gavle whether the purpose of the tribal business entity is governmental or commercialis still relevant. As noted ante, the court in Kiowa held that tribes are immune from contract claims "whether those contracts involve governmental or commercial activities...." (523 U.S. at p. 760, 118 S.Ct. at p. 1705.) If a tribe enjoys immunity for its commercial as well as its governmental activities, then arguably the fact it creates a business entity for a purely commercial purpose should not matter in determining the immunity of the entity.
In another sense, however, the purpose for which the entity is created may remain relevant even after Kiowa. Because Kiowa involved liability of a tribe and not a tribal business entity, the court did not consider the possible relevance of the governmental/commercial distinction in determining the liability of tribal entities. It is clear from the cases involving tribal entities that such entities have no inherent immunity of their own. Instead, they enjoy immunity only to the extent the immunity of the tribe, which does have inherent immunity, is extended to them. In view of that fact, it is possible to imagine situations in which a tribal entity may engage in activities which are so far removed from tribal interests that it no longer can legitimately be seen as an extension of the tribe itself. Such an entity arguably should not be immune, notwithstanding the fact it is organized and owned by the tribe.
Assuming, without deciding, that the purpose for which the entity is organized remains a viable consideration, we conclude it militates in favor of immunity in this case. The Tribe formed Cabazon Bingo in 1983 pursuant to Tribal Ordinance 4.1, which provides for the formation of a tribal corporation for reservation enterprises. Plaintiff notes the ordinance does not state a corporation formed pursuant to it must have the objective of promoting general tribal or economic development. However, the 1983 resolution *70 by which the Tribe formed Cabazon Bingo stated: "The Cabazon Band, in its quest for self-determination, finds it necessary to form a tribal corporation for reservation enterprises relating to bingo...." (Italics added.)
The United States Supreme Court has recognized the importance of gaming in promoting the self-determination of the Tribe. In California v. Cabazon Band of Mission Indians (1987) 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244, the court observed: "The Cabazon and Morongo Reservations contain no natural resources which can be exploited. The tribal games at present provide the sole source of revenues for the operation of the tribal governments and the provision of tribal services. They are also the major sources of employment on the reservations. Self-determination and economic development are not within reach if the Tribes cannot raise revenues and provide employment for their members." (480 U.S. at pp. 218-219, 107 S.Ct. 1083.)
Additionally, the Indian Gaming Regulatory Act (25 U.S.C. §§ 2701-2721), which governs all Indian gaming, requires that revenues from gaming be used only "(i) to fund tribal government operations or programs; [¶] (ii) to provide for the general welfare of the Indian tribe and its members; [¶] (iii) to promote tribal economic development; [¶] (iv) to donate to charitable organizations; or [¶] (v) to help fund operations of local government agencies...." (25 U.S.C. § 2710(b)(2)(B).) Here, the parties stipulated that Fantasy Springs operates pursuant to this provision of that act.
These authorities recognize "the unique role that Indian gaming serves in the economic life of here-to-fore impoverished Indian communities across this country." (Gavle, supra, 555 N.W.2d at p. 295.) That fact, along with the specific reference to the selfdetermination of the Tribe in the resolution creating Cabazon Bingo, supports the conclusion that the underlying purpose of Cabazon Bingo is governmental in nature notwithstanding its for-profit status. Cases which have not extended immunity to tribal enterprises typically have involved enterprises formed "solely for business purposes and without any declared objective of promoting the [tribe's] general tribal or economic development...." (Dixon v. Picopa Const. Co., supra, 160 Ariz. 251, 257, 772 P.2d 1104.) That is not the situation here. We therefore conclude the first Gavle criterion supports immunity.
2. Degree of Tribal Control Over the Enterprise
The second factor articulated in Gavle whether the tribe and the business entity are closely linked in governing structure and other characteristicsessentially examines the extent to which the tribe controls the composition and operations of the business entity. In Gavle, the court in finding immunity noted the facts that the casino corporation was organized under tribal law; the corporation was wholly owned by the tribe; the governing board included at least three members of the tribal business council; a majority of the board had to be tribal members; and board members could be removed by a vote of the tribe. (555 N.W.2d 284, 295; see also White Mountain Apache Indian Tribe v. Shelley, supra, 107 Ariz. 4, 6, 480 P.2d 654 [tribal council selected majority of board members of tribal timber company].) The facts are analogous here.
In connection with the summary judgment motion, the parties stipulated to these facts: The shareholders of Cabazon Bingo consist of members of the Cabazon General Council, which consists of all tribal members over 18 years old; the General Council elects six tribal members to the Cabazon Business Committee every four years; and the Business Committee functions as the board of directors of Cabazon Bingo and appoints its officers. Further, Cabazon Bingo's articles of incorporation provide that directors may be removed by affirmative vote of a majority of the outstanding shareholders, i.e., the members of the Tribe. It is thus apparent that the Tribe, through its members and their elected officials, directly oversees the operations of Cabazon Bingo. (Compare Dixon v. Picopa Const. Co., supra, 160 Ariz. 251, 256, 772 P.2d 1104 [no immunity where tribal corporation "ha[d] a board of directors, separate from the tribal government, which *71 exercise[d] full managerial control over the corporation"].)
Plaintiff notes that the articles of incorporation of Cabazon Bingo do not require that its directors or officers be tribal members. However, while no such requirement is stated in the articles, it appears as a practical matter that the directors are members of the Tribe, since, as noted ante, the Business Committeeto which six tribal members are electedfunctions as the board of directors. And while there is no indication that the officers of Cabazon Bingo must be tribal members, "... control of a corporation need not mean control of business minutiae; the tribe can be enmeshed in the direction and control of the business without being involved in the actual management." (Gavle, supra, 555 N.W.2d 284, 295.) We therefore conclude the second Gavle criterion also supports immunity.
23. Furtherance of Federal Policies Intended to Promote Tribal Autonomy
The final factor identified in Gavle whether federal policies intended to promote Indian tribal autonomy would be furthered by the extension of immunityalso militates in favor of immunity. As the court in Gavle noted, the Indian Gaming Regulatory Act recognizes gaming "as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments...." (25 U.S.C. § 2702(1).) Similarly, as previously discussed, the United States Supreme Court has acknowledged the significance of gaming in promoting the self-determination of the Tribe. (California v. Cabazon Band of Mission Indians, supra, 480 U.S. 202, 218-219, 107 S.Ct. 1083, 94 L.Ed.2d 244.)
For these reasons, we conclude the lower court properly extended immunity to Cabazon Bingo. We briefly discuss the authorities on which plaintiff bases his contrary view.
First, plaintiff misrepresents the facts and holding of Inland Casino Corp. v. Superior Court (1992) 8 Cal.App.4th 770, 10 Cal. Rptr.2d 497. Contrary to plaintiffs assertion, the defendant company in Inland was not an "Indian corporation." In fact, as the court pointed out, the company was an outside, "non-Indian party" retained by the tribe to operate the tribal casino. (Id. at pp. 774, fn. 2, 776, 10 Cal.Rptr.2d 497.) Thus, Inland involved no issue of tribal immunity and has no relevance here.
Parker Drilling Co. v. Metlakatla Indian Community (D.Alaska 1978) 451 F.Supp. 1127 also fails to support plaintiffs position. The court in Parker merely ruled that if the defendant tribe operated an airport in its capacity as an "Indian corporation" organized pursuant to section 17 of the Indian Reorganization Act (25 U.S.C. § 477) rather than in its capacity as a "governmental organization" under section 16 of that Act (25 U.S.C. § 476)a question the court could not decide for lack of an adequate record the tribe could be sued for an accident occurring at the airport. (451 F.Supp. at p. 1141.) Here, the parties stipulated that the Tribe is not subject to the Indian Reorganization Act, including sections 16 and 17.[2] Additionally, as discussed ante, after Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., supra, 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981, the governmental/commercial distinction may be of questionable vitality in any event.
Finally, plaintiff notes that 28 United States Code section 1360(a) grants certain states, including California, jurisdiction over civil causes of action arising in Indian country to which Indians are parties. It is settled, however, that section 1360 confers jurisdiction only over individual Indians, not over Indian tribes themselves. (Bryan v. Itasca County, Minnesota, supra, 426 U.S. 373, 389, 96 S.Ct. 2102, 48 L.Ed.2d 710; Middletown Rancheria v. Workers' Comp. Appeals Bd., supra, 60 Cal.App.4th 1340, 1351, 71 Cal.Rptr.2d 105.) Accordingly, jurisdiction under section 1360 "does not extend to tribes or tribal entities." (Gavle, supra, 555 N.W.2d 284, 289, italics added.) More fundamentally, even assuming section 1360 *72 conferred jurisdiction over Cabazon Bingo, that fact would not overcome the defense of sovereign immunity at issue in this case. "The question of the right to sue (immunity) is distinct from the question of jurisdiction." (Vetter, Doing Business with Indians and the Three "S"es: Secretarial Approval, Sovereign Immunity, and Subject Matter Jurisdiction, supra, 36 Ariz. L.R. 169, 186.)
C. Liability of Tribal Officers and Agents
The remaining issue is whether the court erred in ruling the Tribe's immunity extended to individual officers and agents of the Tribe who operated the casino. The complaint named as defendants 50 "Does," and alleged generally that each fictitious defendant was negligently responsible in some manner for plaintiff's injuries. Although it appears no individual defendant was before the court when it ruled[3] plaintiff nonetheless requested a ruling on whether tribal immunity applied to officers and agents, and the court stated immunity would apply to individuals "working within the scope of their employment."
It is settled that "... tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority." (Hardin v. White Mountain Apache Tribe (9th Cir.1985) 779 F.2d 476, 479.) This immunity applies to officials sued in their individual capacities. (Id., at pp. 478-479; Romanella v. Hayward (D.Conn.1996) 933 F.Supp. 163, 167-168.) Further, at least in our federal circuit, an official need not be a member of the tribe in order to share in its sovereign immunity. (Baugus v. Branson (E.D.Cal. 1995) 890 F.Supp. 908, 911.)[4] And immunity has been extended to officers of a tribal business entity as well as to officers of the tribe itself. (White Mountain Apache Indian Tribe v. Shelley, supra, 107 Ariz. 4, 8, 480 P.2d 654.)
As plaintiff notes, an agent of an immune sovereign may be held liable for an act which exceeds his or her authority. (Boisclair v. Superior Court (1990) 51 Cal.3d 1140, 1157, 276 Cal.Rptr. 62, 801 P.2d 305.) But the commission of a tort is not per se an act in excess of authority. "`[I]f the actions of an officer do not conflict with the terms of his valid statutory authority, then they are actions of the sovereign, whether or not they are tortious under general law....'" (Ibid.) Where the plaintiff alleges no viable claim that tribal officials acted outside their authority, immunity applies. (Imperial Granite Co. v. Pala Band of Mission Indians (9th Cir.1991) 940 F.2d 1269, 1271.)
Here, the complaint alleged that at all times "each of the Defendants was the agent and employee of each of the remaining Defendants and in doing the things hereinafter alleged, was acting within the scope of such agency and employment." (Italics added.) There was no allegation from which it could be inferred that any individual exceeded his or her authority as an agent of the Tribe. The lower court was justified in concluding plaintiff had not asserted facts sufficient to overcome immunity against any potential individual defendant.
Further, it is evident that plaintiff could not make such an allegation based on the facts set forth in the complaint. Plaintiffs theory of negligence was that the defendants should have provided adequate security to protect patrons in the casino area. In an analogous case, it was recently held that individual tribal members were immune from a negligence suit brought by an employee who slipped and fell in a casino parking lot. (Romanella v. Hayward, supra, 933 F.Supp. 163.) The court reasoned that, because the tribal members were responsible for maintaining the parking lot, the negligence claims against them "directly relate[d] to their performance of their official duties." (Id., at p. 168.)
*73 Here, similarly, control and maintenance of the casino area manifestly were related to the official duties of the individuals entrusted with the operation of the casino. Any failure to provide adequate security therefore was an act within the official authority of those individuals and, as such, was subject to immunity.
III
CONCLUSION
For these reasons, we agree with the lower court that the present suit is barred by sovereign immunity. We acknowledge, as did the United States Supreme Court in Kiowa Tribe of Okla, v. Manufacturing Technologies, Inc., supra, 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981, that, in the context of tribal business enterprises, "... immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims." (Id., at p. 758, 118 S.Ct. at p. 1704.) At the same time, we note our disposition does not leave plaintiff completely without recourse. The record shows the Tribe has established a reservation court which has civil jurisdiction over all disputes within reservation boundaries, and defendants assert that court has sole jurisdiction over this matter. We presume, in view of the Tribe's obvious incentive to maintain good relations with its business clientele, that the tribal court can and will fairly adjudicate the matter.
IV
DISPOSITION
The judgment is affirmed. Costs to respondents.
WARD, J., and GAUT, J., concur.
NOTES
[*] Mosk, J., and Brown, J., dissented.
[1] Plaintiff does not separately address the immunity of Fantasy Springs, which he also named as a defendant, but our reasoning and conclusion with respect to Cabazon Bingo's immunity apply equally to Fantasy Springs to the extent it may be separately suable.
[2] A tribe need not be organized under the Indian Reorganization Act in order to engage in economic activities. (Vetter, Doing Business with Indians and the Three "S"es: Secretarial Approval, Sovereign Immunity, and Subject Matter Jurisdiction (1994) 36 Ariz. L.R. 169, 175, fn. 36.)
[3] Before the summary judgment motion was heard, plaintiff filed an amendment to the complaint to substitute Mark Nichols, the Chief Executive Officer of the Tribe and Fantasy Springs, in place of Doe 1. However, it appears the amendment was not before the court when it granted summary judgment.
[4] The record does not reflect whether Mark Nichols is a member of the Tribe. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330006/ | 301 S.E.2d 71 (1983)
308 N.C. 169
STATE of North Carolina
v.
Dennis Jessie CHATMAN.
No. 429A82.
Supreme Court of North Carolina.
April 5, 1983.
*74 Rufus L. Edmisten, Atty. Gen. by Barry S. McNeill, Asst. Atty. Gen., Raleigh, for the State.
Nancy S. Mundorf, Kernersville, for defendant-appellant.
MEYER, Justice.
Defendant first contends that he was denied due process and equal protection due to the trial court's denial of his pre-trial request for funds for a psychiatric examination to determine his mental condition at the time of the offense. His motion was made pursuant to G.S. § 7A-54 and stated that:
1. The Defendant has been indicted on charges of Rape, Burglary, and First Degree Sexual Offenses, each of which are punishable by maximum Life Sentence.
2. That there are six separate victims of the alleged offenses at six separate times, that the proof which is expected to be offered by the State of each offense is separate and distinct.
3. That it is necessary for the fair determination of the Defendant's guilt or innocence of each offense to sever the offenses and try each one separately on its own merits.
4. That due to the nature of the charges and the Defendant's mental state as observed by his Attorney, his Attorney respectfully request[s] the court for the approval of a fee for the Defendant to be examined by a Psychiatrist to determine the question of insanity at the time of the alleged offenses. That said Defendant does not have the resources available to pay a private Psychiatrist to undergo evaluation, and counsel feels that such is necessary to protect any possible defenses at trial.
The trial court, in denying the motion, concluded that "the Defendant [had] not made a showing of necessity for appointment with a Psychiatrist to determine the question of sanity at the time; in that Defendant has had no previous indication of psychiatric disorders."
It appears from the record that defendant had previously undergone an examination for purposes of determining his capacity to proceed to trial. See G.S. § 15A-1002. The screening evaluation revealed that defendant's capacity to proceed was not an issue and "further evaluation for capacity to proceed to trial [did] not appear to be needed." Defendant argues that further psychiatric evaluation was necessary to determine his sanity at the time of the offense.
On this issue we find the case of State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980), to be dispositive. In Easterling a psychiatrist's report indicated that the defendant was capable of proceeding to trial and that he was legally sane at the time of the alleged crimes. While it is true in the case sub judice that there was no determination made of Chatman's sanity at the time of the offense, we do not view this distinction as significant. In Easterling this Court relied on the following:
We are not persuaded by defendant's contention that further psychiatric inquiry could have revealed expert information `as to the possibility of insanity as a defense.' There was simply no evidence presented in the motion or at the hearing which tended to support even a suspicion, much less a reasonable likelihood, that defendant could establish a meritorious defense of insanity. Under these circumstances, the court's refusal to require the *75 State to pay for an additional psychiatric evaluation was not error. See, e.g., State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975), death sentence vacated, 428 U.S. 904 [96 S. Ct. 3211, 49 L. Ed. 2d 1211] (1976).
Id. at 600, 268 S.E.2d at 804.
Likewise, we see nothing in the record before us which would support a reasonable likelihood that defendant could establish a meritorious defense of insanity at his trial. Even if we accept defendant's argument that the request for funds for additional psychiatric evaluation was made because he had been indicted on charges of rape, burglary, and first degree sex offense, and there were six separate incidents involved, we find nothing to differentiate this particular defendant from any other defendant charged with multiple offenses. We can only repeat that "it is practically and financially impossible for the state to give indigents charged with crime every jot of advantage enjoyed by the more financially privileged," and the assistance contemplated by G.S. § 7A-454 will be provided "only upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial." State v. Gray, 292 N.C. 270, 277-78, 233 S.E.2d 905, 911 (1977). We find no error.
Defendant next contends that his constitutional right to due process was violated by the trial court's permitting the introduction of evidence obtained from suggestive photographic and line-up procedures. As the basis for this assignment of error, defendant first points to the fact that Ms. Ross was told prior to being shown the photographs that the police had a suspect. He concedes that this alone would not make the procedure unduly suggestive. See State v. Dunlap, 298 N.C. 725, 259 S.E.2d 893 (1979). Added to this was the fact that Ms. Ross had only a few moments to view the intruder, and she was not able to positively identify the defendant from the photographs, narrowing her choice to two, one of which was the defendant. The individual in the second photograph was not present in the line-up and no other individual in the line-up had the same hairline as the defendant.
The law is well-settled that "[i]dentification evidence must be excluded as violating a defendant's rights to due process where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. White, 307 N.C. 42, 296 S.E.2d 267 (1982); State v. Leggett, 305 N.C. 213, 287 S.E.2d 832 (1982); State v. Thompson, 303 N.C. 169, 277 S.E.2d 431 (1981)." State v. Hammond, 307 N.C. 662, 300 S.E.2d 361 (1983).
On the record before us we find sufficient evidence to support the trial court's findings that "[t]he witness based her in-court identification of the defendant upon her having seen him in her bedroom on October 7, 1981; and that identification was not influenced by any photographic identification procedure or by any pretrial identification procedure." Furthermore, defendant did not except to any finding of fact and therefore it is presumed that they are supported by the evidence and thus conclusive on appeal. State v. Dobbins, 306 N.C. 342, 293 S.E.2d 162 (1982). The findings of fact fully support the trial court's conclusion that Ms. Ross's in-court identification of the defendant was of independent origin based solely on what she saw at the time of the crime and "[t]he totality of the circumstances reveal no pretrial identification procedures so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend the fundamental standards of decency, fairness, and justice...." We find no error in the introduction of the identification evidence.
Defendant assigns as error the admission of statements obtained as the result of custodial interrogation. A voir dire hearing was conducted prior to the admission of these statements. The trial judge *76 made detailed findings which included, inter alia, the following: prior to questioning, defendant was advised of his rights and signed his name to the rights waiver form; defendant was fully aware of his rights and was familiar with police procedures; defendant was not pressured, coerced, or in any way threatened or influenced; and defendant at no time indicated that he wished to contact an attorney. The findings are fully supported by the evidence, were not excepted to, and support the trial court's conclusion that defendant's statements were "purposely, freely, knowingly, expressly, intelligently, and voluntarily" given. State v. Easterling, 300 N.C. 594, 268 S.E.2d 800; State v. Herndon, 292 N.C. 424, 233 S.E.2d 557 (1977).
Defendant contends that he was denied a fair trial by the admission of testimony suggesting that he had committed other similar offenses. He points to four instances in which reference was made to the fact that he had committed other sex offenses. The first two references occurred during voir dire, out of the presence of the jury. Therefore, defendant can show no prejudice within the meaning of G.S. § 15A-1443(a).
During defendant's cross-examination of Officer Branscomb in the presence of the jury, the following exchange took place:
Q. What did you tell him?
A. I told him that we had identified his fingerprints in five rape cases at different locations.
MS. MUNDORF: I object and move to strike to five, Your Honor.
MR. TISDALE: Your Honor, she asked the question ....
The objection was overruled.
As we stated in State v. Waddell, 289 N.C. 19, 25, 220 S.E.2d 293, 298 (1975):
Defendant cannot invalidate a trial by introducing evidence or by eliciting evidence on cross-examination which he might have rightfully excluded if the same evidence had been offered by the State. State v. Gaskill, 256 N.C. 652, 124 S.E.2d 873; State v. Williams, 255 N.C. 82, 120 S.E.2d 442; State v. Case, 253 N.C. 130, 116 S.E.2d 429. Neither is invited error ground for a new trial. State v. Payne, 280 N.C. 170, 185 S.E.2d 101; Overton v. Overton, 260 N.C. 139, 132 S.E.2d 349.
We find that the error, if any, was invited and one about which the defendant may not complain on appeal.
The final incident took place during Officer Branscomb's testimony concerning his interrogation of the defendant. The witness was asked whether defendant was reluctant to answer questions. The officer responded "Yes. At one point I asked him how many rapes he thought he had committed, and he said he just" The court sustained defense counsel's objection. There was no motion to strike.
We agree that in this case evidence that defendant committed other distinct, independent offenses of a similar nature to those for which he was charged was properly excludable. See State v. McClain, 282 N.C. 357, 193 S.E.2d 108 (1972). While the question put to Officer Branscomb was proper, his answer including the objectionable material was unresponsive. Under these circumstances the following law applies:
`In case of a specific question, objection should be made as soon as the question is asked and before the witness has time to answer. Sometimes, however, inadmissibility is not indicated by the question, but becomes apparent by some feature of the answer. In such cases the objection should be made as soon as the inadmissibility becomes known, and should be in the form of a motion to strike out the answer or the objectionable part of it.' Stansbury, Evidence, § 27, p. 51, citing Gibson v. Whitton, 239 N.C. 11, 79 S.E.2d 196. McIntosh, 2d Ed., N.C. Practice and Procedure, § 1533, states the rule: `Where a party has failed to object to evidence at the proper time, he may still ask the court to strike it out.'
State v. Battle, 267 N.C. 513, 520, 148 S.E.2d 599, 604 (1966).
*77 [A]n objection on the ground that the witness's answer is unresponsive to the question is properly available only to the party propounding the question. `The mere fact that the answer is unresponsive is not an objection available to the opponent.' C. McCormick, Handbook of the Law of Evidence § 52 at 113, n. 26 (1954), citing cases. The opponent's appropriate remedy, when it becomes apparent that some feature of the answer is objectionable, is by way of a motion to strike the answer or its objectionable parts. 1 Stansbury's N.C. Evidence, Witnesses § 27 (Brandis rev. 1973).
State v. Beam, 45 N.C.App. 82, 84, 262 S.E.2d 350, 351-52 (1980).
Failure to move to strike the unresponsive part of an answer, even though the answer is objected to, results in a waiver of the objection. State v. Battle, 267 N.C. 513, 148 S.E.2d 599; State v. Beam, 45 N.C.App. 82, 262 S.E.2d 350; accord State v. Norman, 19 N.C.App. 299, 198 S.E.2d 480, cert. denied, 284 N.C. 257, 200 S.E.2d 657 (1973).
Defendant's failure to move to strike the unresponsive portion of the witness's answer therefore waived the objection. Furthermore, given the overwhelming evidence against this defendant, including the in-court identification, defendant's own admissions, fingerprint evidence, and the results of the blood-type analysis, any error in the admission of this one statement was harmless. G.S. § 15A-1443(a); State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981).
Finally defendant contends that the trial court abused its discretion in imposing the maximum sentence of fifty years for first degree burglary, the presumptive sentence for which is fifteen years.
Pursuant to G.S. § 15A-1340.4(a)(1), Judge Albright found the following factors in aggravation:
9. The defendant was armed with or used a deadly weapon at the time of the crime.
15. The defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days' confinement.
16. Additional written findings of factors in aggravation.
a. The defendant has served a prior prison sentence.
b. The offense was planned.
c. The defendant is a dangerous sex offender whose history makes it necessary to segregate him for an extended term from the public for its safety and protection.
d. The sentence pronounced by the court is necessary to deter others from committing the same crime.
e. A lesser sentence than that pronounced by the court will unduly depreciate the seriousness of the defendants crime.
In mitigation, Judge Albright found only one factor: Prior to arrest or at an early stage of the criminal process, the defendant voluntarily acknowledged wrong-doing in connection with the offense to a law enforcement officer.
Defendant first contends that because the knife was used in the rape, but was not actually used in the burglary, finding No. 9 was erroneous. We are not persuaded. Defendant was armed with a deadly weapon, the knife, at the time he committed the burglary offense. Judge Albright properly found as a factor in aggravation that defendant was armed at the time of the crime.
Defendant also contends that the evidence was insufficient to support finding No. 16(b) that the offense was planned. There was evidence that the defendant would drive around in his car at night and break into homes for the purpose of raping women. We reject defendant's position that in order to find that the offense was planned it was necessary to show that defendant "methodically surveyed ... houses or carefully chose a particular night before entering." The argument is specious. We find plenary evidence to support finding No. 16(b).
*78 With respect to the finding that "defendant is a dangerous sex offender," we find that this factor is reasonably related to the overall purposes of sentencing, one of which is to protect the public by restraining offenders. See G.S. § 15A-1340.4(a) and - 1340.3. A defendant's dangerousness to others may be legitimately considered as an aggravating factor. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983). Furthermore, this defendant's propensity to commit sex offenses was inextricably connected to a pattern of breaking into the homes of his victims during the nighttime, thereby injecting into each sex offense an added element of dangerousness. On this aggravating factor we find no error.
Judge Albright erred in finding as factors in aggravation that the sentence was necessary to deter others, and that a lesser sentence would unduly depreciate the seriousness of the crime. These two factors fall within the exclusive realm of the legislature and were presumably considered in determining the presumptive sentence for this offense. While both factors serve as legitimate purposes for imposing an active sentence, neither may form the basis for increasing or decreasing a presumptive term because neither relates to the character or conduct of the offender. See State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689.
Because "it must be assumed that every factor in aggravation measured against every factor in mitigation, with concomitant weight attached to each, contributes to the severity of the sentencethe quantitative variation from the norm of the presumptive term," we held in Ahearn that "in every case in which it is found that the judge erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing." Id. at ___, 300 S.E.2d at 701. Therefore defendant is entitled to a new sentencing hearing on his burglary conviction for error found in two aggravating factors.
Case number 81CRS48691Count I (first degree burglary) is REMANDED to the Superior Court, Forsyth County, FOR RESENTENCING.
Case number 81CRS48691Count II (first degree rape)NO ERROR.
Case number 81CRS49222(first degree sex offense)NO ERROR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330031/ | 250 Ga. 829 (1983)
301 S.E.2d 874
KEMP
v.
SPRADLIN.
39373.
Supreme Court of Georgia.
Decided April 7, 1983.
*831 Michael J. Bowers, Attorney General, Susan V. Boleyn, Assistant Attorney General, W. Terrell Wingfield, Jr., Special Assistant Attorney General, for appellant.
Ricky Spradlin, pro se.
CLARKE, Justice.
This is a habeas corpus case in which the writ was granted by the trial court. We affirm.
Spradlin was given probation after pleading guilty to burglary in *830 1980. He had no legal counsel. Again in 1981, without legal counsel, he pled guilty to two counts of violating the Georgia Controlled Substances Act. His probation in the burglary case was revoked during a hearing at which he was also unrepresented.
The issue is whether the accumulation of proceedings, each of which could result in deprivation of liberty without legal assistance, is sufficient grounds to support the issuance of a writ of habeas corpus. We hold that under the facts in this case the writ was properly issued.
When Spradlin appeared in court on the controlled substances charges he asked for appointed counsel, pointing out that because of severe burn injuries he was disabled and his only income was social security. The trial court denied the request because he had been free on bond and reasoned that a person who is financially able to make bond is financially able to employ legal counsel. The court then proceeded to take a guilty plea and conduct a revocation hearing. Spradlin was sentenced to two concurrent four-year terms and his probation was revoked.
There is no appeal from the habeas court's invalidation of the controlled substances sentences. However, appellant contends the trial court acted within its authority in revoking the probation and that the habeas court erred in overturning the revocation of the probated burglary sentence.
We recognize that the revocation of probation can rest upon evidence less than is required for conviction. We also recognize that a defendant is not ordinarily entitled to appointed counsel for a probation revocation hearing. The issue here, however, is broader than either of these rules. We are faced with an accumulation of three liberty threatening proceedings in which there was no legal representation. This is a circumstance which brings this case under the guidelines established by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778 (93 SC 1756, 36 LE2d 656) (1973). There the Court dealt with whether it is necessary to provide legal counsel at hearings on the revocation of probation or parole. It held that the decision must be made on a case by case basis. In his special concurring opinion in Foskey v. Sapp, 237 Ga. 788, 792 (229 SE2d 635) (1976), Chief Justice Hill discussed Scarpelli and observed, "Where fundamental fairness requires, counsel must be provided." We hold that the accumulation of three liberty threatening proceedings without the benefit of legal representation is a circumstance under which fundamental fairness requires that legal counsel be provided.
Judgment affirmed. All the Justices concur, except Weltner, J., who concurs specially.
WELTNER, Justice, concurring specially.
The sound development of the law, in any field, requires that "case by case" rules and "balancing" tests be limited to those recurring problems to which no plain and simple standard might be applied. Otherwise, we lift aloft a measurement no more precise than the fabled chancellor's foot.
In my opinion, to follow Gagnon v. Scarpelli, 411 U.S. 778 (93 SC 1756, 36 LE2d 656) (1973), is to fall into the same habit which has attracted to the United States Supreme Court so much criticism that is, a perceived inability on occasion to tell us what the law is, and what it is not.
This case provides an opportunity to interpret our own Constitution in reference to the liberty of free men: "No person shall be deprived of life, liberty, or property, except by due process of law." Constitution of Georgia of 1976, Art. I, Sec. I, Par. I (Code Ann. § 2-101).
To the man before the bar, it can make little difference whether his liberty is lost by conviction or by revocation. Conceptual distinctions between "right" and "privilege" notwithstanding, he is locked up either way!
I therefore suggest that our own constitutional protections should be extended to any criminal proceeding wherein liberty shall be at stake. This is not contrary to now Chief Justice Hill's special concurrence in Foskey v. Sapp, 237 Ga. 788, 792 (229 SE2d 635) (1976), for to cast a man in prison without benefit of counsel, by whatever means, is itself "fundamentally unfair." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330030/ | 301 S.E.2d 523 (1983)
AYDEN TRACTORS, INC.
v.
Beverly GASKINS and Artis Gaskins
v.
MASSEY-FERGUSON, INC.
No. 823SC397.
Court of Appeals of North Carolina.
April 19, 1983.
*524 Everett & Cheatham by Edward J. Harper, II, Greenville, for plaintiffs-appellants.
Harrell & Titus by Richard C. Titus, Raleigh, for third-party defendant-appellant.
Barker, Kafer & Mills by James C. Mills, New Bern, for defendants-appellees.
BECTON, Judge.
I
Procedural and Factual History
The lengthy and involved factual and procedural background of this case follows. On 1 October 1975 defendants, the Gaskins brothers, entered into a contract for and purchased a Massey-Ferguson model 750 combine, a Cornhead and a grain table, from the plaintiff, Ayden Tractors, Inc., for $43,500. Defendants tendered, at that time, a Gleaner with trade-in value of $7,500. They made a $7,625 down payment, $3,825 of which was cash, the balance evidenced by a promissory note in the principal amount of $3,800. That note was due on 1 November 1975; plaintiffs charged no interest on the $3,800. The reverse of the purchase contract contained a warranty agreement covering the purchased equipment, which provided:
All NEW Massey-Ferguson agricultural machines and equipment (hereinafter called products) are sold by the dealer upon the following warranty and agreement given by the dealer, WHICH IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR PURPOSE, and any other obligation on the part of the dealer or Massey-Ferguson. The dealer neither assumes nor authorizes any person to assume for it any other liability in connection with the sale of such products. The obligation of the dealer or Massey-Ferguson, under this warranty, is limited to replacing parts, at no charge to the Buyer, which prove defective with normal *525 and proper use of the product for the purpose intended.
This warranty applies only to a new, unused Massey-Ferguson product, there being no warranty of any nature in respect to used products or new products that have been modified or altered, repaired, neglected, or used in any way which, in the opinion of the dealer or Massey-Ferguson, adversely affects its performance.
All such new, unused Massey-Ferguson products are warranted to be free from defects in material or workmanship, which may cause failure, for a period of twelve months from the date of delivery to Buyer or 1500 hours of use, whichever occurs first.
It is the responsibility of the Buyer, at his expense, to transport the machine or equipment to the dealer's service shop or, alternatively, to reimburse the dealer for any travel or transportation expense involved in fulfilling this warranty. When requested by the dealer, part or parts shall be returned for inspection, transportation prepaid, to a place designated by the dealer. IN NO EVENT SHALL THE BUYER BE ENTITLED TO RECOVER FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF CROPS, INCONVENIENCE, RENTAL OF REPLACEMENT EQUIPMENT, LOSS OF PROFITS, OR OTHER COMMERCIAL LOSS.
Defendants took delivery of the combine and accessories on 1 October 1975. The following day they began to experience problems with the combine. Evidence tended to show that the combine's diesel engine would overheat and then be automatically shut-down by a safety valve mechanism. Defendants testified that it ran about thirty minutes and stopped. Plaintiff was notified, and a serviceman was promptly dispatched. The safety valve was removed. For the remainder of the 1975 harvest season the machine worked properly about one-third (1/3) of the time it was in use. Defendants admit that plaintiff's representatives responded promptly on each of the numerous occasions service calls were made, and that parts of the combine were taken into the shop, repaired and returned. This work was all "under warranty."
In addition to the heating problem, defendants noticed, during the 1976 harvest season, that the combine's engine had begun to "use oil." Defendant Artis Gaskins testified that plaintiff's serviceman removed the engine, kept it for about a week, and re-installed it into the combine. Further: "After they [Plaintiff] put the motor in the machine, we tried to use it some more. It would still run hot. Still do the same thing when we used it an hour or sometimes two." Toward the end of the 1976 season, the engine overheated, an hydraulic line burst, and the engine caught fire. Plaintiff was called, and its representative came to defendants' farm and removed the combine to Ayden, North Carolina. Plaintiff kept the combine from late fall of 1976 to sometime in August of 1977.
Apparently, because of the numerous problems defendants experienced with the machine, plaintiff asked the manufacturer and third party defendant, Massey-Ferguson, Inc., to extend the warranty covering defendants' machine. This modification was made in June of 1977. Defendants contend that a refinancing agreement was also executed in June of 1977, extending the repayment period on the debt owed for the combine. Plaintiff agrees that the warranty was extended in June 1977 but argues that the renewal contract was not executed until 22 December 1977. The parties are in accord on the fact that the renewal contained the following pertinent provisions:
In further consideration of such renewal, refinancing, restatement and extension of time of payment, I hereby expressly waive all claims arising out of the purchase of said property and all defenses, statutory or otherwise, to the payment hereof. I understand and agree that the execution and delivery of this agreement shall not rescind or revoke the refinanced Contract(s) or affect in any way the rights and obligations thereunder except as expressly amended or revised herein. [Emphasis added.]
*526 Defendants began the 1977 harvest season using the combine. Despite extensive repairs made by plaintiff during the spring of 1977, the combine continued to overheat. Also, defendants testified that the batteries were not sufficiently charged by the machine's engine. Beverly Gaskins testified that plaintiff's representatives admitted to him and his brother that plaintiff could not correct the problem.
Subsequently, either in November 1977 or January 1978, defendants informed plaintiff that they were returning the combine, and asked plaintiff to refund that portion of the purchase price already paid. Plaintiff took possession of the combine in early 1978. Plaintiff sued, alleging that defendants owed $1,600 on the promissory note evidencing the partial down payment and $3,072.23 on an open account, and asked for judgment in those amounts against defendants with interest on same. Defendants answered, denying the principal allegations of the complaint, and counterclaimed, alleging that the problems with the combine and plaintiff's inability to correct them constituted a breach of warranty, and that the "down time" caused them financial loss. Defendants sought refund of the purchase price, down payment, and interest paid to date, lost profits, consequential damages, attorneys' fees and costs. Defendants filed, at the same time, a Third Party Complaint against Massey-Ferguson, Inc. and Massey-Ferguson Credit Corporation, as manufacturer and lien holder, respectively. Defendants prayed for the same relief against the third party defendants as they did against plaintiff, and in addition, asked that the original sales contract and financing agreement dated 1 October 1975 be declared null and void.
Plaintiff moved to dismiss the defendants' counterclaim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, replied to the counterclaim in the alternative, and filed a cross-claim against the third-party defendants for indemnification. Similarly, the third-party defendants moved to dismiss the Third Party Complaint pursuant to Rule 12(b)(6) and filed, in the alternative, defenses to that Complaint.
Plaintiff moved for summary judgment on its claims for relief and against defendants on their counterclaim. A hearing in Pitt County Superior Court was held on plaintiff's motion together with third-party defendant's summary judgment motion. The trial court entered an order on 25 September 1979, granting plaintiff's first cause of action ($1,600, interest and costs), denying defendants' counterclaim, and continuing plaintiff's second cause of action ($3,072.23 on the open account). The court treated third-party defendant Massey-Ferguson Credit Corporation's Rule 12(b)(6) motion to dismiss as a motion for summary judgment and dismissed defendants' claim against it. Defendants appealed to this Court.
Upon filing and service of briefs, plaintiff and third-party defendants moved that the matter be remanded to Pitt County Superior Court because the issue of revocation of acceptance was not raised in the trial court but rather was raised for the first time on appeal. The Credit Corporation argued also that defendants failed to argue the impropriety of the dismissal in its favor and thus had abandoned its appeal as to the judgment for the Credit Corporation. This Court reversed the trial court's order with respect to plaintiff and third-party defendant Massey-Ferguson, Inc.; it affirmed the dismissal of the action against the Massey-Ferguson Credit Corporation and remanded the matter to the Superior Court of Pitt County.
A trial was held before the Honorable Robert Rouse, sitting without a jury, in Superior Court, Pitt County. After hearing the evidence, the trial court found, inter alia, that due to the continuing pattern of problems with the combine, the defendants justifiably revoked their acceptance of the combine within a reasonable time after the defects were not cured and gave notice of revocation in apt time. The trial court found further that the Gaskins reasonably expected that the defects in the combine had been or would be cured. Upon those and the other findings, the trial court concluded *527 that plaintiff was not entitled to recover the balance of the purchase price but was entitled to recover the arrearage on the pre-existing open account. It further concluded and ordered that while defendants were entitled to recover the purchase money previously tendered to plaintiff, they were not entitled to recover consequential damages, and that the remedy provided by the express warranty given defendants failed in its essential purpose. Finally, the trial court ordered that plaintiff could recover, on its cross-claim against Massey-Ferguson, Inc., the sums awarded defendant.
II
Motion To Dismiss
Plaintiff and third-party defendant raise fifty-eight (58) assignments of error and bring forth twelve (12) arguments on appeal. Appellants, by their first argument, contend that the trial court erred when it denied both plaintiff's and third-party defendant's motions to dismiss defendants' counterclaim and third-party claim, made pursuant to Rule 41(c) of the North Carolina Rules of Civil Procedure. Involuntary dismissal under Rule 41(b) is properly granted in the following circumstances: (1) if the party with the burden of proof has shown no right to relief, or (2) if that party has shown a right to relief but the trial court as trier of fact determines that the movant is entitled to a judgment on the merits. Jones v. Insurance Co., 42 N.C.App. 43, 255 S.E.2d 617 (1979). "The question raised [by a] motion to dismiss [pursuant to Rule 41(b) ] made at the close of all the evidence is whether any findings of fact could be made from the evidence which would support a recovery for [the party with the burden of proof]." [Citation omitted.] Neasham v. Day, 34 N.C.App. 53, 55, 237 S.E.2d 287, 288-89 (1977). The denial of the appellants' motions and entry of judgment for defendants sub judice means that the trial court concluded that defendants presented sufficient evidence to show a right to relief. Since our review of the record reveals that that conclusion was supported by findings of fact based on competent evidence, we affirm the trial court's denial of appellants' motions. Cf. Jones v. Insurance Co. 42 N.C.App. at 46, 255 S.E.2d at 619 (denial of motion for involuntary dismissal and entry of judgment for plaintiff held, reversible error because conclusion not supported by findings based on competent evidence).
III
Evidentiary Rulings
Appellants' eleven remaining arguments concern evidentiary rulings of the trial court. Because the trial court made numerous factual findings and evidentiary rulings, we set forth appellants' contentions concerning them seriatum. Argument # :...
2. The trial court erred when it found that the combine was defective, based on testimony given by lay witnesses.
3. The trial court erred when it found as a fact and concluded that defendants' revocation of acceptance was reasonably made in a timely fashion.
4. The trial court erred when it found as a fact and concluded as a matter of law that defendants reasonably expected defects in the combine had been or would be cured and that defendants' acceptance of the equipment was induced by plaintiff's assurances that the nonconformity would be cured.
5. The trial court admitted evidence, extrinsic to the warranty contract, in violation of the parol evidence rule.
6. The trial court erroneously assumed that the gravamen of defendants' counterclaim and third party complaint was breach of express warranty.
7. The trial court erroneously found that defendants relinquished the combine in November 1977, and should have found that defendants returned it in January or February of 1978.
8. The trial court admitted evidence concerning the date of the renewal contract in violation of the parol evidence rule.
*528 9. The trial court admitted evidence relevant only to matters not pleaded.
10. The trial court failed to find that plaintiff was entitled to recover interest on the unpaid open account at an A.P.R. of 18%.
11. The trial court erroneously admitted testimony concerning the legal effect of a letter.
12. The trial court erroneously concluded that the express warranty contained in the original contract failed in its essential purpose.
The applicable rules follow.
When, as here, issues are tried before the court sitting without a jury, the trial court sits as both judge and jury. Findings of fact so made, if supported by competent evidence, are as conclusive on appeal as a jury verdict. McMichael v. Motors, Inc., 14 N.C.App. 441, 188 S.E.2d 721 (1972). Further, it is presumed that a trial judge, when sitting as fact finder, is able to and does sift through the evidence presented, considering only that which is competent, and discarding the rest. Cf., State v. Sneed, 14 N.C.App. 468, 188 S.E.2d 537 (1972) (judge presumed to have considered only competent evidence during voir dire hearing).
We have conducted an extensive review of the briefs and records in this case and find that there was plenary competent evidence to support the trial court's findings, that those findings support its conclusions, and that the conclusions support the judgment. Although four (4) of the "findings" are more properly denominated conclusions of law, appellants were not prejudiced by that error since they, too, are based on facts which are supported by competent evidence.
Accordingly, we find no error in the appellants' trial and affirm the judgment below.
Affirmed.
ARNOLD and PHILLIPS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330026/ | 301 S.E.2d 187 (1983)
STATE of West Virginia
v.
John Edward WILLIAMS.
No. 15560.
Supreme Court of Appeals of West Virginia.
March 10, 1983.
*188 Timothy Cogan, Michael J. Moyle, Wheeling, for appellant.
Chauncey H. Browning, Jr., Atty. Gen., and Silas B. Taylor, Asst. Atty. Gen., Charleston, for appellee.
NEELY, Justice:
John Edward Williams appeals from a jury verdict finding him guilty of the murder of Carlton Harris, and sentencing him to the State Penitentiary for life. Several confessions were used as evidence against appellant at the trial. In State v. Williams, W.Va., 249 S.E.2d 758 (1980), we ruled that a first confession by the appellant was inadmissible, and that the State therefore had the burden of rebutting a presumption that subsequent confessions were the product of the first and were also inadmissible. The State has failed to meet this burden, and we must reverse appellant's conviction.
I
The background of this case is a lengthy one. In February of 1974 an elderly couple, Dorothy and Carlton Harris, were found beaten to death in the basement of the couple's home in Moundsville, West Virginia. At the March, 1974 term of the Circuit Court of Marshall County the appellant was indicted for both murders, and in May of 1975, he was convicted of the murder of Mrs. Harris. We overturned this conviction in State v. Williams, supra, upon finding that the first confession, elicited from the appellant after a custodial search turned up incriminating evidence, should have been excluded. The case of Mr. Williams came before us again in the form of a petition for a writ of prohibition to restrain the trial court from permitting the appellant's subsequent confessions to be admitted into evidence, and to restrain the trial court from going forward with the trial, since appellant disputed a ruling that he was competent to stand trial. State ex rel. Williams v. Narick, W.Va., 264 S.E.2d 851 (1980). We denied that petition on the procedural grounds that it would have been improper, under the circumstances, for us to use the writ of prohibition to review essentially factual determinations by the trial judge. The State has now gone forward with its prosecution of the defendant for the murder of Mrs. Harris's husband, and using the four subsequent confessions, has secured a conviction of the appellant for the murder of Carlton Harris. We are now called upon to review on appeal those matters we could not properly review in prohibition.
II
The first matter is the admissibility of the four subsequent confessions introduced at trial by the State. As we have said, appellant's first confession is inadmissible, *189 and its inadmissibility gives rise to a presumption that the subsequent confessions share its taint. The standard that the State must meet in order to use subsequent confessions is that the connection between them and the inadmissible first confession must have become "so attenuated as to dissipate the taint." State ex rel. Williams v. Narick, supra, at 855, citing: Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939).
The evidence indicates the following chain of events leading to the taking of the confessions: At approximately 1:25 a.m. on February 28, five police officers went to the appellant's home, and requested that he voluntarily come to the police station. Mr. Williams agreed, and was driven to the station. At 1:55 A.M., Mr. Williams signed a Waiver of Rights form, and was questioned. During the questioning the appellant assented to a search of his clothing. The search produced a watch belonging to the victim and, presented with the watch, the appellant began to confess. At approximately 3:00 A.M., the appellant's first statement the statement ruled inadmissible in State v. Williams, supra was taken. It is from this point that we must, on review, measure the attenuation of the taint. In order to find the subsequent confessions admissible we must find evidence of "a break in the causative link running between the confessions." Id. at 764.
The record reveals that the first of the subsequent confessions was taken at the police station at 5:05 A.M. the same day. Williams was then incarcerated at approximately 6:00 A.M. At 8:30 the following morning, March 1, another confession was taken at the Marshall County jail. The fourth in the series was taken at 1:15 P.M. on March 2, and the final confession in the series was taken at 6:45 P.M. on March 3.
There is no question here of police misconduct or brutality. However, police behavior need not rise to the level of misconduct before constitutional protections may attach. Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977). Furthermore, it is not on the issue of police behavior that the question exclusively turns. As Professor Whitebread points out, "The two categories of factors in the due process cases are (1) the police conduct involved and (2) the characteristics of the accused." C.H. Whitebread, Constitutional Criminal Procedure 164, (1978). The totality of the circumstances in this case indicate that the subsequent confessions admitted at the trial below were not voluntary and independent, but rather were more fruit of the original "poisonous tree."
The elements leading us to this conclusion are several. First, the standard of admissibility for the later confessions was raised by the inadmissibility of the first confession as the product of an involuntary custodial search. The confessions not only had to be "voluntary," but also in some way independent of or distinct from the original confession. Second, the appellant suffers from a mental disability. On the Wechsler Adult Intelligence Scale the appellant scored a total IQ of 59, which puts him in a category of extremely low intelligence. The mental defect of the appellant throws into question his ability to understand the Miranda warnings, State v. Hamrick, W.Va., 236 S.E.2d 247 (1977), and appears to have rendered him highly suggestible.[1] Furthermore, it implies that he may be so incapable of gathering his limited wits about him that any confession made on his own after the series of confessions had begun would not be the product of the mental regrouping required for the confession to be independent and voluntary. Third, there are a number of factors that tend to suggest that there was no break in the causative link connecting the confessions. These factors include the uninterrupted detention of the accused, his repeated interrogation *190 without a lawyer present,[2] and the presence at each interrogation of officers present at prior confessions.
Finally, and perhaps most importantly, the confessions appear in fact to be cumulative. The first of these subsequent statements was taken only two hours after the original confession, during which time the accused was taken to the scene of the crime and there questioned further. These two statements appear to represent not independent confessions, but rather the separate reduction to writing of two stages in one prolonged interrogation which moved from the police station to the scene of the crime and back. The second, third and fourth in the series of subsequent confessions were admitted by the police to have been derived from the prior confessions, as the following testimony taken at a hearing below shows:
Q. Could you tell the Court why you decided to take a third statement from Mr. Williams at that time?
A. Yes. There were several unclear parts to this as to who instigated the action, who actually took the action; who participated in it; who knew that these people were on Third Street; did they go there by chance? Did they go there by design? There were any number of questions we had.
Q. What you're trying to say then is after reviewing the first and second statement, there were more questions you wanted to ask him?
A. Yes, sir.
Q. And that's why you said something that the third confession is a more detailed statement of what appears in the second confession?
A. Yes, sir.
....
Q. At 1:15 P.M. on March 2nd, 1974, voluntary statement number # 4, was given by John Williams. What was your occasion that day to go back to Mr. Williams for a fourth time, for a fourth statement?
A. I believe we had talked to Moore prior to that statement and there was some missing articles. I believe that a radio was missing, items taken from the house we hadn't located yet and I think some of those questions determined what happened to some of this and I believe we had talked to Moore prior to this statement at Tyler County.
Q. To the best of your memory, is the substance on the 4th and the substance of the 3rd confession about the same but again the fourth being a more detailed statement?
A. Yes, I believe so.
....
Q. Now the fifth confession was the 3rd of March at 6:45 P.M. What was the occasion of taking this fifth statement from the defendant?
A. Well, again, at this late date I would say we had gathered some more information. Like I say it was an on-going investigation and we probably came on a piece of information somewhere that we needed to clear up.
Q. Did you again examine the prior confession and would you have gone there to fill in some gaps in that confession?
A. I wouldn't say we would go back and examine one because we would more or less remember what was told to us by John and something would reflect what John said and we would try to get that matter straightened out.
Q. To the best of your knowledge, is the substance of the fifth one similar to that of the fourth and third confession?
*191 A. Yes. I would say that the substance would be the same. Yes, sir. If you are talking about admitting complicity in the crime, we were more or less looking for details. We had two people we felt were involved in this and we were more or less looking for details.
The circumstances of this case compel the conclusion that the taking of these serial confessions amounted to a continuing harvest of the fruit of the "poisonous tree" the original warrantless arrest and custodial search. No break in the causative link connecting these confessions having been established by the State, we hold that the confessions were incorrectly admitted into evidence by the trial court, and that this is reversible error.
III
Since we are bound on the basis of the admission of these confessions to reverse the trial court's finding of guilt, we need not reach any further issues in this case. We are, however, concerned with the trial court's refusal to permit the appellant to introduce a sixth, previously suppressed, confession into evidence.
In this sixth confession Williams confessed to raping Dorothy Harris, a rape which the evidence indicated never took place. While the confession was deemed inadmissible for the purpose of proving the guilt of the accused, it was not per se inadmissible. Conceivably, evidence of Williams' confession to a rape that never actually occurred could have been vital to his theory of the case, and should have been admitted. See State v. Foster, W.Va., 300 S.E.2d 291 (1983). However, there is no record of any such theory being intelligently advanced by the appellant, and we do not expect trial judges to read the minds of defendants in order to ascertain their theory. Furthermore, the only likely purpose of introducing the sixth confession would be to discredit the four admitted confessions, and these we have just ruled inadmissible. Defendant's argument with respect to the admission of the sixth confession is theoretically correct, but is in this case rendered moot.
Where a statement or confession is inadmissible by the State because of a constitutional infirmity in the method by which it was obtained, the reason for its inadmissibility is the belief that illegal police conduct will be discouraged if the prosecutorial enterprise is denied the fruits of the illegal conduct. The constitutional right to have a tainted statement or confession suppressed is a natural outgrowth of a defendant's right to constitutional police conduct, and is personal to the defendant. Accordingly, since a defendant may knowingly and intelligently waive a constitutional right, Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) it is only logical to infer that he may waive the sanction of inadmissibility and demand that an otherwise inadmissible statement that tends to prove his theory of the case be introduced into evidence.
This does not mean, of course, that the defendant may selectively introduce parts of otherwise suppressed statements in order deliberately to create a false impression in the minds of jurors. The exclusionary rule is a shield, and not a sword, to criminal defendants. In fact, evidence inadmissible in the State's case in chief is constitutionally admissible by the State to impeach a criminal defendant where he attempts to proffer contradictory testimony. State v. Goodmon, W.Va., 290 S.E.2d 260 (1981); Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1970). Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954).
IV
The appellant asserts numerous other assignments of error. He asserts that the trial court erred in finding the appellant competent to stand trial. W.Va.Code, 27-6A-2(b) [1977] states in pertinent part that "[a]t the termination of [the competency] hearing the court of record shall make a finding of fact upon a preponderance of the evidence as to the individual's competency to stand trial based on whether or not the *192 individual is capable of participating substantially in his defense and understanding the nature and consequences of a criminal trial." As Code, 27-6A-1(d) [1977] states, "[a] finding of incompetence for trial shall require proof by a preponderance of the evidence." While we are not absolutely convinced of the appellant's competency, neither are we convinced that the trial court's finding of fact on this matter, supported by the testimony of both state psychiatrists, was "clearly wrong." State v. Meek, 107 W.Va. 324, 148 S.E. 208 (1929).
Appellant also asserts that he was entitled to a directed verdict on the issue of his insanity, and that the court erred in refusing to grant the motion. The appellant has ignored our recent decision concerning directed verdicts on the issue of insanity, State ex rel. Smith v. Scott, W.Va., 280 S.E.2d 811 (1981), where we advised that the trial court "may, and in many cases must," direct the verdict where "the issue of sanity has been fully developed at trial and it conclusively appears that the defendant was not criminally responsible at the time the crime was committed." Id., at 813. In this case the conflicting evidence adduced at trial forecloses the possibility that the evidence was "conclusive" of insanity, even if, as the appellant alleges, his psychiatric experts were superior to the State's psychiatric expert.
Appellant's other assignments of error seek to condemn the following actions of the trial court: (1) limiting the appellant's psychiatric expert's testimony on the subject of the qualifications and ability of the State's psychiatric expert; (2) refusing to forbid the prosecutor's asking witnesses whether the defendant was capable of distinguishing right from wrong, and thereby "adopting" the M'Naghten test of insanity; (3) admitting a selection of photographs the appellant considers gruesome; (4) denying a defense motion for a change of venue; and (5) instructing the jury with regard to the felony murder rule, whose application to this case is alleged to have surprised appellant. Finally, appellant states that the trial judge's attitude was antagonistic and un-cooperative, amounting to a "donning of prosecutorial garb" by the judge in violation of a criminal defendant's right to a fair trial. We have examined the record with these assignments of error in mind, and find them to be without merit.
However, because the admission of the tainted confessions amounts by itself to reversible error, the verdict below is reversed and the case remanded to the Circuit Court of Marshall County for further proceedings consistent with this opinion.
Reversed and remanded.
NOTES
[1] The defense's psychiatric expert testified at length to the appellant's susceptibility to suggestion. Although the state's expert disagreed with the defense expert's conclusions on nearly every matter, he did admit of the appellant that "you can put anything in his mouth."
[2] Since the appellant did not request a lawyer, the confessions do not fail on the basis of appellant's lack of legal counsel. However, advice of counsel and the presence of the lawyer at an interrogation would, in these circumstances, very likely indicate a break in the causative link connecting that confession to prior confessions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330041/ | 301 S.E.2d 158 (1982)
Dana Lee HECK
v.
James Wayne HECK.
No. 15631.
Supreme Court of Appeals of West Virginia.
November 19, 1982.
Rehearing Denied March 30, 1983.
Leo Catsonis, Charleston, for appellant.
James F. Cain, Pros. Atty., Elkins, for appellee.
PER CURIAM:
Appellant, Dana Lee Heck,[*] appeals from a July 2, 1982 final order of the Circuit Court of Randolph County awarding permanent custody of the parties' two minor children to appellee, James Wayne Heck. The July 2 order was entered pursuant to a February 24, 1982 order of this Court remanding the matter to the circuit court to make specific findings of fact and conclusions of law regarding the award of custody. Appellant contends that on remand the trial court failed to follow the mandate of Garska v. McCoy, W.Va., 278 S.E.2d 357 (1981) that custody be awarded to a fit primary caretaker who has not waived or otherwise relinquished his or her right to custody. It is clear that the trial court failed to follow Garska, and we reverse and remand.
We observe initially that neither of the parties' fitness as a parent has been challenged, and that nothing in the record indicates that either is in any way unfit to have custody of the children.
On January 7, 1981 appellant filed a complaint against appellee seeking a divorce and requesting temporary and permanent custody of the parties' two daughters. The *159 appellant was employed full time by the Randolph County School Board as a sixth-grade teacher. Appellee was employed as a distributor of chainsaws. At a March 12, 1981 hearing in this matter one of the girls was four and one-half years of age and the other was three and one-half years of age. At the hearing appellant claimed to have general responsibility for cooking meals, reading books to the girls, taking them to the doctor and for supervising them at home in the evenings. She called two witnesses who supported her contention that she was the children's primary caretaker.
On direct examination appellee made no affirmative claim that the appellant was not the primary caretaker. During cross examination the appellee engaged in the following colloquy with trial counsel for appellant:
"Q. Well, let me ask you this, whenever the two of you have been together with the children, who, basically, had the responsibility of feeding, bathing, and putting the children to bed, diapering the children and this sort of thing?
A. She did, she's a mother.
Q. And she still a mother [sic]?
A. She is, yes.
Q. And she did have that basic responsibility on her behalf, right?
A. Yes, she did.
* * * * * *
Q. Okay, she did most of it, and you did some of it?
A. Right.
Q. Why didn't you do most of it?
A. Why should I, I'm earning a living for her.
MR. [JAMES F.] CAIN: [COUNSEL FOR APPELLEE] He has a good job, that's my objection.
THE COURT: Well, he answered it.
Q. And your answer was, why should I, you're earning a living?
A. Sure."
While several witnesses, including appellant's mother, Betty Duckwell, testified that in their opinion, the girls would be better served by placing them in the custody of appellee, none suggested that appellant was not the primary caretaker. In fact, the bulk of the testimony by appellee's witnesses tended to reinforce appellant's contention that she was the primary caretaker. For instance, during cross examination of Duckwell the following exchange occurred:
"Q. Did he [appellee] diaper the kids?
A. I beg your pardon?
Q. Did he diaper the kids? Did he feed the kids?
A. A man usually doesn't do these things the first year or two because his children are small. That's the mother's responsibility."
Another defense witness, James Parsons, based his opinion that the custody of the children should be given to appellee upon the fact that in 1979 appellant had absented herself from the home to attend the summer session of West Virginia University. However, Parsons admitted that he thought attending summer school was a good idea and that he had encouraged appellant to remain in school. Partially as a result of attending summer school appellant did subsequently receive her master's degree.
Appellee noted that appellant returned home on Thursdays and left on Monday mornings during the period she attended summer school. Appellee's testimony regarding these weekends further indicates appellant's role in the family:
"Q. Okay, then in the course of that long weekend thing from Thursday or Friday through Monday morning did she then take care of the laundry and get everything ready for the next week when you'd be with the kids?
A. Yes, sir."
Appellee further testified that the decision for appellant to attend summer school was made jointly by the parties.
Finally, we turn to the trial judge's supplemental order of July 2, 1982, issued in response to our February 24, 1982 order requiring him to make specific findings of fact and conclusions of law. The trial judge did not find that appellant was not *160 the primary caretaker, nor did he conclude that the appellant was unfit to have custody of her daughters. Rather, the lower court complained that syllabus point 6 of Garska v. McCoy, W.Va., 278 S.E.2d 357 (1981) was "clearly wrong", and declined to follow it.
Syllabus point 6 of Garska, supra, states as follows:
"In a divorce proceeding where custody of a child of tender years is sought by both the mother and father, the court must determine in the first instance whether the primary caretaker is a fit parent, and where the primary caretaker achieves the minimum, objective standard of behavior which qualifies him or her as a fit parent, the trial court must award the child to the primary caretaker."
In syllabus points 3 and 4 of Garska we defined primary caretaker and established broad standards for trial courts to use in determining whether any party to an action is a primary caretaker. Syllabus point 3 states:
"The primary caretaker is that natural or adoptive parent who, until the initiation of divorce proceedings, has been primarily responsible for the caring and nurturing of the child."
Syllabus point 4 explicitly applies the criteria established in the definition above to the trial court's determination of whether a party is the primary caretaker:
"In establishing which natural or adoptive parent is the primary caretaker, the trial court shall determine which parent has taken primary responsibility for the caring and nurturing duties of a parent."
It remains only for us to apply the law established in Garska to the facts of this case.
There is no significant evidence in the record to indicate that appellee had a major role in the caring and nurturing duties for the children. The evidence adduced revealed that while both parents had been employed full time during most of the marriage, appellant had been the primary caretaker for the parties' two girls. In fact, both the appellee and the trial court implicitly recognized appellant's role as primary caretaker.
In the absence of any allegation of unfitness, much less a finding of unfitness by the trial judge, appellant, as the primary caretaker, is entitled to permanent custody of the parties' two children. We reverse and remand with directions that the circuit court enter an order in accord with the principles expressed herein.
Reversed and Remanded.
NOTES
[*] Appellant remarried during the course of this litigation and her surname is now Cales. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330045/ | 301 S.E.2d 832 (1983)
STATE of West Virginia, ex rel. William B. ASH
v.
James R. RANDALL, Mayor, City of St. Albans, and Chairman of the Municipal Utility Commission; and L.E. Thompson, Frank Meredith, Dr. A. Bruce McCuskey, and John J. Doub, Members of the Municipal Utility Commission, City of St. Albans.
Nos. 15522, 15526.
Supreme Court of Appeals of West Virginia.
March 30, 1983.
*833 Daniel F. Hedges, Charleston, for appellee.
Charles M. Surber, Jr., Jackson, Kelly, Holt & O'Farrell, Charleston, for appellants.
McHUGH, Justice:
This is a consolidated appeal by both parties from an order entered on December 18, 1981, by the Circuit Court of Kanawha County, West Virginia. That order required the City of St. Albans to reinstate William B. Ash to his former employment with the City's Municipal Utility Commission (hereinafter "Commission"). James R. Randall, et al. appeal from that part of the order. However, the trial court also denied Ash back pay and other benefits he would have accrued had he not been discharged. It is from that part of the order that Ash appeals. We have before us the petitions for appeal, all matters of record and the briefs and argument of counsel.
On September 2, 1977, Ash began employment with the Municipal Utility Commission of the City of St. Albans, West Virginia, as a water plant operator at the City's Water Treatment Plant. On August 25, 1978, he entered Highland Hospital for psychiatric treatment. Ash was discharged from the hospital on September 16, 1978, and was advised by his treating psychiatrist, Dr. Pablo Pauig, that he could resume his employment on September 25, 1978.
After Ash's release from the hospital James R. Randall, the Mayor of St. Albans and Chairman of the Commission, contacted Dr. Pauig. Randall's conversation with Dr. Pauig concerned Ash's ability to responsibly resume his duties as a water plant operator. Randall testified that because Dr. Pauig could offer no assurance that Ash could perform his responsibilities at the Water Treatment Plant, Randall thought it best to get a second opinion concerning Ash's condition. Whereupon, he requested that Ash be evaluated by Dr. Ralph Smith, Jr., a psychiatrist, on October 2, 1978. Ash voluntarily agreed to the evaluation. Dr. Smith's diagnosis of Ash was "[p]robable manic depressive disorder." Dr. Smith also made the following recommendation: "Due to the recurrent nature of this illness which affects his reason and judgment, he would be in a high risk situation in a responsible position where the citizens of St. Albans depend for their health on his ability to make good judgments and timely decisions." Upon receiving Dr. Smith's report, and after conferring with Ash's supervisor, Randall terminated Ash's employment on October 13, 1978.
On October 18, 1978, Ash requested to be reinstated to his former position. After his request was denied by Randall, Ash petitioned the Circuit Court of Kanawha County for a writ of mandamus compelling his reinstatement with back pay. Following a *834 nonjury trial, the trial court held that Ash was terminated in contravention of W.Va. Code, 27-5-9(a) [1977].[1] In so holding, the trial court issued the writ of mandamus compelling his reinstatement. However, the trial court also held that because mandamus was not the appropriate remedy for lost wages the request for back pay would be denied.
In this action, we are presented with two issues: (1) whether Ash was properly terminated from his employment with respect to W.Va.Code, 27-5-9(a) [1977]; and (2) if he was, whether a writ of mandamus will be issued compelling the Commission to pay Ash the wages he would have earned had he not been discharged. The issues will be discussed in the order presented.
W.Va.Code, 27-5-9(a) [1977], provides, inter alia, that "[n]o person shall be deprived of any civil right solely by reason of his receipt of services for mental illness." Our initial inquiry must therefore focus upon whether Ash was discharged from his employment "solely by reason of his receipt of services for mental illness."[2] The trial court, however, did not make such a determination. Instead, the trial judge held that "[f]or all practical purposes it is obvious from the record that Mr. Ash was removed from his employment because of his mental condition," and that "the evidence is not conclusive that the absence of a mental disease or disorder is essential to the position of water treatment operator." He therefore concluded that the discharge was improper. It is apparent that the basis of the trial court's decision went beyond the provisions of W.Va.Code, 27-5-9(a) [1977].
We are also of the opinion that even if Ash had been improperly discharged solely because he received services for his mental illness, in addition, he must show under Hurley v. Allied Chemical Corporation, supra, that he was "otherwise qualified" for his employment as water plant operator.
It should be noted that with respect to the question of whether Ash was discharged solely by reason of his receipt of services for mental illness, and the related question of whether Ash was otherwise qualified as water plant operator, we recognize a duty on the part of Randall as Mayor of the City of St. Albans and Chairman of the Municipal Utility Commission to consider the health and safety of the public. Attendant to that duty is ensuring that the individuals who are employed by the city are capable of performing their responsibilities without compromising the health and safety of the public. Randall as Mayor and Chairman of the Commission must be afforded certain latitude when analyzing an individual's capacity to responsibly perform his employment duties.
It has been recognized that the health and safety of the public are legitimate and primary concerns of municipal government. 7 McQuillin Municipal Corporations *835 § 24.221 (1981). See also Father Basil's Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805 (1946). The importance of health and safety as they relate to job dismissals was recognized by this Court in State ex rel. Perry v. Miller, 300 S.E.2d 622 (W.Va.1983). In that case we allowed mine foremen to be suspended, albeit temporarily, when that suspension was necessary for health or safety reasons.
Pursuant to the provisions of W.Va. Code, 27-5-9(a) [1977], when it becomes apparent to an official entrusted with the responsibility of ensuring the health and safety of the public that an employee's mental illness compromises those concerns, it is within that official's general authority to discharge that employee. However, those circumstances do not give rise to an unlimited power to discharge that employee. The official must, under W.Va.Code, 27-5-9(a) [1977], establish that the employee was not discharged "solely by reason of his receipt of services for mental illness."
This Court is mindful of the need to protect a person who has a mental illness and who seeks treatment for that illness. However, the rights of the public must also be considered. The record in this case demonstrates that Ash was not discharged solely by reason of receipt of services for mental illness. Rather, his discharge was based upon a determination by Randall that Ash's mental illness inhibited Ash's ability to perform his employment duties, which in turn, affected the health and safety of the citizens of St. Albans.
The testimony in the present case reveals that virtually every duty of a water plant operator required Ash to make timely, well reasoned decisions.[3] While the testimony of the two psychiatrists was somewhat conflicting, it can be concluded, however, that Ash's mental illness was of such a character that it could have affected his ability to make those well reasoned judgments.[4] The testimony further reveals that if the duties of a water plant operator are not performed in a timely and responsible manner the quality and safety of the St. Albans water supply would be substantially affected.[5]
*836 The New York Court of Appeals was presented with a similar issue in McQueen v. New York City Transit Authority, 34 N.Y.2d 343, 357 N.Y.S.2d 482, 313 N.E.2d 779 (1974). In that case the Transit Police Department of The New York City Transit Authority sought to discharge a patrolman due to his "mental instability." The New York Court held that in the interest of public safety the employee could be discharged if it was shown that his mental condition interfered with his competence in performing his employment duties.
Upon all of the above we are of the opinion that where an employee has been discharged from employment in violation of the provisions of W.Va.Code, 27-5-9(a) [1977], "solely by reason of his receipt of services for mental illness," that employee in contesting the discharge must nevertheless establish under Hurley v. Allied Chemical Corporation, supra, that he or she is "otherwise qualified" for that employment, which means that the mental illness would not impair his or her ability to perform the duties of that employment.
As the above described testimony indicates, Ash failed to demonstrate that he was "otherwise qualified" to perform the duties of water plant operator. Therefore, the discharge of Ash was proper and the circuit court erred in reinstating Ash to his position.
In syllabus point 1 of Point Pleasant Register Publishing Company v. County Court of Mason County, 115 W.Va. 708, 177 S.E. 873 (1934), it was held: "The judgment of a circuit court in a proceeding in mandamus based upon a finding of fact upon conflicting testimony will not be reversed unless it appears to be clearly wrong."
Upon review of the record in this case, we conclude that the trial judge was clearly wrong in holding that Ash was able to perform his employment, contrary to Randall's authority in matters of health and safety. In so holding we are mindful that the trial judge did not have at his disposal the standard relating to health and safety which we now apply when reviewing a municipal employee's claim of discharge in violation of W.Va.Code, 27-5-9(a) [1977].
Based upon the testimony in the record, we do not deem it necessary to remand this case for further factual development. We conclude as a matter of law that Ash was properly discharged by Randall by reason of Ash's mental condition.
Accordingly, for the foregoing reasons, we hold that Ash was not discharged from his employment "solely by reason of his receipt of services for mental illness," and therefore reverse the part of the trial court's order which required the City of St. Albans to reinstate Ash as a water plant operator.[6] Because we hold that Ash's discharge was proper, we need not rule upon, nor discuss, the second issue of whether a writ of mandamus will lie compelling the city to compensate Ash for back pay.
Reversed.
NOTES
[1] W.Va.Code, 27-5-9(a) [1977] provides:
No person shall be deprived of any civil right solely by reason of his receipt of services for mental illness, mental retardation or addiction, nor shall the receipt of such services modify or vary any civil right of such person, including, but not limited to, civil service status and appointment, the right to register for and to vote at elections, the right to acquire and to dispose of property, the right to execute instruments or rights relating to the granting, forfeiture or denial of a license, permit, privilege or benefit pursuant to any law, but a person who has been adjudged incompetent pursuant to article eleven of this chapter and who has not been restored to legal competency may be deprived of such rights. Involuntary commitment pursuant to this article shall not of itself relieve the patient of legal capacity.
[2] This Court first addressed W.Va.Code, 27-5-9(a) [1977] in Hurley v. Allied Chemical Corporation, W.Va., 262 S.E.2d 757 (1980). Syllabus point 2 of that case held that, "W.Va.Code, 27-5-9(a), creates an implied private cause of action against a private employer who denies employment to an otherwise qualified individual on the sole basis that such individual has received services for mental illness, mental retardation or addiction." While Hurley concerned a prospective employee of a private employer, we did not have occasion to discuss whether a cause of action would also extend to a discharged employee of a public employer. Nonetheless, because the language and purpose of the statute are clear, we apply the principles of Hurley to the present case.
[3] The record indicates that Ash's duties at the Water Treatment Plant included maintaining chemical control machines which are used for coagulation of untreated water. If these machines are not properly operated the water can become turbid, which in turn can produce disease causing organisms called pathogens to enter the water supply. The testimony also indicates that the chemical control machines were unreliable. The unreliability required Ash's constant attention because if a machine failed, or a power outage occurred, an overflow in the water reservoir could result. An overflow could cause severe damage to the plant itself, including the stoppage of all operations for about two days. This could result in unsafe water being pumped into the community. The record reveals two instances of improper operation of the equipment by Ash, the potential hazardous effects of which were aborted by coworkers. Moreover, the testimony reveals that Ash often worked alone at the plant, and Ash himself testified that he left the plant unattended on at least one occasion.
[4] Dr. Pauig testified that Ash's diagnosis was chronic schizophrenia and that Ash's condition required him to take two tranquilizers. Given these facts Dr. Pauig further testified that while Ash remained on medication Ash should continue to be in "good remission," and therefore could continue his duties as before. However, Dr. Pauig also testified that when he released Ash to return to work, Dr. Pauig did not have a complete understanding of Ash's responsibilities. Dr. Smith testified that Ash's diagnosis was "[p]robable manic depressive disorder," and that Ash had difficulty in distinguishing reality from fantasy. Moreover, Dr. Smith was less optimistic than Dr. Pauig concerning Ash's remission. Dr. Smith also summed up Ash's condition by testifying, "I see no psychiatric impairment that would preclude his working in the capacity he worked in before, that would not require him to be in a situation where he is totally responsible for someone else's safety."
It is obvious that the psychiatrists arrived at different conclusions concerning Ash's ability as it related to his employment as a water plant operator. Randall was given a difficult choice but he had the authority under the circumstances of this case to make the decision as to Ash's continued employment as an operator.
[5] This Court also takes judicial notice of the Public Water Supply Regulations promulgated by the West Virginia Department of Health which became effective April 8, 1978, and which were in force when Ash's employment was terminated. The regulations thoroughly cover all aspects of public water supply systems. Moreover, the regulations have the force and effect of law. See generally State ex rel. Barker v. Manchin, W.Va., 279 S.E.2d 622 (1981); Mountaineer Disposal Service, Inc. v. Dyer, 156 W.Va. 766, 197 S.E.2d 111 (1973); State ex rel. Morris v. West Virginia Racing Commission, 133 W.Va. 179, 55 S.E.2d 263 (1949). The regulations in effect when Ash was discharged have been superseded by the current Public Water Supply Regulations which went into effect April 2, 1982.
[6] Randall asserts that, inasmuch as Ash was not subject to involuntary commitment under W.Va.Code, ch. 27, art. 5, Ash is not entitled to relief under the provisions of W.Va.Code, 27-5-9(a) [1977]. The Hurley decision, however, and W.Va.Code, 27-5-9(a) [1977], imply that the prohibition against discharge solely for receipt of mental health services applies beyond the provisions of W.Va.Code, ch. 27, art. 5, which is entitled "Involuntary Hospitalization." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330187/ | 165 Ga. App. 534 (1983)
301 S.E.2d 699
BUDD LAND COMPANY, LTD.
v.
CITY OF VALDOSTA et al.
65213.
Court of Appeals of Georgia.
Decided February 24, 1983.
*536 Reuben H. Yancey, for appellant.
George T. Talley, Oris D. Blackburn, Jr., for appellees.
CARLEY, Judge.
As lessor, appellant-condemnee leased to K & R Realty Company a tract of land with buildings situated thereon. The lease agreement included a provision that, in the event that the premises or any part thereof were taken or condemned, the lease could be terminated, at the lessee's option, as of the date of the taking.
In July 1980, appellee-condemnors, the City of Valdosta and *535 Lowndes County, instituted proceedings to condemn a portion of appellant's property which was under lease. Following a hearing before a Special Master, appellant was awarded a sum representing the market value of the property actually taken. The Master's award found there were no consequential damages to the remaining property. Pursuant to OCGA § 22-2-112 (Code Ann. § 36-614a), appellant appealed to the superior court from the award of the Special Master.
On August 14, 1980, the lessee of the property notified appellant of its exercise of its right, under the lease agreement, to cancel the lease as a result of the condemnation. Appellant filed suit against the lessee for rentals reserved under the lease agreement. Summary judgment was granted for the lessee, and this court affirmed in Budd Land Co. v. K & R Realty Co., 159 Ga. App. 448 (283 SE2d 665) (1981).
In connection with appellant's de novo appeal from the award of the Special Master, both parties stipulated the facts and agreed that the issue should be decided by the court on cross motions for summary judgment. The factual stipulation was that the land and buildings remaining after the taking suffered no consequential damages and were no less suitable or desirable for the purposes for which they had been leased. The controlling question of law was agreed to be as follows: "[I]s the lessor-condemnee, Budd Land Co., Ltd., entitled to consequential damages for cancellation of its lease on the subject property by [the lessee]?" Following a hearing, the superior court granted summary judgment to the appellees and appellant appeals from this order.
The issue in the instant case must be resolved by application of the rationale enunciated in State Hwy. Dept. v. Hood, 118 Ga. App. 720 (165 SE2d 601) (1968). In Hood, this court stated that "when the owner of ... land is compensated for the value of the land taken, at whatever that value may be, he is made whole. Likewise, when there is a remainder and the owner is compensated for its change in market value, if any, as a result of the taking, he is made whole." State Hwy. Dept. v. Hood, supra, 722. Compare Carasik Group v. City of Atlanta, 146 Ga. App. 211 (2) (246 SE2d 124) (1978) where the condemned property was no longer usable for the purposes for which it was originally leased. In view of the stipulation that there was no diminution in the value of the property remaining after the taking, the trial court did not err in granting summary judgment in favor of the appellees.
Judgment affirmed. Shulman, C. J., and Quillian, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724750/ | 462 S.W.2d 289 (1971)
Dorothy Kate HELTZEL, Appellant,
v.
The STATE of Texas, Appellee.
No. 43292.
Court of Criminal Appeals of Texas.
January 27, 1971.
*290 Emmett Colvin, Jr., Dallas, for appellant.
Jim D. Vollers, State's Atty., Austin, for the State.
OPINION ON APPELLANT'S MOTION FOR REHEARING
ODOM, Judge.
The prior opinion is withdrawn.
The offense is burglary; the punishment, eight years.
No grounds of error are set forth in a brief filed in the trial court as required by Article 40.09, Sec. 9, Vernon's Ann. C.C.P. However, the appellant's contention, which was raised for the first time in a brief filed in this court, will be considered as unassigned error pursuant to Article 40.09, Sec. 13, V.A.C.C.P. Dodd v. State, Tex.Cr.App., 436 S.W.2d 149; and Johnson v. State, Tex.Cr.App., 436 S.W.2d 906.
The appellant contends that her conviction is void for the reason that the search of the automobile which she had been driving was illegal and fruits of that search were inadmissible in evidence.
The record reflects that prior to any mention of the search in question or the fruits thereof, by the state, counsel for the appellant elicited from Officer Norman of the Dallas Police Department the following testimony:
"Q. Did you talk to herWas the automobile ever searched in front of the building?
"A. Yes.
"Q. Were you present?
"A. Pardon?
"Q. Were you present while it was searched?
"A. Yes.
"Q. Did you ever talk to Mrs. Heltzel after that?
"A. Yes.
"Q. After the automobile was searched and after Mrs. Heltzel and the car was in the front, did you ever ask her if she had anything to do with breaking and entering that shopping center?
"A. On the way downtown, sir, I did.
"Q. What was her reply?
"A. She said, `No.'
"Q. Did she tell you she had put any of that merchandise in that automobile you had seen her driving that you later saw searched?
"A. She did not, sir.
"Q. Did she deny she put any of it in there?
"A. I didn't ask her if she put it in there, I asked her if she knew how it got there.
"Q. She said that she didn't know?
*291 "A. Yes.
"Q. Did you ask her if she knew it was in there?
"A. I believe I did, yes.
"Q. What was her reply to that?
"A. She said no.
"MR. HENDERSON: I believe that is all."
Any objection which appellant might have to the admission of evidence of the fruits of the search was waived when testimony about the same search was first elicited on cross-examination by appellant's own counsel. 56 Tex.Jur.2d, Trial, Sec. 158; Brown v. State, Tex.Cr.App., 457 S.W.2d 917, and cases cited therein.
The appellant's ground of error is overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262791/ | 306 A.2d 672 (1973)
STATE of Vermont
v.
Daniel BRULEY.
No. 38-72.
Supreme Court of Vermont, Chittenden.
June 5, 1973.
Patrick J. Leahy, State's Atty., and Paul D. Jarvis, Deputy State's Atty., for the State.
Robert E. West, Defender Gen., and George E. Rice, Jr., Deputy Defender Gen., Montpelier, for defendant.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
BARNEY, Justice.
This is an appeal from a conviction for breach of the peace by an assault on a deputy sheriff at the Burlington Correctional Center in 1971. The only issue presented relates to the furnishing of counsel to the respondent as an indigent.
This appeal was conducted on behalf of the respondent by the office of the defender general. At trial he was represented by a competent attorney experienced in criminal law practice. This was his third assigned counsel in this case, both of the others being likewise experienced and competent.
His objection to this third counsel came at the time of empanelling of the jury. At that time the trial court refused to make another change in assigned counsel, and stated there would be no new counsel unless respondent wished to hire one of his own choosing, or represent himself. See State v. Polidor, 130 Vt. 34, 39-40, 285 A. 2d 770 (1971). The court went on to say that in the event the respondent undertook to represent himself, his assigned counsel would be at hand at all times to assist him. The matter then went to trial with this same counsel representing him without further objection on the part of the respondent.
The dissatisfaction expressed by the respondent at the time of the jury drawing was that he wanted "a specific counsel" who was never named. The record makes it clear that it was the right to select his own counsel that the respondent was contending for by his objections. When it became apparent that the trial court was not inclined to again change counsel, the respondent then stated he could not establish any rapport with the counsel he had. He went on to say that this had also been true with respect to his previous counsel. The difficulty seemed to center on the respondent's willingness to have any incompetency or insanity defense explored by his attorney, or advanced on his behalf, although he had undergone psychiatric examination as recently as 1970. No such defense was presented at trial. No claim of any kind is made that there was any shortage in his counsel's ability, or any assertion that conviction came about on account of any shortcoming, oversight or deficiency in the performance of his assigned counsel.
The advent of the office of public defender has now altered the manner of representing indigents in criminal matters. Resort to outside practitioners will now be *673 substantially reduced. However, even when all defense of indigents was provided by assigned counsel, selection rested in the trial court and was not a matter of the respondent's choice. Although free to honor that choice where possible and practical, the court's duty was to provide the respondent with competent counsel of sufficient ability and experience to fairly represent the respondent, to present his defense, and to protect his rights. State v. Rushford, 127 Vt. 105, 109, 241 A.2d 306 (1965).
The record on appeal shows no deficiencies in any of these particulars in the counsel that conducted his defense at trial, nor, indeed, any claim of any such shortage. If the alleged "lack of rapport" had any effect of any kind on the effective presentation of the defense, it was not evidenced anywhere in the record, and the respondent has not demonstrated it here. In re Murphy, 125 Vt. 272, 274, 214 A.2d 317 (1965).
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330210/ | 586 S.E.2d 530 (2003)
FNB SOUTHEAST, Plaintiff,
v.
John B. LANE, Trustee of the Craig M. Keefer Trust established u/a November 9, 1993, Craig M. Keefer, Trustee of the Craig M. Keefer Trust, established u/a November 9, 1993, Defendants.
No. COA02-1424.
Court of Appeals of North Carolina.
October 7, 2003.
*531 Tuggle Duggins & Meschan, P.A., by Kenneth J. Gumbiner and Michael S. Fox, Greensboro, for defendants.
Carruthers & Roth, P.A., by Kenneth R. Keller and Norman F. Klick, Jr., Greensboro, for plaintiff.
WYNN, Judge.
On appeal, Craig M. Keefer, Trustee of the Keefer Trust[1] presents the following questions: (I) Was it an abuse of discretion for the trial court to refuse to hear Keefer Trust's motion to amend its answer; (II) Did the trial court erroneously grant summary judgment in favor of FNB Southeast; and (III) Did the trial court erroneously award attorneys fees to FNB Southeast? After careful review, we uphold the trial court's judgment.
In November 1999, FNB Southeast, a bank, entered into a loan agreement with Apparel Sales and Printing, Inc., a company wholly owned by 3-I, Inc. which in turn was 80% owned by Keefer Trust. In 2000, Apparel Sales and Printing sought modification of the loan agreement in order to release some of the equipment secured by the loan. The parties agreed that the Keefer Trust would guarantee the new loan. Before entering into the collateral substitution agreement, FNB Southeast requested and examined Keefer Trust's financial statements and trust documents and obtained an opinion letter from the trust attorneys regarding the trust's authority to enter into the agreement. Thereafter, FNB Southeast, Apparel Sales and Printing, and Keefer Trust trustee, John B. Lane, executed the modified loan agreement on 17 November 2000. In September 2001, the loan agreement was modified to permit the loan payments for August, September and October 2001 to be made by 31 October 2001. However, when Apparel Sales and Printing failed to make the payment, FNB Southeast brought the subject action seeking $785,370.14 plus costs, expenses, interest, and attorney's fees. Keefer Trust answered on 21 February 2002.[2]
*532 Thereafter, FNB Southeast moved for summary judgment. However, following a 25 March 2002 deposition and FNB Southeast's production of documents, Keefer Trust moved on 31 May 2002 to amend its answer to include three affirmative defenses. On 4 June 2002, the trial court refused Keefer Trust's motion to amend and granted FNB Southeast's motion for summary judgment. Keefer Trust appeals.
Keefer Trust first argues the trial court abused its discretion in refusing to hear the motion to amend its answer. We disagree.
Under N.C. Gen.Stat. § 1A-1, Rule 15, after service of a responsive pleading, "a party may amend his pleading only by leave of court or by written consent of the adverse party." Accordingly, Keefer Trust could amend its answer by FNB Southeast's written consent, which was never given, or by leave of court. Although Rule 15 further provides that leave to amend should be freely given, we review the denial of a motion of to amend under the abuse of discretion standard. See Duncan v. Ammons Constr. Co., Inc., 87 N.C.App. 597, 361 S.E.2d 906 (1987).
In this case, the trial court held the motion for leave to amend was not timely filed as of the date of the hearing. Under N.C. Gen.Stat. § 1A-1, Rule 6(d), "a written motion ... and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court." "In computing any period of time prescribed or allowed by these rules ... the day of the act, event, default or publication after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included ... When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation." N.C. Gen.Stat. § 1A-1, Rule 6.
Here, Keefer Trust filed its motion to amend on Friday, 31 May 2002, and the hearing was held on Tuesday, 4 June 2002. Since the motion was not timely filed under Rule 6, we find no abuse of discretion by the trial court in refusing to hear the motion.
Keefer Trust next contends the trial court erroneously granted FNB Southeast's motion for summary judgment because a genuine issue of material fact existed as to FNB Southeast's knowledge regarding the trustee's lack of authority to enter into the guaranty agreement.[3]
In its complaint, FNB Southeast sought $785,370.14 plus costs, expenses, interest, and attorney's fees from Keefer Trust based upon the guaranty agreement. In its answer, Keefer Trust admitted that Apparel Sales and Printing executed the loan agreement; FNB Southeast made loans to Apparel Sales and Printing; Keefer Trust trustee, John B. Lane, executed the substitution and guaranty agreements; and Apparel Sales and Printing stopped making payments to FNB Southeast as required.
Nonetheless, despite admitting all of the essential allegations required to collect on a guaranty, Keefer Trust contends summary judgment was improvidently granted because a genuine issue of material fact existed as to whether FNB Southeast knew or should have known that the Keefer Trust's trustee, *533 John B. Lane, participated in the transaction in violation of the terms of the trust. Keefer Trust argues that if FNB Southeast had actual or constructive knowledge of the trustee's breach of the trust agreement, FNB Southeast would become liable to Keefer Trust for any amount paid to FNB Southeast from the trust pursuant to the guaranty and that such liability would negate any liability of Keefer Trust to FNB Southeast under the guaranty.
An individual or entity who aids or assists a trustee with knowledge of the trustee's misconduct in misapplying assets is directly accountable to the persons injured. See Abbitt v. Gregory, 201 N.C. 577, 596-99, 160 S.E. 896, 906-07 (1931); see also Seafare Corp. v. Trenor Corp., 88 N.C.App. 404, 414, 363 S.E.2d 643, 651 (1988)(stating "all persons aiding and assisting trustees of any character with a knowledge of their misconduct in misapplying assets are directly accountable to the persons injured. The wrong of participation in a breach of trust is divided into two elements, an act or omission, which further completes the breach of trust by the trustee, and knowledge at the time that the transaction amounted to a breach of trust or the legal equivalent of such knowledge" is a "general principle of trust law [that] has been applied by the North Carolina courts").
Keefer Trust argues that an affidavit from Lisa Lesavoy, successor trustee of the Craig M. Keefer Trust, and deposition testimony from Laura Pratt, Vice President of FNB Southeast, show that FNB Southeast had actual or constructive knowledge that the trustee was violating the terms of the trust agreement. In her affidavit, Ms. Lesavoy states:
12.... Because of the relationship between LANE and SAMSON, SAMSON, and, accordingly, FNB, knew or should have known, prior to making the aforesaid loan, that LANE had caused the Keefer TRUST to advance, loan or invest in excess of $52,770,000.00 in the CHC's representing in excess of eight-four (84%) percent of the net Trust assets and more than eighty-five (85%) percent of the initial value of the Keefer TRUST, thereby extending and continuing the hereinbefore described breach of the express provisions of the governing instrument; and that most of which advances or loans were neither collectible nor secured by a mortgage, security agreement or other collateral so as to secure the Trust and gain priority as against other creditors of the CHC's.
13. After consultation with my counsel, and for the reasons hereinbefore and hereinafter set forth, I verily believe that the execution and delivery of the guaranty by John Lane to Plaintiff was in breach of the express provisions of the subject Trust Agreement and that the Plaintiff, through its officers, servants and agents knew or should have known that said guaranty was in breach of the Trust Agreement.
The affidavit also points out that FNB Southeast received copies of the Trust Agreement and trust financial statements indicating substantial trust assets were committed to closely held corporations. Furthermore, Keefer Trust contends Laura Pratt's deposition testimony that FNB Southeast requested, received and examined the trust agreement and financial statements is an indication that FNB Southeast had actual notice of the trust's requirement that certain percentages of the trust's initial principal value, the principal value of all assets transferred to the trust from the grantor's custodial account, be retained and not distributed without court approval. However, Keefer Trust did not present any evidence that FNB Southeast was aware of the trust's initial principal value. Indeed, neither the three financial statements from 1999 and 2000 nor the trust agreement provide the initial principal value of the trust. Although the trust agreement refers to an annexed Schedule A that describes the property transferred to the trust, the Schedule A is not included in the record on appeal and there is no indication by either party that FNB Southeast ever received a copy of the document. Accordingly, the record fails to show that FNB Southeast had actual notice or knowledge that the trustee was breaching the trust agreement and his fiduciary duty to the trust when he entered the substitution of collateral agreement with FNB Southeast.
*534 Moreover, the record fails to show that FNB Southeast had constructive notice or knowledge of the trustee's breach of the trust agreement. "At common law a person who deals with another whom he knows to be a trustee is put upon inquiry as to the extent of the trustee's powers and charged with knowledge of the facts which a reasonable investigation would disclose.... The third party must examine the trust instrument and look to other sources of information in order to satisfy himself that the trustee has authority to enter into the transaction which he is seeking to consummate." Kaplan v. First Union Nat'l. Bank, 99 N.C.App. 570, 573 393 S.E.2d 344, 346 (1990).
In this case, FNB Southeast requested and reviewed the trust agreement, three 1999 and 2000 trust financial statements, and received an opinion letter from Haynsworth Baldwin Johnson and Greaves, L.L.C., legal counsel to the trustee, which stated "the guaranty documents and the performance by guarantor of his obligations thereunder do not conflict with or result in a violation of the trust agreement pursuant to which the trust was established and is governed ... [and that] no registration with, consent or approval of, or other action by any federal, state, or local governmental authority or regulatory body is required for the execution, delivery, or performance by guarantor of the guaranty documents or any other documents delivered to lender in connection with the lien." Thus, the record indicates FNB Southeast conducted a reasonable investigation into the trust's authority to enter into the substitution of collateral agreement prior to approving the substitution agreement. Accordingly, we uphold the trial court's grant of summary judgment in favor of FNB Southeast.
Finally, Keefer Trust contends the trial court erroneously awarded FNB Southeast's attorneys fees relating to this action because a guaranty agreement does not constitute evidence of indebtedness under N.C. Gen.Stat. § 6-21.2 which provides in pertinent part that:
Obligations to pay attorneys' fees upon any note, conditional sale contract or other evidence of indebtedness, in addition to the legal rate of interest or finance charges specified therein, shall be valid and enforceable, and collectible as part of such debt, if such note, contract or other evidence of indebtedness be collected by or through an attorney at law after maturity, subject to the following provisions ...
(2) If such note, conditional sale contract or other evidence of indebtedness provides for the payment of reasonable attorneys' fees by the debtor, without specifying any specific percentage, such provision shall be construed to mean fifteen percent (15%) of the outstanding balance owing on said note, contract or other evidence of indebtedness.
The guaranty in this case was written, signed by the trustee, and, in the event of Apparel Sales and Printing's default, was a legally enforceable obligation to pay money, and therefore, constituted evidence of indebtedness. See Stillwell Enterprises v. Interstate Equip. Co., 300 N.C. 286, 294, 266 S.E.2d 812, 817 (1980)(holding the term "evidence of indebtedness as used in G.S. 6-21.2 has reference to any printed or written instrument, signed or otherwise executed by the obligor(s), which evidences on its face a legally enforceable obligation to pay money)." Thus, we conclude that the guaranty agreement in this case constituted evidence of indebtedness under N.C. Gen.Stat. § 6-21.2. We, therefore, uphold the trial court's decision to award attorneys fees in this case.
Affirmed.
Judges HUDSON and CALABRIA, concur.
NOTES
[1] In this matter, we refer to defendant as "Keefer Trust".
[2] Default judgment was entered against John B. Lane, former trustee of the Keefer Trust, on 18 March 2002. He is not a party to this appeal.
[3] "Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Martin Architectural Prods. v. Meridian Constr. Co., 155 N.C.App. 176, 180, 574 S.E.2d 189, 191 (2002). "An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action." Koontz v. Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). "An issue is genuine if it can be proven by substantial evidence." Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). "The movant has the burden of showing that summary judgment is appropriate. Furthermore, in considering summary judgment motions, we review the record in the light most favorable to the nonmovant." Hayes v. Turner, 98 N.C.App. 451, 456, 391 S.E.2d 513, 516 (1990). "If the moving party satisfies its burden of proof, then the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. The nonmoving party may not rest upon the mere allegations of his pleadings." Lowe v. Bradford, 305 N.C. 366, 369-70, 289 S.E.2d 363, 366 (1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330212/ | 355 S.C. 511 (2003)
586 S.E.2d 136
John E. MILES, Appellant,
v.
Rachel M. MILES, Respondent.
No. 3654.
Court of Appeals of South Carolina.
Heard April 7, 2003.
Decided June 16, 2003.
Withdrawn, Substituted and Refiled August 22, 2003.
*514 J. Leeds Barroll, IV, of Columbia, John O. McDougall, of Sumter, John S. Nichols, of Columbia, for Appellant.
J. Mark Taylor, of West Columbia, for Respondent.
STILWELL, J.:
John E. Miles ("Husband") brought this action seeking termination or, alternatively, reduction in his alimony obligation to Rachel M. Miles ("Wife"). The family court refused to terminate, but did reduce Husband's alimony obligation from $4,583 per month to $2,500 per month. Husband appeals. We affirm.
BACKGROUND
The parties married in 1962 and divorced in 1995. As part of the divorce decree, the family court adopted a written agreement between the parties in which Husband agreed to pay Wife $4,583 in monthly alimony. The agreement further provided:
*515 [T]he terms and conditions of this Agreement, and any Order approving the same, shall not be modifiable by the parties or any Court without the written consent of Husband and Wife. The parties specifically agree that the Family Court ... shall not have any jurisdiction to modify, supplement, terminate or amend this Agreement, or the rights and obligations of the parties. Nothing in this paragraph shall be construed to in any way prohibit the Family Court from the modification and/or termination of the alimony provisions of this Agreement as permitted pursuant to the law of the State of South Carolina.
On June 21, 2000, Husband brought this action against Wife seeking termination or reduction in his alimony due to a substantial change of circumstances. Husband alleged that Wife orally agreed to modify the parties' prior alimony agreement, and that Wife had entered into a relationship that was tantamount to marriage or was a common law marriage, such that alimony should be terminated.
Wife testified she had been involved in a relationship with Anthony Shepard since her divorce from Husband. Wife testified she and Shepard spend three to four nights a week together. Wife and Shepard often travel together and they maintain a joint traveling fund to which each contributes $150 per month. Wife described her relationship with Shepard as "close, personal, and emotional." Wife testified she did not consider herself married to Shepard, and denied she and Shepard had schemed to remain unmarried to avoid losing her alimony. Additionally, Wife testified she and Shepard maintain separate residences and checking accounts and do not have any joint investment or charge accounts. Wife did, however, make a one time loan to Shepard for $9,000, which Shepard repaid within a few days.
Wife testified Husband approached her in April of 1997 and discussed his intent to file an action to discontinue alimony based on her relationship with Shepard. Husband, who is an attorney, provided Wife copies of a published opinion from this court that involved termination of alimony based on the supported spouse's relationship with another party that was tantamount to marriage. According to Husband, Wife agreed at another meeting in January of 1998 that Husband could *516 terminate alimony after a two-year period. Wife testified similarly regarding the oral agreement, but the parties never reduced any modification to writing.
The family court ruled that circumstances did not warrant termination of alimony because Wife was not involved in a relationship with Shepard that was tantamount to marriage. The family court found the oral agreement regarding the termination of alimony was never reduced to writing and was not approved by the court, and therefore was not enforceable. The family court further found Husband's monthly income had dropped from $18,600 to $13,925 while his monthly expenses had increased. Citing this change, the family court reduced Husband's alimony obligation to $2,500 per month. The family court found neither party was entitled to an award of attorney fees. Husband appeals.
STANDARD OF REVIEW
In appeals from the family court, this court may find facts in accordance with its own view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992); Owens v. Owens, 320 S.C. 543, 546, 466 S.E.2d 373, 375 (Ct.App.1996). However, this broad scope of review does not require us to disregard the family court's findings. Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981). Nor do we ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981).
DISCUSSION
I. Wife's Relationship with Shepard
Husband argues the family court erred in failing to terminate alimony based on Wife's relationship with Shepard because the relationship is tantamount to marriage. We disagree.
Changed conditions may warrant a modification or termination of alimony. S.C.Code Ann. § 20-3-170 (1985). "The purpose of alimony is to provide the ex-spouse a substitute *517 for the support which was incident to the former marital relationship." Croom v. Croom, 305 S.C. 158, 160, 406 S.E.2d 381, 382, (Ct.App.1991). Alimony "is not awarded to support a live-in partnership between the supported ex-spouse and a third party." Id. Thus, "[a] rule requiring alimony to continue in these circumstances invidiously discriminates because it penalizes a divorced spouse for remarrying, but rewards one for cohabitating without benefit of marriage." Id. Alimony may therefore be terminated when a supported ex-spouse is involved in a relationship tantamount to marriage. Bryson v. Bryson, 347 S.C. 221, 226, 553 S.E.2d 493, 496 (Ct.App.2001). Living with another, whether it is with a "live-in-lover, a relative, or a platonic housemate," changes the supported exspouse's circumstances and alters the need for financial support. Vance v. Vance, 287 S.C. 615, 618, 340 S.E.2d 554, 555 (Ct.App.1986).
Although Wife's open and notorious illicit relationship with Shepard may be viewed as immoral or at least contrary to generally accepted social mores, the question this court must answer does not concern morality but rather whether the relationship constituted a change of circumstance under the law warranting termination of alimony. We find it did not. In cases where our courts have found a change in circumstances based on a relationship tantamount to marriage, the supported ex-spouse has been involved in a relationship with another in which the parties have economically relied upon one another. See Bryson, 347 S.C. at 225, 553 S.E.2d at 496 (finding relationship was tantamount to marriage and thus constituted a substantial change in circumstance where supported ex-spouse and her live-in companion resided in the same home for twelve years, and purchased a home together); Vance, 287 S.C. at 617-18, 340 S.E.2d at 555 (finding relationship tantamount to marriage where ex-spouse had taken up residence with her companion, the parties had twice moved to accommodate one another's careers, and shared expenses).
Here, it is undisputed Wife and Shepard maintain separate residences. Wife and Shepard maintain separate banking and investment accounts. With the exception of the travel fund, there is no evidence Wife and Shepard have commingled any funds. Furthermore, neither Wife nor Shepard provides financial support to the other. Under these circumstances, we *518 find the family court correctly ruled that Wife's relationship with Shepard was not tantamount to marriage.
II. Oral Modification
Additionally, Husband argues the trial court erred in concluding the parties did not validly agree to terminate Husband's alimony obligation after December 1999. We disagree.
The family court concluded the divorce decree and the parties' initial alimony agreement, which was incorporated in the decree, could not be orally modified by the parties. Husband contends the parties could orally modify the agreement without a written agreement or the family court's approval. The agreement reached between the parties and adopted by the family court in the final divorce decree, however, specifically provided that the agreement and any order approving the agreement "shall not be modified by the parties or any court without written consent of husband and wife."
"Where an agreement is clear and capable of legal construction, the court's only function is to interpret its lawful meaning and the intention of the parties as found within the agreement and give effect to it." Ebert v. Ebert, 320 S.C. 331, 338, 465 S.E.2d 121, 125 (Ct.App.1995). "Unambiguous marital agreements will be enforced according to their terms." Heins v. Heins, 344 S.C. 146, 158, 543 S.E.2d 224, 230 (Ct.App.2001). Here, the agreement unambiguously provided the parties could not modify the agreement without written consent of both parties. However, Husband cites Sanchez v. Tilley, 285 S.C. 449, 452, 330 S.E.2d 319, 320 (Ct.App.1985), for the proposition that a written contract may be orally modified despite a prohibition in the contract against oral modification.
In Sanchez, a party sought to have an oral agreement to reduce child support declared invalid because the parties' original written support agreement provided any modification had to be in writing. Id. Nothing in the Sanchez decision indicates the original support agreement was approved and adopted by the family court. By contrast, the Miles' original support agreement was approved by the family court and made a part of the divorce decree. In essence, Husband is *519 not just seeking to modify the parties' written agreement. Rather, he is trying to modify a written court order by oral agreement of the parties. It is axiomatic that parties cannot modify a court order. Accordingly, the family court properly rejected Husband's reliance on Sanchez and properly concluded that any oral agreement by the parties regarding the termination of alimony was not enforceable.
III. Further Alimony Reduction
In the alternative, Husband argues the family court abused its discretion in failing to grant Husband a greater reduction in his support obligation. We disagree.
Whenever [a spouse] ... has been required to make his or her spouse any periodic payments of alimony and the circumstances of the parties or the financial ability of the spouse making the periodic payments shall have changed since the rendition of such judgment, either party may apply to the court which rendered the judgment for an order and judgment decreasing or increasing the amount of such alimony payments or terminating such payments ....
S.C.Code Ann. § 20-3-170 (1985). To justify modification or termination of an alimony award, the changes in circumstances must be substantial or material. Thornton v. Thornton, 328 S.C. 96, 111, 492 S.E.2d 86, 94 (1997). Many of the same considerations relevant to the initial setting of an alimony award may be applied in the modification context as well, including the parties' standard of living during the marriage, each party's earning capacity, and the supporting spouse's ability to continue to support the other spouse. Kelley v. Kelley, 324 S.C. 481, 486, 477 S.E.2d 727, 729 (Ct.App.1996).
The court carefully reviewed and contrasted the income, expenses and assets of the parties at the time of the divorce in 1995 and at the time of the hearing. In 1995, Husband gross monthly income was $18,100, with monthly expenses of $7,900. In 1999 and 2000, Husband's gross monthly income was less than $14,000 and his monthly expenses had increased to $11,648. In the original agreement incorporated into the court order, it was contemplated that Wife would be unemployed and therefore have no earned income. She has remained unemployed, but the court noted that the testimony of an expert revealed that Wife's estate was valued in 1995 at *520 $594,746, but had increased to the value of $648,624 at the time of the hearing. The court noted Wife showed monthly expenses of $4,310, but specifically found those expenses, included $1,500 per month payments on a bank loan for which there were no records to verify that the payments were made on a monthly basis and that she had the financial resources to fully satisfy that loan. In light of Husband's income and Wife's monthly expenses, we find no error in the family court declining to reduce Husband's alimony obligation by a greater amount.
IV. Attorney's Fees
Lastly, Husband contends the family court abused its discretion in failing to award him attorney fees and costs. We disagree.
The decision whether to award attorney fees is a matter within the family court's sound discretion and will not be overturned absent an abuse of discretion. Stevenson v. Stevenson, 295 S.C. 412, 415, 368 S.E.2d 901, 903 (1988). In determining whether to award attorney fees, the court should consider the parties' ability to pay their own fees, the beneficial results obtained by the attorney, the parties' respective financial conditions, and the effect of the fee on each party's standard of living. E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992).
In the instant case, the family court properly considered the appropriate factors and concluded neither party was entitled to recover attorney fees. Although Husband successfully received a reduction in his alimony obligation, Husband was primarily seeking to terminate his alimony obligation based on either Wife's cohabitation with Shepard or the parties' oral agreement. Husband was not successful on either of these claims. Furthermore, Husband's substantial income is sufficient to enable him to compensate his attorney. We find no error in the family court's refusal to grant attorney fees to either party.
AFFIRMED.
HOWARD, J., and STROM, Acting Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330241/ | 586 S.E.2d 809 (2003)
Roger SIMMONS and wife, Judith Simmons, Plaintiffs,
v.
Emily Simmons ARRIOLA, Defendant.
No. COA02-1344.
Court of Appeals of North Carolina.
October 21, 2003.
Pope, McMillan, Kutteh, Simon & Privette, P.A., by Charles A. Schieck, Statesville, for plaintiffs-appellants.
*810 Homesley, Jones, Gaines & Dudley, by Edmund L. Gaines, Statesville, for defendant-appellee.
MARTIN, Judge.
Plaintiffs, who are defendant-mother's parents and the maternal grandparents of the two minor children involved in this proceeding, brought this action seeking custody of defendant's two minor daughters, Katherine, age 10, and Kristin, age 9, and for child support. Pursuant to a mediated consent order entered 17 July 1998, the district court found that due to a traumatic brain injury suffered by defendant, she was "currently unable, because of her condition and through no fault of her own, to ensure the complete safety and welfare of the children." Accordingly, the court ordered, with defendant's consent, that plaintiffs and defendant would have joint custody of the children, with plaintiffs to have primary physical custody and defendant to have "reasonable and liberal visitation," including physical and telephone access to the children that does not "disrupt the children's school or social activities." The court ordered that plaintiffs consult with defendant regarding all major decisions affecting the children's health, education, and welfare and that defendant make no major decision regarding the children without plaintiffs' concurrence. The order further provided:
7. LONG-RANGE GOAL: It is the long-range goal to return the children to full participation in their lives with the Mother, and for the Mother to have full participation in the children's lives.
8. REGULAR REVIEW: This agreement shall be reviewed regularly, at a minimum, annually, to ensure that the Mother gains more rather than less participation in the children's lives as the years pass. Any of the parties may request a review by the Court if the goal is not being met, or if any other question arises under this agreement.
On 13 April 1999, plaintiffs filed a motion seeking review of the custody arrangement and alleging the parties had reached an impasse regarding custody and visitation. On 28 May 1999, the court entered a consent order in which the parties agreed to the appointment of an independent expert to conduct a custody evaluation to assist the court. Following a surfeit of motions, counter-motions, and responses filed by the parties, extending over approximately fifty-five pages of the record before this Court, the matter was heard on 8, 9 and 10 February 2000 and on 30 June 2000. On 25 August 2000, the district court entered an order in which it concluded, inter alia, that there had been no substantial change in circumstances affecting the welfare of the children sufficient to justify modification of the mediated consent order and that it was in the best interests of the minor children that primary physical custody should remain with the plaintiffs. The court granted visitation to defendant from 20 July 2000 until the beginning of school in the fall of 2000, and thereafter on alternating weekends and for three-quarters of all holidays from school. All other provisions of the mediated consent order, including the provision requiring periodic reviews, were left in effect.
Defendant filed additional motions seeking a change of custody which were denied by orders dated 12 March 2001 and 5 July 2002. In the latter order, the court specifically concluded that it was reviewing the 17 July 1998 mediated consent order. The court found that defendant's present husband had exhibited serious anger management problems, had directed profanity at the minor children, had engaged in other conduct which had placed the minor children in fear, and that the environment at defendant's residence was not suitable as a primary residence. Citing Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997), the court concluded that the 17 July 1998 consent order was temporary in nature and thus, the defendant had a constitutionally protected status as the children's natural parent. However, requiring the children to remain in her residence exposed to domestic violence constituted conduct inconsistent with that status. Accordingly, the court applied a "best interests of the children" standard to its review of the consent order rather than a presumption of custody with the natural parent or "a substantial change in circumstances affecting the welfare of the children" standard. Notwithstanding, the court concluded both that there had been no substantial change in circumstances affecting the welfare of the minor *811 children and that it was in the best interests of the children to remain in the primary physical custody of plaintiffs. The provisions of the prior order requiring periodic review were left in effect; however, the prohibition against defendant transporting the children in her car was eliminated and defendant was granted additional visitation for the summer of 2002, with any visitations missed by defendant during the summer of 2002 as a result of the children's school or church functions to be made up on a "day-for-day" basis during the school year. Both plaintiffs and defendant gave notice of appeal from the 5 July 2002 order.
I.
In their appeal, plaintiffs contend the district court erred by specifying visitation provisions that were not contained in the initial custody order entered on 17 July 1998 and by modifying other provisions of the mediated consent order without applying the "substantial change in circumstances" standard and without finding such a change in circumstances. See N.C. Gen.Stat. § 50-13.7(a)(2001) (child custody orders may not be modified without a showing of changed circumstances by either party). After careful consideration, we reject their argument.
The same standards that apply to changes in custody determinations are also applied to changes in visitation determinations. See Clark v. Clark, 294 N.C. 554, 575-76, 243 S.E.2d 129, 142 (1978) (holding that "visitation privileges are but a lessor degree of custody"); Lamond v. Mahoney, ___ N.C.App. ___, ___, 583 S.E.2d 656, 658 (2003). If a child custody or visitation order is considered final or permanent, the court may not make any modifications to that order without first determining that there has been a "substantial change in circumstances" in the case. LaValley v. LaValley, 151 N.C.App. 290, 292, 564 S.E.2d 913, 914-15 (2002). However, if a child custody or visitation order is considered temporary, the applicable standard of review for proposed modifications is "best interest of the child," not "substantial change in circumstances." Id.
An order is considered temporary only if it either (1) states a "clear and specific reconvening time" that is reasonably close in proximity to the date of the order; or (2) does not determine all the issues pertinent to the custody or visitation determination. Brewer v. Brewer, 139 N.C.App. 222, 228, 533 S.E.2d 541, 546 (2000). A trial court's mere designation of an order as "temporary" is not determinative. Id. In this case, the initial 1998 consent order provided that due to the defendant-mother's traumatic brain injury, the "reasonable and liberal" visitation granted defendant was to be "monitored and reviewed on a regular basis to ensure that the Mother gains more rather than less participation in the children's lives as the years pass." The order set forth that such reviews shall be conducted "regularly, and at a minimum, annually." The initial order also made no determination as to how "reasonable and liberal visitation" should be interpreted or carried out.
In Brewington v. Serrato, this Court ruled that a provision in a child custody order permitting visitation "at such times as the parties may agree" could not be sustained. 77 N.C.App. 726, 733, 336 S.E.2d 444, 449 (1985). The Court held that a trial court is obligated to include in all final visitation orders a provision specifying actual visitation periods. Id. The initial order in the present case does not specify visitation periods and, therefore, is incomplete and cannot be considered final. The language providing for regular review coupled with the court's failure to completely determine the issue of visitation periods for defendant persuades us that the 17 July 1998 order was a temporary order.
Our holding that the 17 July 1998 order was a temporary order should not be interpreted as approval of the use of temporary orders that are indefinite in nature or are effective for unreasonably long periods of time, absent a compelling reason. It is the public policy of this State that in all cases where it is practicable, child custody orders should be entered as permanent or final so as to avoid the "turmoil and insecurity" that children face from constant litigation of their custody status. See Pulliam v. Smith, 348 N.C. 616, 620, 501 S.E.2d 898, 900 (1998); Brewer, 139 N.C.App. at 228, 533 S.E.2d at 546 (order that set a reconvening date more *812 than a year after its issuance was permanent where there were no unresolved issues). However, the circumstances of this case, in which defendant is recovering from a traumatic brain injury that was anticipated to improve over time, provide such a compelling reason. Defendant's injury and inability to care for her children is recited as the sole reason for her relinquishment of custody in the 17 July 1998 order. While this case falls at the outer boundaries of sustainable temporary orders, the periodic reviews of defendant's medical condition and the subsequent setting of specific visitation periods were necessary to ensure that her status as a "full legal parent" was preserved. Under such circumstances, the extended nature of the temporary order was appropriate. Therefore, we hold the district court did not err in applying the "best interests of the child" standard, instead of the "substantial change in circumstances" standard, and in modifying the provisions of the 17 July 1998 order.
II.
Defendant also gave notice of appeal from the 5 July 2002 order, contending the trial court erred in ruling that her conduct was inconsistent with her constitutionally protected status as a natural parent. Plaintiffs have moved to dismiss her appeal for failure to comply with Rule 13(a) of the North Carolina Rules of Appellate Procedure, which requires that an appellant file and serve an appellant's brief within thirty days after the printed record on appeal has been mailed to the parties by the clerk of the appellate court to which the appeal has been taken. N.C. R.App. P. 13(a).
In the present case, the printed record was mailed to the parties by the clerk of this Court on 30 October 2002. Plaintiffs-appellants' brief was timely filed on 29 November 2002, the date upon which it was mailed to the clerk and to defendant's counsel, as evidenced by the certificate of service, and it was received by the clerk on 2 December 2002. See N.C. R.App. P. 26(a)(1). No appellant's brief was filed by defendant. On 20 December 2002, defendant moved for an extension of time to file her appellee's brief, which motion was granted and she was allowed to file the appellee's brief on or before 28 January 2003. On 27 January 2003, a document entitled "Defendant Appellant's Brief was filed by mail with the clerk and plaintiffs' counsel, and was received by the clerk on 28 January 2003. The document contained two arguments in response to those contained in the plaintiffs-appellants' brief, and one argument in support of the three assignments of error asserted by defendant in the record on appeal.
Although defendant's arguments, as appellee, in response to the assignments of error asserted by plaintiffs in their appeal were timely filed, her argument in support of the assignments of error asserted by her as an appellant are not timely presented in the brief which she filed on 27 January 2003. Her brief as an appellant was due thirty days after the record on appeal was mailed by the clerk; she has sought no extension of time to file her appellant's brief. Plaintiffs' motion, made as appellees, to dismiss defendant's appeal is therefore allowed. N.C. R.App. P. 13(c).
Plaintiffs' appeal:
Affirmed.
Defendant's appeal:
Dismissed.
Judges BRYANT and GEER, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262720/ | 84 Cal.Rptr.2d 1 (1999)
71 Cal.App.4th 956
The PEOPLE, Plaintiff and Respondent,
v.
Antonio CHICANTI, Defendant and Appellant.
No. B119988.
Court of Appeal, Second District, Division Five.
April 28, 1999.
John H. Hobson, Santa Monica, for Defendant and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Arthur H. Auerbach, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
KRIEGLER, J.[**]
I. INTRODUCTION
Defendant Antonio Chicanti was convicted by jury in counts 1 and 2 of robbery, in violation of Penal Code section 211, and in count 3 of felony evading an officer, in violation of Vehicle Code section 2800.2, subdivision (a). The jury found that a principal in the commission of the robberies in counts 1 and 2 was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1). The court sentenced defendant to the high term of five years in count 1, plus a one-year enhancement for the principal armed with a firearm allegation. Consecutive *2 sentences were imposed in count 2 for one year, and in count 3 for eight months, resulting in a total sentence of seven years, eight months in prison.
Defendant raises two issues on appeal. First, he contends the evidence is insufficient to support the conviction in count 3 for felony evading an officer because the police car in pursuit was not distinctively marked as required by Vehicle Code section 2800.2, subdivision (a). Second, defendant contends the consecutive sentences in counts 2 and 3 were imposed in violation of the California Rules of Court.
II. FACTS
A. Prosecution Evidence
Jewelry salesmen Vora Paresh and Ileshkumar Joshi were returning in Joshi's car to their business in Los Angeles from Fullerton on September 5, 1997. As they reached the 4th Street exit to the 101 freeway a white car containing five or six male Hispanics cut them off, forcing Joshi's car toa stop. Joshi tried to back up, but was unable to do so because a red car containing a male and female Hispanic pulled in behind him.
Five or six of the occupants of the cars approached Paresh and Joshi, who were in their car with the doors locked and the windows up. The windows to both the driver's and passenger's sides were broken. With guns pointed at their heads, Paresh and Joshi were robbed of diamonds they each kept in pouches in their waistbands.
Los Angeles Police Officer Clifford Humphris was working in the area above the freeway exit at 4th Street. He heard yelling from the freeway, and observed, the two cars blocking the jewelers' car. After witnessing the robberies, Humphris saw both of the assailants' cars drive away on 4th Street. He and his partner began following a red Nissan, which had been blocking the victims' vehicle from behind. The red Nissan contained two occupants, defendant and a female Hispanic.
A chase ensued, with travel going through downtown Los Angeles. Defendant drove through two or three red lights, traveled at speeds of 50 to 60 miles per hour and passed cars on the left in the center divider. The Nissan had paper over the rear license plate, preventing Officer Humphris from reading the license number. Officer Humphris saw the Nissan almost cause a traffic accident while negotiating a dangerous left turn. Officer Humphris and his partner were in a brown, dual-purpose police car, an unmarked car with a red light in front facing forward and equipped with a siren. The red light and siren were activated during the pursuit.
Due to the traffic and pedestrians on the streets, Officer Humphris and his partner dropped back and allowed the police helicopter take over the chase. The police helicopter had its siren on during the pursuit. The red Nissan eventually stopped and defendant and the female Hispanic exited. Defendant and the female were taken into custody shortly thereafter.[1]
B. Defense Evidence
Defendant was driving home on the 5 freeway near the 4th Street exit when he came upon an accident on the off-ramp. A car in front of defendant backed up into defendant's car. People from one of the cars in the accident exited the vehicle, and defendant thought there was going to be a fight. Defendant drove off with the other cars still at the scene of the accident.
Defendant was driving on 4th Street when he realized he was being followed by the police. Defendant thought the police were following him because, of the accident. Defendant did not stop because he had unpaid tickets and warrants. He also did not have a license or insurance. Defendant drove for about five minutes before stopping and being arrested. Defendant gave the police a false name and address, and told the police he fled because he thought he had run a red light and the car was not his. He later told the police about the accident on the off-ramp.
*3 III. DISCUSSION
A. Substantial Evidence Supports Defendant's Conviction for Felony Evading an Officer Under Vehicle Code Section 2800.2
Defendant's first contention is that there was insufficient evidence to support his conviction in count 3 for felony evading an officer because the police vehicle giving chase was not "distinctively marked." The police car in question was a brown, dual-purpose vehicle equipped with a siren and a red light mounted on the windshield pointing forward. We conclude substantial evidence supports the jury's finding under the facts in this case.
Vehicle Code section 2800.2 elevates a misdemeanor violation of evading an officer under Vehicle Code section 2800.1 to a felony if the vehicle is "driven in a willful or wanton disregard for the safety of persons or property." By its terms, Vehicle Code section 2800.2 incorporates the following elements of Vehicle Code section 2800.1 into the felony statute:
"(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor if all of the following conditions exist:
"(1) The peace officer's motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp.
"(2) The peace officer's motor vehicle is sounding a siren as may be reasonably necessary.
"(3) The peace officer's motor vehicle is distinctively marked.
"(4) The peace officer's motor vehicle is operated by a peace officer ... and that peace officer is wearing a distinctive uniform."
The only issue in dispute in the instant appeal is the requirement that the vehicle be "distinctively marked." In People v. Estrella (1995) 31 Cal.App.4th 716, 722, 37 Cal. Rptr.2d 383, the court held that "[w]hile initial reaction to the term `distinctively marked' may be to construe a requirement of insignia or logo, we note the absence of an express requirement of the same in [Vehicle Code] section 2800.1, thereby lending credence to a liberal (and less literal) interpretation of the term." (See also People v. Mathews (1998) 64 Cal.App.4th 485, 489, 75 Cal. Rptr.2d 289.) In dicta, the court stated that a red light and siren, alone, are insufficient to distinctively mark a police vehicle for purposes of Vehicle Code section 2800.2. (People v. Estrella, supra, 31 Cal.App.4th at pp. 722-723, 37 Cal.Rptr.2d 383.) "Accordingly, we adopt a commonsense approach to this question, one which looks at the indicia identified with the pursuit vehicle which are supplemental to a red light and siren, to ascertain whether a person fleeing is on reasonable notice that pursuit is by a peace officer. Stated somewhat differently, under [Vehicle Code] section 2800.1, does the person know or reasonably should know that a police vehicle is in pursuit?" (Id. at p. 723, 37 Cal.Rptr.2d 383.)
In Estrella, an officer was in a 1983 Buick with "nothing distinctive about it to identify it as a police vehicle." It had a light bar inside the windshield on the passenger side. The light bar was eighteen inches long and four or five inches from top to bottom. It had a steady red light in the middle, a flashing blue light on one side, and a flashing red light on the other. The siren was not visible from the outside. It had alternating headlights (called "wigwag" lights) and warning lights to the rear. (People v. Estrella, supra, 31 Cal.App.4th at pp. 719-720, 37 Cal.Rptr.2d 383.) In concluding the vehicle was distinctively marked, the court held: "However, although we agree that a red light and siren alone do not distinctively mark a police vehicle, we conclude that under the circumstances presented here, the additional `devices' [citation] consisting of wigwag lights and the flashing blue and clear lights adequately identified [the officer's] vehicle as a police vehicle. We find it incredible to believe or even seriously argue that a reasonable person, upon seeing a vehicle in pursuit with flashing red and blue lights, wigwag headlights and hearing a siren, would have any doubt that said pursuit vehicle was a *4 police vehicle." (Id. at p. 723, 37 Cal.Rptr.2d 383, fn. omitted.)
The other case to consider the issue of what constitutes a distinctively marked vehicle is Mathews. In Mathews, the police drove an unmarked vehicle equipped with a siren, a red light mounted on the front dashboard and headlights that flashed in an alternating "wigwag" fashion. (People v. Mathews, supra, 64 Cal.App.4th at p. 487, 75 Cal.Rptr.2d 289.) After agreeing with Estrella that there is no requirement that any logo or insignia be on the vehicle, the court upheld the conviction, adopting the "commonsense approach of Estrella," while concluding that "red lights, siren, and wigwag headlights were sufficiently distinctive markings to inform any reasonable person he was being pursued by a law enforcement vehicle." (Id. at pp. 489-90, 75 Cal.Rptr.2d 289.)
The issue presented here requires that we either follow the dicta in Estrella that a red light and siren are insufficient to distinctively mark a police vehicle, or extend Mathews to a case where there are no wigwag headlights, only the red lamp and siren. We respectfully decline to follow the dicta in Estrella, and instead conclude the appropriate test is whether there is substantial evidence in the record from which a reasonable trier of fact could conclude the red light and siren were sufficient "distinctive markings to inform any reasonable person he was being pursued by a law enforcement vehicle." (People v. Mathews, supra, 64 Cal.App.4th at p. 490, 75 Cal.Rptr.2d 289.)
In construing Vehicle Code sections 2800.1 and 2800.2, the court in Estrella was concerned that an interpretation of the statutes allowing for conviction upon a finding a police vehicle was distinctively marked based on the presence of a red light and siren would render the requirement that the vehicle be "distinctively marked" mere surplusage. "Therefore, to construe `distinctively marked' to mean simply exhibiting a red light and sounding a siren would result in [Vehicle Code] section 2800.1, subdivision (e) (requiring the vehicle to be `distinctively marked') being considered as mere surplusage." (People v. Estrella, supra, 31 Cal.App.4th at p. 723, 37 Cal.Rptr.2d 383.)
We respectfully disagree with the Estrella concern that the "distinctively marked" requirement would be rendered "mere surplusage" if the red lamp and siren could be used as the basis for a finding the vehicle was distinctively marked. The requirements are separate elements, and a reasonable trier of fact which found the red lamp was lighted and siren was on may or may not also conclude under the circumstances of a particular case that the red lamp and siren satisfy the distinctive marking element.
We are unwilling to conclude, as a matter of law, that a lighted red lamp and sounded siren on an unmarked police car can never constitute substantial evidence of a symbol or device that distinctively marks it as a police vehicle. In our opinion, the appropriate approach is to apply the traditional substantial evidence test where the sufficiency of the evidence is challenged on appeal, rather than ruling as a matter of law that a particular set of facts can never constitute substantial evidence. (See People v. Cuevas (1995) 12 Cal.4th 252, 48 Cal.Rptr.2d 135, 906 P.2d 1290 [adopting the substantial evidence rule in assessing the sufficiency of an out-of-court identification to uphold a conviction, overruling the holding of People v. Gould (1960) 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865].) Depending on the totality of circumstances, there is no reason to conclude, as a matter of law, that a lighted red lamp and siren reasonably sounded cannot serve to identify an unmarked car as a distinctively marked police vehicle.
Under the substantial evidence rule, a judgment must be supported by substantial evidence in light of the whole record. (People v. Jones (1990) 51 Cal.3d 294, 313, 270 Cal.Rptr. 611, 792 P.2d 643; People v. Johnson (1980) 26 Cal.3d 557, 577-578, 162 Cal. Rptr. 431, 606 P.2d 738.) The "whole record" includes "`the entire picture of the defendant put before the jury.'" (People v. Johnson, supra, 26 Cal.3d at p. 577, 162 Cal.Rptr. 431, 606 P.2d 738,) A review of the whole record in the instant case reveals the necessary substantial evidence to support the judgment.
The record reflects that Officer Humphris saw the robberies take place, as well as the *5 vehicles involved. He and his partner followed the car driven by defendant. The officers' car was unmarked, but did display the lighted red lamp and sounded its siren. The red lamp and siren are features which a reasonable trier of fact could conclude are not routinely present on civilian vehicles, and which distinctly mark the car as a police vehicle. Indeed, it would be highly unusual for a civilian car to have these features. Any doubt that the police vehicle was sufficiently marked to allow a reasonable person to identify it as a law enforcement vehicle is answered in defendant's own testimony.[2] Defendant testified he knew the police were following him and he didn't stop because he had outstanding tickets and warrants. Clearly there was something sufficiently distinctive in the devices of the police vehicle which allowed defendant to conclude he was being chased by the police, rather than by rogue civilians. The jury's conclusion was certainly as reasonable as the conclusion reached by defendant.
We do not suggest the jury was required in this case to find the police vehicle was distinctively marked. Instead, we return to the Estrella phrasing of the ultimate question: "Stated somewhat differently, under [Vehicle Code] section 2800.1, does the person know or reasonably should know that a police vehicle is in pursuit?" (People v. Estrella, supra, 31 Cal.App.4th at p. 723, 37 Cal.Rptr.2d 383.) Under the substantial evidence rule, the answer to the Estrella question in the instant case is "yes."
B. Consecutive Sentences were Properly Imposed in Counts 2 and 3[***]
IV. DISPOSITION
The judgment is affirmed.
TURNER, P.J., and GRIGNON, 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 III.B of the Discussion.
[**] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] Although both Officer Humphris and the police helicopter observer testified defendant was in possession of a gun during the robberies and while defendant fled on foot, no gun was recovered and the jury was unable to reach unanimous verdicts on allegations defendant personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a).
[2] In People v. Johnson, supra, 26 Cal.3d at page 579, 162 Cal.Rptr. 431, 606 P.2d 738, our Supreme Court found the defendant's trial testimony to be corroborative of the prosecution case in upholding the sufficiency of the evidence on appeal.
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262729/ | 84 Cal.Rptr.2d 76 (1999)
71 Cal.App.4th 646
Donald ERICKSON, Plaintiff and Respondent,
v.
AETNA HEALTH PLANS OF CALIFORNIA, INC., Defendant and Appellant.
No. E021505.
Court of Appeal, Fourth District, Division Two.
April 21, 1999.
*78 Epstein, Becker & Green, William A. Helvestine, Michael T. Horan, San Francisco, and Kevin M. Corbett, San Leandro, for Defendant and Appellant.
Law Offices of Leibovic & Tysch and Gary L. Tysch, Sherman Oaks, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
OPINION
RICHLI, J.
Aetna Health Plans of California, Inc., appeals from the denial of its motion to compel arbitration of claims arising from its alleged failure to provide timely cancer treatment to Donald Erickson under Aetna's Medicare coverage plan. We conclude that: (1) although Aetna's arbitration provision failed to comply with Health and Safety Code section 1363.1, that statute is preempted by the Federal Arbitration Act; and (2) the arbitration provision is not otherwise invalid under general principles of law. Accordingly, we reverse.
I
FACTUAL AND PROCEDURAL BACKGROUND
Aetna is a federally qualified health maintenance organization. Pursuant to an agreement with the federal Health Care Financing Administration, Aetna offered replacement Medicare coverage to eligible individuals under a plan called Senior Choice. Mr. Erickson enrolled in Senior Choice in about April 1993.
Among other things, the Senior Choice handbook[1] set forth the options available to plan members in the event of a dispute. After explaining the procedure for filing a grievance, the handbook stated: "If you are not satisfied with the [grievance panel's] proposed resolution, you may request binding arbitration. [¶] If You Want To Have Binding Arbitration [¶] Any differences between you and the Health Plan (other than those subject to the Medicare Appeals Procedure) are subject to binding arbitration."
According to his complaint, Mr. Erickson was found to have prostate cancer in 1995. His physician recommended proton beam therapy, and Aetna represented the procedure would be covered. Later, however, Aetna took the position the therapy was not covered. Although Aetna eventually agreed to cover the therapy, the delay increased the risk Mr. Erickson's cancer would metastasize and threaten his life.
Mr. Erickson brought this action in June 1996, alleging that Aetna's conduct breached its agreement with Mr. Erickson and the covenant of good faith contained in that agreement, and also constituted negligence, negligent misrepresentation, infliction of emotional distress, and fraud. Aetna moved to compel arbitration based on the provision in the Senior Choice handbook quoted above. The court denied the motion, ruling that (1) the arbitration clause was not sufficiently clear and unequivocal to be valid under California law, and (2) the clause failed to comply with the disclosure requirements of Health and Safety Code section 1363.1.
II
DISCUSSION
A. FAA Preemption of Health and Safety Code Section 1363.1
1. Section 1363.1
Health and Safety Code Section 1363.1 (section 1363.1) provides that a binding arbitration clause in a health care service plan must incorporate various disclosures, including a clear statement of "whether the subscriber or enrollee is waiving his or her right to a jury trial...." The waiver language must be substantially in the wording provided in Code of Civil Procedure section 1295, *79 subdivision (a),[2] and must appear immediately before the signature line for the individual enrolling in the plan. (§ 1363.1, subd. (c), (d).)
It is undisputed Aetna's arbitration clause did not comply with these requirements. Accordingly, if section 1363.1 applies, the clause is invalid.[3]
2. The FAA
The Federal Arbitration Act (FAA), Title 9 U.S.C. section 1 et seq., applies to any "contract evidencing a transaction involving commerce" which contains an arbitration clause. (9 U.S.C. § 2.) Section 2 of the FAA (section 2) provides that arbitration provisions "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." (9 U.S.C. § 2.) State courts may, without violating section 2, decline to enforce arbitration clauses on the basis of "generally applicable contract defenses, such as fraud, duress or unconscionability." However, they may not do so on the basis of "state laws applicable only to arbitration provisions." (Doctor's Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 687 [116 S.Ct. 1652, 1656, 134 L.Ed.2d 902].)
3. Preservation of Preemption Issue in Lower Court[**]
4. Interstate Commerce
"Commerce" for purposes of FAA coverage "is to be broadly construed so as to be coextensive with congressional power to regulate under the Commerce Clause." (Foster v. Turley (10th Cir.1986) 808 F.2d 38, 40; accord, Willis v. Dean Witter Reynolds, Inc. (6th Cir.1991) 948 F.2d 305, 310.) In an analogous context, it has been held that a health care provider's treatment of Medicare patients, receipt of reimbursement from Medicare, and purchase of out-of-state medicines and supplies constitutes being engaged in interstate commerce for purposes of the Sherman Act. (See, e.g., Summit Health, Ltd. v. Pinhas (1991) 500 U.S. 322, 329, 111 S.Ct. 1842, 1847, 114 L.Ed.2d 366; BCB Anesthesia Care, Ltd. v. Passavant Memorial Area Hospital Assn. (7th Cir.1994) 36 F.3d 664, 666; Brown v. Our Lady of Lourdes Medical Center (D.N.J.1991) 767 F.Supp. 618, 626.)
Here, as stated, the Senior Choice plan replaces Medicare coverage and operates pursuant to a contract with the federal government. Coverage is available only to Medicare patients; the patients pay for coverage through Social Security deductions or payments to Medicare. Additionally, according to Aetna's Medicare compliance manager, Aetna, in performing its Medicare contract, enters into interstate contracts with vendors and service providers operating on a national basis.
None of this evidence was disputed, nor does the record suggest any credibility issues or other factual conflicts which the court had to resolve in ruling that the Senior Choice plan did not involve interstate commerce. Reviewing the ruling independently as a question of law (see Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799, 35 Cal.Rptr.2d 418, 883 P.2d 960), we therefore conclude the plan involves interstate commerce and is subject to the preemption provision of the FAA. The remaining question is whether section 1363.1 is inconsistent with that provision.
5. Preemption of Section 1868.1
In Doctor's Associates, Inc. v. Casarotto, supra, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902, the United States Supreme Court held the FAA preempted a Montana *80 statute which required that an arbitration clause be typed in underlined capital letters on the first page of a contract in order to be enforceable. The court stated section 2 of the FAA precludes states from "singling out arbitration provisions for suspect status." It concluded the Montana law directly conflicted with section 2 by conditioning the enforceability of arbitration agreements "on compliance with a special notice requirement not applicable to contracts generally." (Doctor's Associates, Inc., supra, at p. 687, 116 S.Ct. 1652.)
Section 1363.1 similarly imposes on arbitration clauses in health care plans "a special notice requirement not applicable to contracts generally." Health care arbitration clauses must satisfy special requirements as to form and content which are not imposed on contracts generally, nor even on health care contracts generally unless they contain arbitration clauses. Section 1363.1 thus "`takes its meaning precisely from the fact that a contract to arbitrate is at issue and, consequently, conflicts with section 2 of the FAA. (Doctor's Associates, Inc. v. Casarotto, supra, 517 U.S. 681, 685, 116 S.Ct. 1652, 134 L.Ed.2d 902.) Section 1363.1 therefore is preempted as applied to the Senior Choice plan arbitration clause, and the lower court's refusal to enforce the clause can be upheld, if at all, only on the basis of generally applicable California law.
B. Validity of Arbitration Clause Under General Principles of Law
Mr. Erickson offers three generally applicable legal principles in support of the lower court's refusal to enforce the arbitration clause: first, that the Senior Choice plan is a contract of adhesion and the clause therefore cannot be enforced absent a showing that the plan member has been made aware of its existence and implications; second, that the language of the clause is too misleading to be valid even under the standards for nonadhesion contracts; and, third, that Mr. Erickson's mistaken interpretation of the clause prevented mutual assent, so that no agreement to arbitrate was formed. We discuss each contention in order.
1. Contract of Adhesion
Although normally a party to a contract is bound by its provisions whether or not he or she is aware of them, courts will not enforce provisions in adhesion contracts which favor the stronger party unless they are conspicuous, clear, and not inconsistent with the parties' reasonable expectations. (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710, 131 Cal.Rptr. 882, 552 P.2d 1178.) We reject Mr. Erickson's argument that the Senior Choice arbitration clause should be governed by these principles, for several reasons.
First, Mr. Erickson did not make the adhesion argument in the lower court, and, as he recognizes, the court did not rule on the issue. Although an appellate court can affirm a ruling on a ground not adopted by the trial court, it should not do so where the alternative ground presents fact issues which the opposing party and trial court did not have an opportunity to address. (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 974, 219 Cal.Rptr. 381; In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1227, 30 Cal.Rptr.2d 893.)
"Whether a contract is one of adhesion generally would present a mixed question of law and fact." (Woodard v. Southern Cal. Permanente Medical Group (1985) 171 Cal. App.3d 656, 667, 217 Cal.Rptr. 514.) To make that determination, a court would have to consider the conditions under which the contract was negotiated and executed, including an assessment of the parties' relative bargaining power. (See, e.g., Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 985, 64 Cal.Rptr.2d 843, 938 P.2d 903.) Such questions are better resolved by the trial court in the first instance.
Second, there is nothing in the present record to support the assertion that the Senior Choice plan is a contract of adhesion. In fact, the record supports the opposite conclusion. In Madden v. Kaiser Foundation Hospitals, supra, 17 Cal.3d 699, 131 Cal.Rptr. 882, 552 P.2d 1178, the Supreme Court held that an arbitration clause in a group medical services contract negotiated by a state agency on behalf of public employees *81 was not unenforceable under adhesion prinicples. The court noted the agency had considerable bargaining strength, employees were free to opt out of the plan, and the clause did not inherently favor the plan over the employees, as both sides stood to benefit from the speed and economy of arbitration. (Id. at pp. 711-712, 131 Cal.Rptr. 882, 552 P.2d 1178.)[5]
Here, similarly, the Senior Choice plan is provided pursuant to an agreement negotiated between Aetna and an agency of the federal government, an entity which presumably had bargaining power comparable or superior to Aetna's. Medicare subscribers are not required to participate in the plan, and the arbitration clause does not inherently favor Aetna, but "merely substitutes one forum for another." (Madden v. Kaiser Foundation Hospitals, supra, 17 Cal.3d 699, 711, 131 Cal.Rptr. 882, 552 P.2d 1178.) The case is thus wholly unlike Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 133 Cal. Rptr. 775, 84 A.L.R.3d 343, on which Mr. Erickson relies. In Wheeler, this court held a patient was not bound by an arbitration clause contained in a hospital's standard printed "Conditions of Admission" form. (Id. at p. 357, 133 Cal.Rptr. 775.) We stated, "A patient like Mr. Wheeler realistically has no choice but to seek admission to the hospital to which he has been directed by his physician and to sign the printed forms necessary to gain admission." (Id., at p. 366, 133 Cal.Rptr. 775.) We also noted that "... unlike the situation in Madden, Mr. Wheeler was not represented by a state agency which could neutralize the advantage in bargaining power enjoyed by the defendant hospital." (Ibid)
Finally, it has repeatedly been stated that "... state adhesion contract principles are inapplicable to the enforcement of arbitration clauses in an agreement governed by the Federal Arbitration Act...." (Chan v. Drexel Burnham Lambert, Inc. (1986) 178 Cal.App.3d 632, 637, 223 Cal.Rptr. 838; accord, Tonetti v. Shirley (1985) 173 Cal. App.3d 1144, 1148, 219 Cal.Rptr. 616.) Since we have concluded the Senior Choice plan is governed by the FAA, the validity of the arbitration clause must be determined by reference to the principles applicable to contracts generally rather than the special rules applicable to adhesion contracts. We turn now to that determination.
2. Interpretation of Contract Language
Mr. Erickson next argues that even under the standards for nonadhesion contracts, the language of the arbitration clause is too misleading to be, valid. He focuses on the portions of the clause which inform the plan member that he or she "may request binding arbitration," and set forth the procedure to be followed "If You Want To Have Binding Arbitration." (Italics added.) According to Mr. Erickson, this permissive language conveys the impression arbitration is optional with the plan member rather than the only method available for resolution of disputes. Aetna, on the other hand, argues that, because the clause plainly states any disputes are "subject to binding arbitration," the earlier statement that a member "may" request arbitration, and the directions as to how to proceed if he or she should "want" arbitration, merely reflect the fact the member may opt not to proceed with arbitration if he or she is satisfied with the grievance outcome, not that he or she may forgo arbitration and proceed to court.
a. Principles of Construction
We first must determine the applicable principles of construction. California courts recognize that the FAA reflects "`a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.'" (Spellman v. Securities, Annuities & Ins. Services, Inc. (1992) 8 Cal.App.4th 452, 458, 10 Cal.Rptr.2d 427, quoting Moses H. Cone Hospital v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765; done v. Foresters Equity Services, Inc. *82 (1997) 58 Cal.App.4th 625, 633, 68 Cal. Rptr.2d 167.) Mr. Erickson notes, however, that "[t]he question of whether the parties agreed to arbitrate is answered by applying state contract law even when it is alleged that the agreement is covered by the FAA." (Cheng-Canindin v. Renaissance Hotel Associates (1996) 50 Cal.App.4th 676, 683, 57 Cal.Rptr.2d 867.) He characterizes the question whether the Senior Choice handbook provides for mandatory or only optional arbitration as a question of "whether the parties agreed to arbitrate." Therefore, he argues, the FAA policy favoring arbitration does not come into play in addressing that question.
We do not agree. First, "California law incorporates many of the basic policy objectives contained in the FAA, including a presumption in favor of arbitrability...." (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 357, 72 Cal. Rptr.2d 598.) Thus, even in non-FAA cases, courts "`are guided by the rule that, contractual arbitration being a favored method of resolving disputes, every intendment will be indulged to give effect to such proceedings.' [Citation.]" (Titan Group, Inc. v. Sonoma Valley Sanitation Dist. (1985) 164 Cal. App.3d 1122, 1127, 211 Cal.Rptr. 62.) Additionally, where a transaction falls under the FAA, even the threshold decision of whether there is an agreement to arbitrate "must be made ` "with a healthy regard for the federal policy favoring arbitration."' [Citation.]" (The Energy Group, Inc. v. Liddington (1987) 192 Cal.App.3d 1520, 1528, 238 Cal. Rptr. 202; accord, Banner Entertainment, Inc. v. Superior Court, supra; City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 407, 60 Cal.Rptr.2d 488.)
Moreover, Cheng-Canindin v. Renaissance Hotel Associates, supra, 50 Cal. App.4th 676, 57 Cal.Rptr.2d 867, and the cases on which it relied, involved true "threshold" issues of contract formation, which went to the very existence of an agreement to arbitrate, e.g., whether the procedure to which the parties agreed actually constituted arbitration (Cheng-Canindin, supra, at p. 684, 57 Cal.Rptr.2d 867; Wasyl, Inc. v. First Boston Corp. (9th Cir.1987) 813 F.2d 1579, 1581-1582); whether the parties intended to incorporate by reference an arbitration provision contained in a separate document (Chan v. Drexel Burnham Lambert, Inc., supra, 178 Cal.App.3d at p. 640, 223 Cal.Rptr. 838; Progressive Cos. Ins. Co. v. C.A. Reaseguradora Nacional (2d Cir.1993) 991 F.2d 42, 45-46; Cook Chocolate Co. v. Salomon, Inc. (S.D.N.Y.1988) 684 F.Supp. 1177, 1182); or whether a nonparty to the arbitration agreement could enforce the arbitration clause (Ziegler v. Whale Securities, Co., L.P. (N.D.Ind.1992) 786 F.Supp. 739, 741-742). In this case, in contrast, there is no dispute that the parties had a valid agreement which contained a clause providing for arbitration of disputes. The only question concerns the proper construction of that clause, i.e., whether it requires arbitration or merely makes it available at the option of the plan member.
Issues concerning "the construction of the contract language itself are subject to the FAA. (Moses H. Cone Hospital v. Mercury Constr. Corp., supra, 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765.) Under section 2 of the FAA, a court may not construe an arbitration agreement "in a manner different from that in which it otherwise construes nonarbitration agreements under state law." (Perry v. Thomas (1987) 482 U.S. 483, 492-493, fn. 9, 107 S.Ct. 2520, 2527, 96 L.Ed.2d 426.) Thus, a court cannot apply a state law requirement that an arbitration clause be "express" or "unequivocal" if state law requires that nonarbitration agreements be proven only by a mere preponderance of the evidence. (Progressive Cos. Ins. Co. v. C.A. Reaseguradora Nacional, supra, 991 F.2d 42, 46; Huntington Intern. Corp. v. Armstrong World Industries Inc. (E.D.N.Y. 1997) 981 F.Supp. 134, 138.) Similarly, where an FAA contract is involved, "... ambiguities in an arbitration clause are to be resolved in favor of arbitration, notwithstanding the California rule that a contract is construed most strongly against the drafter...." (Chan v. Drexel Burnham Lambert, Inc., supra, 178 Cal.App.3d 632, 639, 223 Cal.Rptr. 838.)
These authorities persuade us that, regardless of how the issue in this case is characterized, we must, in addressing it, be guided by the principles favoring arbitration *83 as a preferred means of resolving disputes. With those principles in mind, we turn to the language of the arbitration clause in this case.
b. Application
The parties have not identified any authority construing the precise language at issue here, and we are aware of none. They do, however, cite three decisions which are instructive, as all concerned agreements which, like the present one, provided that disputes "may" be submitted to arbitration. In the first, Service Employees Internal Union, Local 18 v. American Building Maintenance Co. (1972) 29 Cal.App.3d 356, 105 Cal.Rptr. 564 (Service Employees), the agreement provided that "`the issue in dispute may be submitted to an impartial arbitrator.'" (Id., at p. 358, 105 Cal.Rptr. 564, italics omitted.) The court held the clause provided for mandatory rather than consensual arbitration. Since the parties always could elect consensual arbitration without a contract provision, interpretation of the clause to require only consensual arbitration would make the provision of little purpose. (Id., at p. 358, 105 Cal.Rptr. 564.) The court concluded the word "may" in this context merely meant a party who did not want arbitration had the option to abandon the claim. (Id., at p. 360, 105 Cal.Rptr. 564.)
In Titan Group, Inc. v. Sonoma Valley Sanitation Dist, supra, 164 Cal.App.3d 1122, 211 Cal.Rptr. 62 (Titan), the agreement similarly stated that disputes "may" be subject to the decision of a third person to be agreed upon by the parties. However, it also provided that all disputes "' ... will be decided by arbitration if the parties hereto mutually agree, or in a court of competent jurisdiction within the State in which the owner is located.'" (Id. at p. 1125, 211 Cal.Rptr. 62, original and added italics.) The court found no mandatory arbitration requirement, distinguishing Service Employees on the basis that the agreement in that case made no mention of a court proceeding as an available option. (Id., at p. 1129, 211 Cal.Rptr. 62.)
In Pacific Gas & Electric Co. v. Superior Court (1993) 15 Cal.App.4th 576, 19 Cal. Rptr.2d 295 (Pacific Gas & Electric), the agreement stated disputes "`may be submitted'" by either party to arbitration. (Id. at p. 595, 19 Cal.Rptr.2d 295.) The court concluded this provision mandated arbitration, stating, "In this context the `may' signifies the right of the party to invoke arbitration." (Ibid.)
Applying these decisions, and keeping in mind the policy, discussed ante, favoring construction of agreements in favor of arbitration, we conclude the provision in this case should be interpreted to require arbitration rather than merely to permit it. As did the courts in Service Empl-oyees and Pacific Gas & Electric, we construe the permissive language to mean simply that a member may, in lieu of proceeding to arbitration, merely forgo further review and accept the proposed resolution of the grievance panel. Moreover, the provision in this case contains additional language not present in Service Employees and Pacific Gas & Electric, which further emphasizes the mandatory nature of arbitration. The provision states that "[a]ny" disputes other than those subject to the Medicare appeals procedure "are subject to binding arbitration." The phrase "subject to" means "conditioned upon, limited by, or subordinate to." (Swan Magnetics, Inc. v. Superior Court (1997) 56 Cal.App.4th 1504, 1510, 66 Cal.Rptr.2d 541; see also Gapusan v. Jay (1998) 66 Cal.App.4th 734, 741, 78 Cal.Rptr.2d 250 ["The phrase `subject to' means `subordinate to.'"].) If a dispute is "subordinate to" binding arbitration, the reasonable conclusion is that arbitration is mandatory, not optional.
We also note that, in contrast to the agreement in Titan, the Senior Choice handbook makes no reference to court resolution of disputes subject to arbitration. Only with respect to Medicare appeals (which are excluded from the arbitration provision) is there any reference to court proceedings; the handbook indicates that a dissatisfied member in a Medicare appeal "may file a civil suit with a Federal district court." The absence of any such reference to a court proceeding in the arbitration provision further underscores the absence of a judicial remedy with respect to disputes which are subject to arbitration.
*84 We acknowledge the language of the arbitration clause could have been clearer.[6] But, as stated ante, we are not at liberty under section 2 of the FAA to impose heightened requirements of clarity on arbitration clauses beyond those applicable to contracts generally. It appears the lower court did just that in ruling that the clause in this case was not sufficiently clear and unequivocal to be valid. Since the court found the FAA did not apply, it understandably did not concern itself with whether the FAA might preclude such a heightened standard. At any rate, as we have seen, even under ordinary principles of construction as applied in Service Employees and Pacific Gas & Electric, which did not concern FAA contracts, the use of permissive language in this case did not make the clause so ambiguous as to be unenforceable.
Similarly, although we might in other circumstances construe any uncertainty against Aetna as the drafting party, that principle is subordinate to the policy favoring arbitration when construing FAA agreements. (Chan v. Drexel Burnham Lambert, Inc., supra, 178 Cal.App.3d 632, 639, 223 Cal.Rptr. 838.) Additionally, the principle does not apply where, as here, compulsory arbitration does not inherently favor the drafting party. (Pacific Gas & Electric, 15 Cal.App.4th 576, 596, 19 Cal.Rptr.2d 295.) We therefore conclude the court erred in ruling the clause was not sufficiently clear to be enforceable.
3. Unilateral Mistake
Mr. Erickson finally cites the principle that a party may rescind a contract on the ground of unilateral mistake, where the mistake "`is known to the other contracting party and is encouraged or fostered by that party.' [Citation.]" (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 855, 41 Cal.Rptr.2d 567.) That principle, however, only applies where the mistaken party submits evidence that the other party knew about and encouraged or fostered the mistake. (Ibid.) As Aetna points out, Mr. Erickson submitted no such evidence.
III
DISPOSITION
The judgment is reversed. The matter is remanded with directions to grant Aetna's motion for arbitration.
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.3.
[1] As do the parties, we refer to the 1995 version of the Senior Choice handbook.
[2] I.e., that any dispute will be determined by arbitration "and not by a lawsuit or resort to court process," and that the parties "are giving up their constitutional right to have any such dispute decided in a court of law before a jury...."
[3] Section 1363.1 does not apply to policies issued before its enactment. (Wolitarsky v. Blue Cross of California (1997) 53 Cal.App.4th 338, 348, 61 Cal.Rptr.2d 629.) The statute was not enacted until 1994, after Mr. Erickson enrolled in the Senior Choice plan. The lower court ruled this fact was not significant because the plan was subsequently changed after the statute's effective date. We do not address the propriety of that ruling in view of our conclusion on the preemption issue.
[**] See footnote *, ante.
[5] In Engalla v. Permanente Medical Croup, Inc., supra, 15 Cal.4th 951, 64 Cal.Rptr.2d 843, 938 P.2d 903, the Supreme Court recognized that a group medical plan might have "characteristics of an adhesion contract" under some circumstances, such as if only a small number of employees were enrolled and the employer therefore did not have much bargaining power. (Id., at p. 985, 64 Cal.Rptr.2d 843, 938 P.2d 903.) No comparable circumstances are present here.
[6] Likewise, we do not intend our conclusion that the clause is enforceable in this case to suggest we endorse its form or content. To the contrary, the seemingly unnecessary inclusion of permissive language in the clause virtually invites a member who wishes to avoid arbitration to argue, as Mr. Erickson does here, that the clause only provides for voluntary and not mandatory arbitration. Ironically, an earlier version of the handbook, which was sent to Mr. Erickson in 1993, did not contain that language, stating simply that any dispute was "subject to binding arbitration" unless prohibited by the liability insurer for the member's physician. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262734/ | 84 Cal.Rptr.2d 581 (1999)
71 Cal.App.4th 1370
Marie GUZMAN, Plaintiff and Appellant,
v.
VISALIA COMMUNITY BANK, Defendant and Respondent.
No. F026588.
Court of Appeal, Fifth District.
May 7, 1999.
Review Denied July 28, 1999.
*582 Luke & Barron and Linda A. Luke for Plaintiff and Appellant.
Thomas E. Campagne, Clifford C. Kemper; and Allison S. Gong for Defendant and Respondent.
OPINION
LEVY, J.
Appellant, Marie Guzman, was laid off by her employer, respondent, Visalia Community Bank, as part of a "reduction in force." Thereafter, appellant filed a complaint alleging that respondent, through its president and chief executive officer, had engaged in sexual discrimination and had created a hostile work environment.
This appeal challenges the trial court's orders that granted summary judgment in respondent's favor and denied appellant's request to enforce respondent's Code of Civil Procedure[1] section 998 offer to compromise. We conclude that the trial court erred in refusing to enforce respondent's section 998 offer to compromise. Therefore, the issues regarding the validity of the summary judgment have been rendered moot.
STATEMENT OF THE CASE AND FACTS
Since the substance of the underlying lawsuit is not relevant to our resolution of this appeal, the factual recitation is limited to the events surrounding the section 998 offer to compromise.
In an effort to settle the case, the parties appeared before a retired judge in March 1996. Respondent offered appellant $60,000, which appellant immediately rejected.
On May 2, 1996, respondent filed a motion for summary judgment to be heard on June 12. Appellant filed her response to the motion on May 16. On May 21, respondent mailed a section 998 offer to appellant, through her attorney, proposing to settle the case for $60,000.
Over the next few days, two telephone conversations took place between Linda Luke, counsel for appellant, and Clifford Kemper, counsel for respondent. The section 998 offer was only one of several topics the attorneys covered. Although Ms. Luke characterized this offer as "insulting and demeaning," a final decision on the offer was not specifically discussed.
On June 11, 1996, at approximately 4:30 p.m., the parties were informed of the court's tentative decision to grant respondent's summary judgment motion. Shortly thereafter, in accord with the Tulare County Superior Court Rules, Ms. Luke faxed a letter to Mr. Kemper stating that she intended to present oral argument in opposition to the motion.
That same evening, at approximately 11:15 p.m., Ms. Luke faxed a second letter to Mr. Kemper. This letter was an acceptance of the section 998 settlement offer.
On June 12, the hearing was held. The first issue decided by the court was whether Ms. Luke's attempt to accept the section 998 settlement offer was effective. Following testimony from the attorneys, the court ruled that Ms. Luke's disparagement of the offer during her telephone conversations with Mr. Kemper constituted a rejection and thus, the court would not enforce the settlement. The *583 court thereafter granted respondent's summary judgment motion.
DISCUSSION
Appellant contends the trial court erred when it refused to enforce respondent's statutory settlement offer. According to appellant, the offer was still operative when she accepted it the day before the summary judgment motion was heard.
As noted above, respondent's counsel, Clifford Kemper, served a section 998 offer to settle the action for $60,000 on appellant's counsel, Linda Luke, approximately three weeks before the date scheduled for the hearing on the summary judgment motion. This was respondent's second $60,000 offer. Respondent's first offer, made two months earlier at a settlement conference, had been immediately rejected by appellant.
Shortly after Mr. Kemper mailed this offer, he and Ms. Luke spoke at least twice by telephone. At issue is whether the comments Ms. Luke made during one of these conversations constituted a rejection of the offer. However, since these conversations did not generate any type of written record, the trial court was required to solicit testimony from both attorneys regarding their recollection of what transpired.
The trial court found Mr. Kemper's testimony to be "straightforward and truthful" and thus relied on that testimony in making its findings. However, the court also noted that Ms. Luke did not dispute Mr. Kemper's account of his conversation with her. Nevertheless, both attorneys had difficulty remembering the details of these telephone conversations.
Mr. Kemper testified he recalled Ms. Luke saying she thought the offer was insulting and demeaning. It provided nothing more than what respondent had offered at the settlement conference. Ms. Luke also stated that the offer did not cover her attorney fees.
However, this exchange was very brief. Mr. Kemper characterized the conversation as having "no major depth." Ms. Luke did not specifically say "I accept" or "I reject the offer." Rather, Mr. Kemper recalled "she told me that she was insulted, and I think she said demeaning. But we didn't discuss it anymore. We went on to a different subject, as a matter of fact." Nevertheless, Mr. Kemper assumed that, by disparaging the offer, Ms. Luke was rejecting it.
The trial court also reached this conclusion. The court found "that Ms. Luke's statement to Mr. Kemper that the May 21, 1996 offer of compromise was `insulting' and `demeaning' was, without question, a rejection of the offer." In contrast, Ms. Luke testified that she was attempting to negotiate further.
The applicable version of section 998 provides, in part:
"(b) Not less than 10 days prior to commencement of trial, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken in accordance with the terms and conditions stated at that time.
"(1) If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly.
"(2) If the offer is not accepted prior to trial or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial."
Section 998 reflects this state's policy of encouraging settlements. (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 270, 276 Cal.Rptr. 321, 801 P.2d 1072.) The goal has been to apply this section in a manner which best promotes its purpose. (T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 283, 204 Cal.Rptr. 143, 682 P.2d 338.) However, the statutory language is silent on a number of issues relevant to the application of the provision. For example, section 998 fails to provide guidance on what conduct constitutes an acceptance, whether a statutory offer may be revoked by the offeror before the statutorily designated period expires, and what effect a counteroffer has on the viability of an outstanding statutory settlement offer. (Poster v. Southern Cal. Rapid Transit Dist, supra, 52 Cal.3d at pp. 270-271, 276 Cal.Rptr. 321, 801 P.2d 1072.)
*584 The settlement and compromise process encompassed by section 998 is contractual. Consequently, the courts have referred to general contract principles to interpret the gaps in the statutory language. (T.M. Cobb Co. v. Superior Court, supra, 36 Cal.3d at p. 280, 204 Cal.Rptr. 143, 682 P.2d 338.) However, contract law does not necessarily resolve the issue. These principles are invoked only where they "neither conflict with the statute nor defeat its purpose." (Ibid.)
In T.M. Cobb Co. v. Superior Court, supra, the court applied the general contract principle that an offer may be revoked by the offeror any time prior to acceptance. Thus, the court held that an unaccepted offer made pursuant to section 998 could be revoked prior to expiration of the statutory period. The court concluded that this application of contract law would encourage parties to make offers pursuant to section 998 and would ensure that those offers were based on as complete an understanding of the facts as possible. (36 Cal.3d at pp. 278, 281, 204 Cal.Rptr. 143, 682 P.2d 338.)
However, in Poster v. Southern Cal. Rapid Transit Dist, supra, the court declined to adopt a common law contract principle when interpreting section 998. The court held that, contrary to the general rule, a counteroffer which deviates from the terms of the section 998 offer does not operate to revoke that offer. The court reasoned that negotiation during the 30-day period provided for in this section is a normal occurrence and ought not to affect the right of the offer to ultimately accept the statutory offer in a timely fashion. The court concluded that if the general contract principle were applied, it would act to discourage settlements. (52 Cal.3d at p. 271, 276 Cal.Rptr. 321, 801 P.2d 1072.)
The Poster court further noted that, if a counteroffer operated to revoke the statutory offer, there would be a significant and undesirable uncertainty introduced into the section 998 procedure. Disputes would arise over whether a communication from an offeree was a counteroffer that operated to revoke the statutory offer or merely an inquiry regarding the possibility of different terms that would leave the offeree free to accept the outstanding section 998 offer. (Poster v. Southern Cal. Rapid Transit Dist., supra, 52 Cal.3d at p. 272, 276 Cal.Rptr. 321, 801 P.2d 1072.) Thus, the court concluded that the "legislative purpose of section 998 is better served by the bright line rule ... under which a section 998 offer is not revoked by a counteroffer and may be accepted by the offeree during the statutory period unless the offer has been revoked by the offeror." (Ibid.)
The statutory gap on the issue of what conduct constitutes either an acceptance or a rejection under section 998 has not yet been filled. Thus, the analysis must begin with the applicable contract law principles.
"It is hornbook law that an unequivocal rejection by an offeree, communicated to the offeror, terminates the offer." (Beverly Way Associates v. Barham (1990) 226 Cal.App.3d 49, 55, 276 Cal.Rptr. 240.) Once this occurs, the offeree cannot later purport to accept the offer and thereby create an enforceable contract. (Ibid.) However, a manifestation of an intent not to accept, short of an unequivocal rejection, can also terminate the offer. (Rest.2d, Contracts, § 38.) If the offeree's words or acts either indicate that the offeree is declining the offer or justify the offeror in so inferring, the offeree will be considered to have rejected the offer. (Burton v. Coombs (Utah 1976) 557 P.2d 148, 149.)
On the other hand, it is not necessarily true that any communication other than an unequivocal acceptance is a rejection. (1 Williston on Contracts (4th ed.1990) § 5:3, p. 633.) Thus, an acceptance is not invalidated by the fact that it is "grumbling," or that the offeree makes some simultaneous "request." (1 Corbin on Contracts (rev.ed.1993) § 3.30, pp. 472-473.) Nevertheless, it must appear that the "grumble" does not go so far as to make it doubtful that the expression is really one of assent. (Id. at p. 475.) Similarly, the "request" must not add additional or different terms from those offered. Otherwise, the "acceptance" becomes a counteroffer. (Rest.2d, Contracts, § 59.)
The interpretation of the purported acceptance or rejection of an offer is a question of fact. (1 Corbin on Contracts, supra, *585 § 3.30, p. 477.) Further, based on the general rule that manifested mutual assent rather than actual mental assent is the essential element in the formation of contracts, the test of the true meaning of an acceptance or rejection is not what the party making it thought it meant or intended it to mean. Rather, the test is what a reasonable person in the position of the parties would have thought it meant. (2 Williston on Contracts, supra, § 6:57, pp. 682-686.)
Here, Ms. Luke was extremely critical of respondent's section 998 offer. Although Ms. Luke did not unequivocally reject the offer, Mr. Kemper interpreted her comments as doing so. Whether Mr. Kemper was justified in construing Ms. Luke's reaction to the offer as a rejection is, under contract law, a question of fact. Thus, if general contract principles were to apply to this aspect of section 998, the trial court's finding that the offer was rejected would be sustainable on appeal.
However, as is evident from the issues in this case, applying common law contract principles to determine whether a statutory offer has been rejected "introduces a significant and undesirable uncertainty into the section 998 procedure." (Cf. Poster v. Southern Cal. Rapid Transit Dist, supra, 52 Cal.3d at p. 272, 276 Cal.Rptr. 321, 801 P.2d 1072.) The published opinions grappling with the issue of what conduct constitutes a rejection are legion. If equivocal words or conduct can terminate a section 998 offer, disputes regarding whether the offer was still open when accepted are inevitable.
Further, applying general contract law does not further the policy of encouraging settlements. As noted in Poster v. Southern Cal. Rapid Transit Dist, supra, negotiation during the 30-day period provided for in section 998 is a normal occurrence. Such negotiation routinely involves requests for better offers, comments upon the terms, inquiries regarding the possibility of different terms, and counteroffers. The Poster court concluded that, if it were to hold that such negotiations could terminate the statutory offer, the ruling would have a negative impact on encouraging settlement. (Poster v. Southern. Cal. Rapid Transit Dist, supra, 52 Cal.3d at p. 271, 276 Cal.Rptr. 321, 801 P.2d 1072.)
Similarly, one would expect the conduct present here, i.e., criticism of the offer, to be a normal part of the negotiating strategy. Criticizing the offer can be viewed as an indirect request for a better offer. Thus, construing disparaging comments as a rejection of the offer under section 998 would negatively impact settlement.
In sum, both the policy of encouraging settlement and the desirability of maintaining certainty in the section 998 procedure compel the conclusion that general contract principles should not apply to the determination of whether the offer has been rejected. Rather, as with counteroffers in the section 998 context, the legislative purpose behind that provision is better served by a "bright line rule." Thus, in the absence of an unequivocal rejection of a section 998 offer, the offer may be accepted by the offeree during the statutory period unless the offer has been revoked by the offeror.
Based on the timing of appellant's acceptance, the trial court found two additional grounds for denying appellant's motion to compel compliance with the statutory offer. However, neither one justifies the denial.
As noted above, the acceptance was faxed to respondent's counsel the night before the hearing on the summary judgment motion. However, earlier that day, appellant had been informed that the trial court's tentative ruling was to grant summary judgment. In response to the tentative ruling, appellant's counsel faxed a letter to respondent stating that she intended to argue the motion. If appellant had not requested oral argument in this manner, the tentative ruling would have become the order of the court pursuant to a local court rule.
The trial court found that appellant's notice to respondent that she intended to argue the summary judgment motion constituted a written rejection of the section 998 offer. However, it is difficult to fathom the rationale behind this ruling. Appellant's oral argument request neither referred to, nor had any connection with, respondent's section 998 offer. Thus, appellant's decision to argue *586 the summary judgment motion should not be construed as the manifestation of an intent to reject the outstanding section 998 offer.
The court further concluded that public policy mandated its ruling. The court stated it could "envision no scenario where any Court could ever issue a tentative ruling if a party couldafter receiving an adverse tentative rulingaccept an offer of compromise, which it had previously rejected, on the basis that the offeror had not formally revoked its compromise offer." The court was also concerned with forcing an offeror to accept a previously rejected offer after the offeror detrimentally relied on the rejection.
However, as discussed above, for purposes of section 998, the offer had not been rejected. Additionally, since a statutory settlement offer is operative for a maximum of 30 days and can be revoked by the offeror before that time expires, the offeror has complete control over the timing of the offer from a procedural standpoint. The offeror's ability to revoke the offer before it is accepted also undermines any detrimental reliance claims.
Further, permitting the offeree to accept the section 998 offer after receipt of notice of an adverse tentative ruling does not distort the policy behind this provision. A tentative ruling is just that, tentative. Consequently, settlement at this stage should still be encouraged. Thus, contrary to the trial court's conclusion, in a situation such as the one presented here, the policy behind section 998 is advanced by enforcing the statutory settlement offer.
DISPOSITION
The order denying appellant's motion to enforce respondent's section 998 offer to compromise is reversed. The trial court is directed to vacate the judgment granting summary judgment and to enter a new judgment for appellant in the amount of $60,000. The parties shall bear their own costs on appeal.
WILLIAM A. STONE, Acting P.J., and VARTABEDIAN, J., concur.
NOTES
[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262737/ | 84 Cal.Rptr.2d 552 (1999)
71 Cal.App.4th 1260
SPRAY, GOULD & BOWERS, Plaintiff and Appellant,
v.
ASSOCIATED INTERNATIONAL INSURANCE COMPANY, Defendant and Respondent.
No. B116450.
Court of Appeal, Second District, Division Three.
May 4, 1999.
Review Denied August 11, 1999.
*553 Watkins & Stevens, Steven B. Stevens, Los Angeles; Mazursky, Schwartz & Angelo and Christopher E. Angelo, Los Angeles, for Plaintiff and Appellant.
Bryan Cave LLP, William I. Chertok and Richard C. Ochoa, Santa Monica, for Defendant and Respondent.
PETERSEN, J.[*]
Plaintiff Spray, Gould & Bowers is a law firm ("SG&B") which appeals the trial court's summary judgment in favor of the defendant Associated International Insurance Company ("AIIC"), based on the contract limitations period stated in the subject insurance policy. We hold that an insurer's direct violation of duly promulgated administrative regulations issued by the California Insurance Commissioner, requiring the insurer to notify a claimant insured of time limits pertaining to the claim, may provide the basis of an estoppel against the insurer's assertion of a contract limitations defense. The trial court's summary judgment is reversed and the matter is remanded for further proceedings.
STATEMENT OF THE CASE
1. The Complaint.
On September 16, 1996, SG&B filed its complaint, alleging causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, and declaratory relief. The complaint alleged that SG&B had suffered loss as a result of the Northridge Earthquake on January 17, 1994, that claim on SG&B's contract of insurance with AIIC had been timely made, and that AIIC had wrongly refused to pay, together with subsidiary supporting allegations. On January 6, 1997, AIIC filed its answer, raising inter alia a contract limitations affirmative defense.
2. The Summary Judgment Motion Proceedings.
a. The Motion.
On May 19, 1997, AIIC filed its motion for summary judgment, or in the alternative, for summary adjudication. The facts adduced in support of the summary judgment motion were the following. AIIC had sold to SG&B a Combined Business Interruption and Extra Expense Insurance Policy (the "Policy"), *554 with an effective period of September 2, 1993 to September 2, 1994. The Policy contained a contractual limitations clause. That clause (entitled "Suit.") provided that "no suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless the same shall be commenced within twelve (12) months next after discovery by the insured of the occurrence which gives rise to the claim, provided however, that if by the laws of the State within which this policy is issued such limitation is invalid, then any such claims shall be void unless such action, suit or proceeding be commenced within the shortest period of time permitted by the laws of such State." The loss occurred on January 17, 1994. The loss was discovered by the insured on January 17-18, 1994. The insured made claim under the policy on November 21, 1994. On April 18, 1995, AIIC denied the claim. The action below was filed on September 16, 1996. AIIC contended that under the computation standards set forth in Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674, 274 Cal.Rptr. 387, 798 P.2d 1230, approximately 10 months of the 12-month limitation period elapsed between January 18, 1994 (the discovery of the loss) and November 21, 1994 (the date of the claim), the period was then tolled until April 18, 1995 (the date of denial of the claim), and thus the filing of the action an additional 17 months later on September 16, 1996, was untimely because of a net elapsed period of approximately 27 months, past the contract limitations limit of 12 months.
On July 2, 1997, SG&B filed its opposition to the motion. SG & B submitted declarations and discovery responses which stated that the SG&B employees charged with the responsibility for the claim (executive director and business managers) were unaware of the 12-month policy limitations period, and that AIIC did not advise SG&B of the 12-month limit in the exchange of correspondence relating to the claim. SG&B submitted in evidence California Code of Regulations, title 10, sections 2695.1 and 2695.4.[1] These sections comprise a portion of the Fair Claims Settlement Practices Regulations (§§ 2695.1-2695.17) issued by the California Insurance Commissioner, (operative January 14, 1993, Register 92, No. 52).[2]
Section 2695.4(a) (as in effect at the time of the issuance of the policy, the loss, and the submission and denial of the claim here), required insurers to disclose to insureds time limits which apply to submitted claims.[3]
In its opposition argument, SG&B principally contended that AIIC had failed to notify SG&B of the time limit for filing an action on the policy (other than of course the admitted existence of the policy provision), and that in light of SG&B's lack of actual knowledge of the time limit, AIIC should be estopped from relying on the policy limitations provision.
On July 11, 1997, AIIC filed a reply and evidentiary objections, in essence denying the applicability of section 2695.4(a), under traditional contract and estoppel principles, to the limitations dispute. AIIC did not dispute its alleged violation of the regulation.
b. The Trial Court's Order And Judgment.
The trial court agreed with AIIC, essentially on the grounds that the stated (and presumably intended) consequence of a regulatory violation was solely administrative action by the Insurance Commissioner. The trial court granted the summary judgment motion, and on September 22, 1997, entered *555 judgment for AIIC. SG&B filed this timely appeal.
CONTENTIONS
SG&B contends that the trial courts granting of summary judgment is erroneous in that: (1) AIIC did not prove its initial entitlement to summary judgment, (2) a triable issue of fact was raised as to whether AIIC was estopped to assert the statute of limitations defense, and (3) the trial court applied the wrong statutory period to the implied covenant and the declaratory relief causes of action.
We agree that a triable issue of fact was raised as to whether AIIC should be estopped from raising the limitations defense, and on that basis reverse the summary judgment. In light of our holding that AIIC's violation section 2695.4(a) of the Fair Claims Settlement Practices Regulations (requiring the insurer to "disclose to" a claimant insured all policy "time limits ... that may apply to the claim") may provide the basis of an estoppel against the insurer's assertion of a contract limitations defense SG&B established a triable issue of fact as to whether it had actual knowledge of the policy time limits applicable to the claim.
DISCUSSION
1. Introduction.
a. Standard Of Review.
A summary judgment is properly granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc, § 437c, subd. (c).) In determining the propriety of a summary judgment, we are limited to those facts shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings. (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962, 9 Cal.Rptr.2d 306.) On a motion for summary judgment, the moving party bears the burden of showing there are no triable issues of material fact. "A defendant ... has met his or her burden of showing that a cause of action has no merit if that party has shown ... that there is a complete defense to that cause of action." (Code Civ. Proc, § 437c, subd. (o)(2).) The burden then shifts to the plaintiff to show the existence of a triable issue of fact.[4] (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal. App.4th 620, 629, 41 Cal.Rptr.2d 329.) In our review we exercise independent judgment in determining whether there are no triable issues of material fact and the moving party is thus entitled to judgment as a matter of law. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal. Rptr.2d 653; Torres v. Cool Carriers AB. (1994) 26 Cal.App.4th 900, 904, 31 Cal. Rptr.2d 790.)
b. AIIC Proved Its Initial Entitlement To Summary Judgment.
AIIC showed that SG&B discovered the loss on January 17-18, 1994, made its claim on November 21, 1994, and that on April 18, 1995, AIIC denied the claim.
In the absence of statutory provisions to the contrary, 12-month contractual limitation provisions in insurance policies are generally valid, provided they are plain, clear and conspicuous, and further provided they are not unreasonable. (C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, *556 1064, 211 Cal.Rptr. 765; cf. Prudential-LMI Com. Insurance v. Superior Court, supra, 51 Cal.3d 674, 274 Cal.Rptr. 387, 798 P.2d 1230 [statutorily required 12-month limitation provision in homeowner's policy valid, but held subject to further equitable tolling].)
Under Prudentialr-LMI Com. Insurance v. Superior Court, the one-year period is equitably tolled between the time that the insured notifies the carrier of the loss, and the written denial of the claim. Therefore, the period was indisputably tolled for the 10-month period between November 21, 1994 (the date of the claim), and April 18, 1995 (the date of denial). But the filing of the action came an additional 17 months later on September 16, 1996. This was a net elapsed period of approximately 27 months, well beyond the contract limitations limit of 12 months.
AIIC carried its initial burden to show the claim time-barred by the contract limitations provision according to computation formula set forth in Prudential-LMI Com. Insurance v. Superior Courts[5]
2. SG&B Raised A Triable Issue Of Fact As To Whether AIIC Was Estopped To Assert The Statute Of Limitations Defense.
SG&B's major contention is that AIIC should be estopped from relying on the contract limitations defense, because (a) SG&B was unaware of the 12-month limitations period, and (b) AIIC failed to disclose the short limitations period to SG&B, despite (c) the requirement of section 2695.4(a) that "every insurer shall disclose to a first party claimant... all ... time limits ... of any insurance policy issued by that insurer that may apply to the claim presented by the claimant."
An estoppel against a limitations defense usually "`arises as a result of some conduct by the defendant, relied on by the plaintiff, which induce the belated filing of the action.'" (Prudential-LMI Com. Insurance v. Superior Court, supra, 51 Cal.3d at pp. 689-390, 274 Cal.Rptr. 387, 798 P.2d 1230; Velasquez v. Truck Ins. Exchange (1991) 1 Cal.App.4th 712, 723, 5 Cal.Rptr.2d 1; 3 Witkin, Cal. Procedure (3d ed.1985), Actions, § 523, p. 550.)
"`Four elements must ordinarily be proved to establish an equitable estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and, (4) he must rely upon the conduct to his injury.'" (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 59, 35 Cal.Rptr.2d 515.)
Application of equitable estoppel against the assertion of a limitations defense typically arises through some misleading affirmative conduct on the part of a defendant. There is no such affirmative conduct here. AIIC was mum on the subject of the limitations provision and any time limit governing the commencement of litigation after its denial of the claim. It is well established that mere silence will not create an estoppel, unless there is a duty to speak.
The absence of affirmative conduct here does not end the inquiry, however. An estoppel may arise from silence where there is a duty to speak. (Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399, 154 P.2d 399; People v. Ocean Shore Railroad (1948) 32 Cal.2d 406, 421-422, 196 P.2d 570; Skulnick v. Roberts Express, Inc. (1992) 2 Cal. App.4th 884, 891, 3 Cal.Rptr.2d 597; Lix v. Edwards (1978) 82 Cal.App.3d 573, 580, 147 Cal.Rptr. 294; Dettamanti v. Lompoc Union School Dist. (1956) 143 Cal.App.2d 715, 721, 300 P.2d 78; Crittenden v. McCloud (1951) 106 Cal.App.2d 42, 48, 234 P.2d 642; Merry v. Garibaldi (1941) 48 Cal.App.2d 397, 401, 119 P.2d 768; 11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 179, p. 861.)
"`"An estoppel may arise also from silence as well as from words or conduct. But this is *557 only where there is a duty to speak, and where the party upon whom such duty rests has an opportunity to speak, and, knowing that the circumstances require him to speak, remains silent." [Citations] [¶] "It is not necessary that the duty to speak should arise out of any agreement, or rest upon any legal obligation in the ordinary sense. Courts of equity apply in such cases the principles of natural justice, and whenever these require disclosure they raise the duty and bind the conscience and base upon the omission an equitable forfeiture to the extent necessary to the protection of the innocent party." [Citation.]'" (Elliano v. Assurance Co. of America (1970) 3 Cal.App.3d 446, 452-53, 83 Cal.Rptr. 509, citing 10 Cal.Jur. at pp. 631-632.)
SG&B argues that a duty to speak arises from the regulation. We agree. The regulation imposes on insurers an unmistakable duty to advise its claimant insureds of applicable claim time limits. The regulation directly targets the situation presented by this appeal. The regulation's purpose is salutary, designed to alert insureds to their insurance policy obligations, and to foster equity, fairness, and plain-dealing in claims handling. The promulgation of the regulations is expressly authorized by Insurance Code section 790.10.[6] The Regulations flesh out the statutory public policy of the Unfair Practices Act, the purpose of which is to regulate trade practices in the business of insurance. (Ins.Code, § 790.) Section 790.03(h) specifically forbids certain unfair claims settlement practices.[7] In sum, the Commissioner's "Fair Claims Settlement Practices Regulations" represent the considered and duly promulgated public policy appropriate to the processing of its subject insurance claims in California.[8] We see no reason not to adopt this carefully considered public policy as giving rise to a duty to speak for the purpose of applying the doctrine of equitable estoppel. To do otherwise would arbitrarily undermine an applicable industry standard, one expressly designed to insure fairness in the claims process and resolution of claims on the merits. There seems no valid reason to ignore its command.
a. Estoppel Is Not Precluded By The Limits Of The Commissioner's Regulatory Authority.
AIIC contends that estoppel based on violation of the regulation is inappropriate because the regulations themselves state the applicable sanctions: administrative action against the insurer's license and/or monetary penalties.[9] We disagree that the stated regulatory penalty necessarily ends the inquiry into extra-administrative effect to the insurance regulations. No established legal doctrine precludes wider effect.[10] The failure of the Insurance Commissioner to adopt *558 an estoppel sanction in the regulations cannot be taken ipso facto as a decisive expression of the Commissioner's desire to limit the effect of regulatory violation to administrative sanctions. The Commissioner might well have considered only that administrative sanctions represented the limit of his regulatory authority. The Commissioner's failure to arrogate additional authority to himself cannot be seen as a tacit effort to retrench from the positive command and salutary effect of the Insurance Regulations.
But above all this, there is a more compelling reason why the limits of the Commissioner's administrative power are not inconsistent with giving extra-administrative effect to the Insurance Regulations in first party claims disputes. The Commissioner's regulatory power is punitive, not remedial. In contrast, equitable estoppel is not a punitive notion, but rather a remedial judicial doctrine employed to insure fairness, prevent injustice, and do equity. It stems from the venerable judicial prerogative to redress unfairness in the application of otherwise inflexible legal dogma, based on sound public policy and equity. (Cf. Prudential-LMI Com. Insurance v. Superior Court, supra, 51 Cal.3d at pp. 691-693, 274 Cal.Rptr. 387, 798 P.2d 1230.)
The object and purpose of the time limit disclosure requirement contained in the regulations is to preserve claims for resolution on the merits: to remedy the trap for the unwary. Yet the limit of the Commissioner's administrative authority is to impose monetary penalties and adverse licensure action in order to coerce future compliance. Therapeutic as this may be, its effect is prospective only. The after-the-fact administrative sanction does nothing to rectify the very wrong the regulation was designed to prevent. Only if the courts, through their equitable powers, require compliance with the regulation will its purpose of claim preservation be achieved. It would be a perverse irony for government to take down an insured's valid complaint, and duly note the insured's evidence, with an eye only toward the next victim. To coldly inform the insured that the insurer will be called to account, but that the insured's claim will stand denied as untimely, is a deplorable inequity to be redressed.
If we allow an insurer to rely upon a preclusive policy provision as to which it was required, but did not, give the insured special notice, then we effectively place a premium upon insurer disregard of the regulation which imposed the requirement. The subsequent imposition by the Commissioner of an administrative sanction may or may not induce future compliance, but we will have succeeded in encouraging the insurer to regard the question of regulatory compliance as a day-to-day business decision unrelated to the consequences of violation which might flow in a judicial proceeding to resolve a particular claim. Such a result will not necessarily cause insurers to adopt and implement a practice of compliance. In short, it is simply unacceptable for an insurer to take advantage of its own misconduct and thereby succeed in defeating an otherwise legitimate claim because the insured did not comply with a policy time limit of which it was not actually aware due to the insurer's failure to provide the required notice. The Commissioner's "Fair Claims Settlement Practices Regulations" state a considered public policy, and deserve to be given practical and equitable effect.
b. Estoppel Is Not Precluded By Moradi-Shalal.
AIIC contends that SG&B's arguments implicitly contravene the Supreme Court's rationale *559 in Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal.3d 287, 250 Cal.Rptr. 116, 758 P.2d 58, that California's Unfair Practices Act (Ins.Code, § 790.03, subd. (h)) does not provide a private cause of action against insurance companies (in a third-party case). In Zephyr Park v. Superior Court (1989) 213 Cal.App.3d 833, 836-838, 262 Cal.Rptr. 106, Moradi-Shalal was extended to first-party claims. However, Moradi-Shalal speaks only to whether the Unfair Practices Act creates a private right of action, and not to whether the Regulations might form the basis of an estoppel where they are violated. Nothing in Moradi-Shalal suggests that insurer violations of the Unfair Practices Act or its enabling regulations may not have consequences short of an independent private right of action. Indeed, in Moradi-Shalal, the court stated, "apart from administrative remedies [under section 790.03], the courts retain jurisdiction to impose civil damages or other remedies against insurers in appropriate common law actions, based on such traditional theories as fraud, infliction of emotional distress, and (as to the insured) either breach of contract or breach of the implied covenant of good faith and fair dealing." (46 Cal.3d at pp. 304-305, 250 Cal.Rptr. 116, 758 P.2d 58, italics added.) Accordingly, estoppel against the assertion of a limitations defense is not precluded by the holding or rationale in Moradi-Shalal or Zephyr Park.
c. Estoppel Is Not Inconsistent With Waller v. Truck Ins. Exchange, Inc.
AIIC also contends that SG&B's arguments implicitly contravene the Supreme Court's holding in Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 34, 44 Cal. Rptr.2d 370, 900 P.2d 619, to the effect that an insurer is not estopped from asserting valid coverage defenses not mentioned in the denial of a claim, where no detrimental reliance is shown by the insured. But Waller is distinguishable because SG&B has raised a triable issue of fact on the element of detrimental reliance, through its declarations asserting lack of actual knowledge of the time limit applicable to its claim. Furthermore, Waller simply did not deal with the affirmative duty to speak imposed by the Fair Claims Settlement Practices Regulations.
d. Estoppel Is Not Precluded By SG&B's Arguable Constructive Knowledge.
AIIC raises the question of whether SG&B can be said to be ignorant of the true facts, so as to be capable of being misled as to the policy limitations period, in light of the rule that an insured is charged with constructive knowledge of policy provisions which are plain, clear, and conspicuous. (Hadland v. NN Investors Life Ins. Co. (1994) 24 Cal.App.4th 1578, 30 Cal.Rptr.2d 88; C & H Foods Co. v. Hartford Ins. Co., supra, 163 Cal.App.3d at p. 1064, 211 Cal. Rptr. 765.) We must reject this contention. By its terms, section 2695.4(a) requires the insurer to "disclose to" a claimant insured all policy "time limits". This obviously implies a type of notice, communicated independent of the policy itself, which is calculated to achieve actual rather than constructive knowledge. The implicit assumption of the regulation is that the mere existence of the policy provision is not enough, no matter how "plain, clear and conspicuous." The whole purpose of such notice is to assure actual, not merely constructive, knowledge, of the contractual limitations period within which suit must be brought by an insured. To permit an insurer to enforce a time limit provision based solely on evidence of constructive notice would eviscerate the purpose of the regulation. AIIC cannot rely on the traditional doctrine deeming the insured to have constructive knowledge of policy provisions.[11]
*560 e. Estoppel Is Not Precluded By Any Prior Precedent.
AIIC finally asserts that no California case has found the basis of an estoppel in an insurer's violation of the Insurance Commissioner's Regulations. But references have been made to the substantive concept of requiring insurers to advise claimants of time limits. For example, in Prudential-LMI Com. Insurance v. Superior Court, supra, 51 Cal.3d at p. 691, 274 Cal.Rptr. 387, 798 P.2d 1230, the Supreme Court specifically noted the proposal made by Appleman, to require insurers to give the notice SG&B states to be required by the regulation here: "Another commentator has suggested that insurers be required to give special notice to insured claimants of the running of the limitation period during the claims process. (20A Appleman, Insurance Law and Practice (1980) § 11601, pp. 435-436.) Appleman notes that, as a practical matter, the insured is usually unaware of and would not reasonably expect such a short limitation period to run while his insurer is still examining the claim. (Ibid.)"[12]
So far as we know, no other California appellate court has passed on the subject of an estoppel based in part on the Insurance Commissioner's Fair Claims Settlement Practices Regulations. However we find it appropriate under the facts of this case.
CONCLUSION
We are mindful that this decision may change the way some insurers conduct themselves. But those insurers have no legitimate grounds for complaint. We create no new liability for insurers. We but bring clarity to an all too common claims situation where clarity is warranted. Like the Commissioner's Fair Claims Settlement Practices Regulations, this decision will hopefully help to insure that valid claims will not be lost by an unusually short limitations period. The Commissioner's Regulations establish the standard of conduct for insurers in California. Insurers who flout the Regulations have no right to gain a competitive edge on insurers *561 who scrupulously follow the Regulations and faithfully discharge their obligations to their insureds. Insurers who follow the law should not be put at competitive disadvantage, particularly at the expense of insureds who may have valid claims.[13]
DISPOSITION
The trial courts judgment is reversed and the matter is remanded for further proceedings consistent with the views expressed herein. SG&B shall recover its costs on appeal.
KLEIN, P.J., and CROSKEY, J., concur.
NOTES
[*] Assigned by the Chairperson of the Judicial Council.
[1] All further statutory references are to the title 10 of the California Code of Regulations unless otherwise specified.
[2] Even though the time limit disclosure requirement of section 2695.4(a) was retained in the 1997 amendments to the regulations (operative May 10, 1997, Register 97, No. 2), we consider only the language of the regulations in place at the time of the events in question.
[3] California Administrative Code, section 2695.4(a) provides in pertinent part: "Every insurer shall disclose to a first party claimant or beneficiary, all benefits, coverage, time limits, or other provisions of any insurance policy issued by that insurer that may apply to the claim presented by the claimant." (Italics added.) Certain classes of insurance, such as workers' compensation and medical malpractice, are excepted from the regulations.
[4] We reject AIIC's contention that SG&B failed to preserve its estoppel argument by not pleading estoppel in the complaint. Of course when a complaint shows on its face (or with the help of judicially noticed facts) that a pleaded cause of action is apparently barred by the statute of limitations, plaintiff must plead facts which show an excuse, tolling, or other basis for avoiding the statutory bar (Grange Debris Box & Wrecking Co. v. Superior Court (1993) 16 Cal.App.4th 1349, 1360, 20 Cal.Rptr.2d 515; 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 886), at least in order to avoid a successful demurrer. (See e.g., Kunstman v. Mirizzi (1965) 234 Cal.App.2d 753, 755, 44 Cal.Rptr. 707, and Muraoka v. Budget Rent-A-Car, Inc. (1984) 160 Cal.App.3d 107, 115, 206 Cal.Rptr. 476 [Where a complaint shows upon its face that the statute of limitations has run, the plaintiff may anticipate the defense of limitation of action and allege facts to establish an estoppel.].) Quite apart from the fact this contention was not raised in the trial court, this pleading rule does not apply here because the limitations defense is not shown on the face of the SG&B complaint and is instead raised as new matter in AIIC's answer. (Davies v. Langin (1962) 203 Cal.App.2d 579, 583-584, 21 Cal. Rptr. 682.)
[5] SG&B does not dispute AIIC's reading of the policy. AIIC does not dispute SG&B's reading of the regulation, nor seriously dispute SG&B's showing of lack of actual knowledge of the 12-month limitations provision, based on the record developed below.
[6] Insurance Code Section 790.10 provides: "The commissioner shall, from time to time as conditions warrant, after notice and public hearing, promulgate reasonable rules and regulations, and amendments and additions thereto, as are necessary to administer this article."
[7] Insurance Code Section 790.03(h) defines unfair methods of competition and unfair and deceptive acts or practices, and with reference to "unfair claims settlement practices" includes "knowingly committing or performing with such frequency as to indicate a general business practice any of the following unfair claims settlement practices: ... [¶] (15) Misleading a claimant as to the applicable statute of limitations."
[8] AIIC does not contend that the regulations have been other than duly promulgated.
[9] As already noted, section 2695.4 is part of the California Fair Claims Settlement Practices Regulations. At the time of the events involved in this appeal, the specified consequences of a regulatory violation was set forth in section 2695.15: "Penalties. Any licensee who violates any regulation contained in this subchapter shall be subject to all applicable monetary penalties or other administrative actions within the jurisdiction of the Commissioner including, but not limited to, suspension or revocation of an insurer's certificate of Authority or license or revocation or suspension of an agent's license." Section 2695.15 was repealed in 1997, and some of its provisions repromulgated in section 2695.12. The range of penalties available to the Commissioner remained as specified in the Insurance Code. Neither the regulations nor the Insurance Code forbid extra-administrative effect for violations of section 2695.4.
[10] Indeed, extra-administrative effect of regulatory pronouncements is hardly unprecedented. The influence of safety regulations has long been projected outside the administrative arena into their respective zones of operation under the negligence per se doctrine by shifting the burden of proof in personal injury cases (see Evid.Code, § 669(a)(1)), and by establishing prudent norms and customs, and standards of care. (Cf. California Service Station etc. Assn. v. American Home Assurance Co. (1998) 62 Cal.App.4th 1166, 1175-1177, 73 Cal.Rptr.2d 182 [Insurance Commissioner's regulation requiring insurers to furnish dividend disclosure statement to workers' compensation policy purchasers (10 Cal.Code of Regulations, § 2505), did not create negligence duty of care or establish presumption of negligence under negligence per se doctrine, because authority to legislate the imposition of such a duty not delegated to the agency by the Legislature, distinguishing the possible relevance of such regulations to standards of care operating within an independently established duty of care].) Of course, any theory of new or expanded insurer liability, based upon a violation of regulations promulgated to enforce the provisions of Insurance Code section 790.03, may well be confronted with the authority of Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 250 Cal.Rptr. 116, 758 P.2d 58, and its progeny.
[11] We note that the policy language which follows the 12-month limitations requirement continues on with a proviso: "... provided however, that if by the laws of the State within which this policy is issued such limitation is invalid, then any such claims shall be void unless such action, suit or proceeding be commenced within the shortest period of time permitted by the laws of such State." If this policy reference to "the laws of the State" is construed to include the Commissioner's Fair Claims Settlement Practices Regulations, then the 12-month period would be invalid absent compliance with the Regulations, and SG&B's action would appear to be timely under the policy. Under established principles, in the absence of special meaning or technical usage, insurance policy language is given its plain and ordinary meaning, resolving ambiguities in favor of coverage and against exclusions and limitations. (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821-822, 274 Cal.Rptr. 820, 799 P.2d 1253.) The policy term "laws of the State" must certainly include statutes and case law. In the context of AIIC's insurance policy, the general and undefined term "laws" does not appear to be imbued with any special meaning or technical sense that would exclude duly promulgated insurance regulations. If, interpreted in its "ordinary and popular sense" and according to "the meaning a layperson would ascribe to [that] contract language" (id.), the corpus of a state's "laws" is taken to refer to standards of conduct imposed by sovereign authority, and the obligation of obedience on the part of all subject to that authority, then it would appear to follow that the Fair Claims Settlement Practices Regulations, promulgated under the specific aegis of the sovereign authority of the State of California, might be incorporated into the policy as a matter of contract interpretation. However we need not reach this issue, or whether a contract term at odds with the Fair Claims Settlement Practices Regulations would be unreasonable, or otherwise unenforceable as contrary to public policy. (Rest.2d Contracts (1979) § 178.)
[12] The full passage from Appleman is as follows. "Such contractual limitations do, however, present their dangers. In the abstract, it sounds perfectly logical to say that the parties have the right to agree upon any contractual provisions they may desire. But do they, in fact, do so? As a practical matter, they do not. The contracts are prepared by the insurer and delivered, usually in a voluminous printed form (often package), to the applicant. It is doubtful that even attorney-in-sureds [so in original] read this mass of small print. They are then unaware, for example, of the fact that an action on a fire policy must be brought within 12 months, instead of the much longer period fixed by statute for actions upon written contracts generally. [¶] While I do not propose overruling the mass of authority holding such provisions to be valid, in view of the long acceptance of such rule, it would seem that a modification is in order. The insurer should be required, at the time a proof of loss is furnished, under any type of insurance contract, to notify the insured in plain and unmistakable language, in writing, that, in the event of any disagreement, action must be brought not later thanspecifically designating the expiration date. This could be imposed as an equitable requirement as a condition precedent for utilizing such defense. It would require such suits to be brought while the facts are fresh and witnesses available, but it would stop insurers from utilizing such small print provisions, of which the insureds are unaware, as traps for the unwary. All too often, that is a current practice." (20A Appleman, Insurance Law and Practice (1980) ch. 390, § 11601, pp. 435-436, italics added., fn. omitted.)
[13] In light of the disposition, we need not reach other contentions presented by the parties. Our disposition is without prejudice to a AIIC's pursuit of a new summary judgment motion if AIIC can establish actual knowledge on the part of SG&B. On this record a triable issue exists as to actual knowledge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330143/ | 301 S.E.2d 423 (1983)
STATE of North Carolina
v.
Charles Wesley WILLIAMSON.
No. 8227SC1005.
Court of Appeals of North Carolina.
April 5, 1983.
*424 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Frank P. Graham, Raleigh, for the State.
Appellate Defender Adam Stein by Asst. Appellate Defender Nora B. Henry, Raleigh, for defendant-appellant.
BRASWELL, Judge.
Defendant's sole question presented for review is whether the court erred in its findings of fact by failing to show that defendant's evidence of lawful excuse was considered and evaluated.
*425 Some confusion arises from the fact that there are two separate documentsan order and a judgmentwhich revoke defendant's probation. Discrepancies, although mostly minor ones, exist in these documents. The major difference is that while the judgment contains the phrase, "From evidence presented, the Court finds...", this language is missing from the order. In his brief, defendant attacks the legal sufficiency of the order and not the judgment, although an exception is taken to entry of both documents. "An order is distinguishable from a judgment. [A]n order has been defined ... as being every direction of a court or judge made in writing and not included in a judgment." 46 Am.Jur.2d Judgments § 3 at p. 315 (1969). A judgment is "a final determination of the rights of the parties in an action." Id. at § 1, p. 314. We hold, therefore, that when there is a conflict between the language or interpretation of an order and a judgment on the same subject matter, the judgment shall control. It appears to be the usual practice in probation revocation proceedings to issue both an order and a judgment revoking probation. Since this practice seems to serve no legal or administrative purpose[1] but can create some confusion when discrepancies exist, we believe that it would be appropriate for the Division of Adult Probation and Parole and the Administrative Office of the Courts to eliminate the use of a separate order in the probation revocation process.
The findings of fact in the judgment read as follows:
"From evidence presented, the Court finds as fact that within the specified period of suspension, the defendant wilfully and without lawful excuse violated the terms and condition of his probation in that: the defendant was ordered to pay the cost, fine and attorney fees into the Office of the Clerk of Superior Court at a rate of $30.00 monthly. As of this date, the defendant has failed to make a payment leaving the court debt in arrears the sum of $300.00. His failure to pay the court debt is a violation of special conditions." (Emphasis added).
Defendant submits that the findings do not clearly show that defendant's evidence of lawful excuse was considered and evaluated, as required by State v. Smith, 43 N.C. App. 727, 259 S.E.2d 805 (1979), and State v. Young, 21 N.C.App. 316, 204 S.E.2d 185 (1974).
The minimum requirements of due process in a final probation revocation hearing in the Trial Division of the General Court of Justice shall include these procedures:
(1) a written notice of the conditions allegedly violated;
(2) a court hearing on the violation(s) including:
(a) a disclosure of the evidence against him, or,
(b) a waiver of the presentation of the State's evidence by an in-court admission of the willful or without lawful excuse violation as contained in the written notice (or report) of violation,
(c) an opportunity to be heard in person and to present witnesses and evidence,
(d) the right to cross-examine adverse witnesses;
(3) a written judgment by the judge which shall contain
(a) findings of fact as to the evidence relied on,
(b) reasons for revoking probation.
See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761-62, 36 L. Ed. 2d 656, 664 (1973); State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 479-80 (1967).
The first step in the decision process is for the trial judge to resolve the factual question of whether the probationer has in fact violated one or more conditions of his probation. If so, a second question for the *426 trial judge is whether probation should be revoked and the suspended sentence activated, or whether other steps should be taken to protect society and improve chances of rehabilitation, such as, continuation of probation or modification of conditions of probation. See Morrissey v. Brewer, 408 U.S. 471, 479-80, 92 S. Ct. 2593, 2599, 33 L. Ed. 2d 484, 493 (1972), cited in Gagnon v. Scarpelli, supra, 411 U.S. at 784, 93 S.Ct. at 1760-61, 36 L.Ed.2d at 663.
Revocation hearings are often regarded as informal proceedings, and the Court is not bound by strict rules of evidence. The alleged violation of probation need not be proved beyond a reasonable doubt. State v. Hewett, supra. The burden of proof in a probation revocation hearing is that the trial judge must be reasonably satisfied from the evidence and in his sound discretion that the defendant has violated, without lawful excuse a valid condition upon which the sentence was suspended. The findings of fact by the judge must show he exercised his discretion to that effect. State v. Robinson, 248 N.C. 282, 287, 103 S.E.2d 376, 380 (1958).
In the violation hearing the defendant should offer evidence of his inability to pay money according to the terms of the judgment. If he offers no such evidence, then the evidence which establishes that defendant has failed to make payments as required by the terms of the judgment is sufficient within itself to justify a finding by the judge that defendant's failure to comply was without lawful excuse. State v. Young, supra.
The trial judge has a duty, when the defendant does offer evidence of his ability or inability to make the money payments required, to make findings of fact which clearly show that he did consider and did evaluate the defendant's evidence. State v. Smith, supra. "The trial judge, as the finder of the facts, is not required to accept defendant's evidence as true." State v. Young, supra 21 N.C.App. at 321, 204 S.E.2d at 188.
Judge Helms heard lengthy testimony and received evidence concerning defendant's inability to find employment and his medical and mental problems. Based upon the evidence presented, he found as a fact that defendant had violated the conditions of his probation without lawful excuse. Although the Judge could have been more explicit in the findings by stating that he had considered and evaluated defendant's evidence of inability to make the required payments and found it insufficient to justify breach of the probation condition, we hold that his failure to do so does not constitute an abuse of discretion. It would not be reasonable to require that a judge make specific findings of fact on each of defendant's allegations tending to justify his breach of conditions. The breach of any one condition is sufficient grounds to revoke probation. State v. Seay, 59 N.C.App. 667, 298 S.E.2d 53 (1982). The evidence here showed that defendant violated the condition requiring the restitution payments.
The judgment revoking probation and activating the suspended sentence is affirmed.
HEDRICK and WHICHARD, JJ., concur.
NOTES
[1] The only statutory reference to an "order" occurs in G.S. 15A-1344(c). In application, such an "order" is limited to the occasion when the probation case is heard "outside the county where the judgment was entered." Then "the clerk must send a copy of the order ... to the court where probation was originally imposed." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330140/ | 250 Ga. 730 (1983)
301 S.E.2d 44
WORTHINGTON
v.
WORTHINGTON et al.
39022.
Supreme Court of Georgia.
Decided March 17, 1983.
J. Corbett Peek, Jr., James Garland Peek, for appellant.
Nickerson & Gaulden, Thomas Henry Nickerson, for appellees.
BELL, Justice.
This case is before us on certiorari from a decision of the Court of Appeals. Worthington v. Worthington, 162 Ga. App. 813 (292 SE2d 861) (1982). In 1974 Mary Jane Moore bore an illegitimate child. She filed suit against appellant, alleging he was the father and seeking to compel him to pay child support. The complaint was eventually amended so that it was cast solely as an OCGA Ch. 19-7, Art. 3 (Code Ann. § 74-301 et seq.) (Ga. L. 1980, p. 1374) paternity suit with Moore individually and her son individually, by next friend, and by guardian ad litem as plaintiffs. In defense appellant answered that he and Moore had entered into a contract in 1974 under the terms of which he gave her $10,000 in return for her release of all support obligations he might owe her and the child. He moved for summary judgment, which was denied, and the Court of Appeals granted an interlocutory appeal.
The Court held that to the extent the mother had an individual *731 right to sue for child support she had waived that right, but also found that insofar as the contract purported to waive the child's right to support under OCGA § 19-7-24 (Code Ann. § 74-202)[1] it was contrary to public policy and unenforceable.
Appellant applied for a writ of certiorari, which we granted. He urges that OCGA Ch. 19-7, Art. 3 (Code Ann. § 74-301 et seq.) is a new remedy for failure to fulfill the obligation to support an illegitimate child and is not intended to be retrospective. He further argues that his contract extinguished his duty of support, and an attempt to revive that duty by retroactively applying Article 3 will unconstitutionally impair his vested contractual right. We reverse the first division of the Court of Appeals' opinion; we uphold the result of the second division, but not for the reasons the Court relied upon.
1) With respect to Division (2), we have already held in divorce cases that the right to petition for modification of child support belongs to the child, and cannot be waived by agreement between the parents. Livsey v. Livsey, 229 Ga. 368, 369 (191 SE2d 859) (1972); accord, Crosby v. Crosby, 249 Ga. 569 (292 SE2d 814) (1982); OCGA § 1-3-7 (Code Ann. § 102-106). If the problem facing us were purely one of social policy and its impact upon the enforceability of contracts, as the Court of Appeals characterizes it, we would not hesitate to find that the protection of the non-waiver doctrine should be extended to illegitimate children. See Walker v. Walker, 266 S2d 385 (Dist. Ct. App. Fla. 1972). Children, legitimate or illegitimate, are not property, and absent a clear legislative declaration otherwise their support rights may not be bartered away by their parents. H. Clark, The Law of Domestic Relations, § 5.3 (1968).[2] Contra, Warner v. Burke, 137 *732 Ga. App. 185 (223 SE2d 234) (1976). See Newsome v. Newsome, 232 Ga. 49, 51 (205 SE2d 291) (1974) (Ingram, J., concurring specially). See generally 10 AmJur2d 917, Bastards, § 98; 10 CJS Bastards, §§ 40-41 (1982 Supp.). But there is also an important issue of statutory interpretation which the Court of Appeals has not addressed, i.e., the possible conflict between the voluntary discharge language of the 1974 version of § 19-7-24 (Code Ann. § 74-202) and that section of Article 3 which provides, "Regardless of its terms, an agreement, other than an agreement approved by the court in accordance with this article, between an alleged or presumed father and the mother or child does not bar a petition under this Code section." OCGA § 19-7-43 (b) (Code Ann. § 74-304).
If § 19-7-24 (Code Ann. § 74-202) did not authorize contractual releases of illegitimates' support claims, then it does not conflict with § 19-7-43 (b) (Code Ann. § 74-304) and we are free both to invoke social policy and follow § 19-7-43 (b)'s (Code Ann. § 74-304) mandate, but if § 19-7-24 (Code Ann. § 74-202) did provide for such releases[3] then we are, as appellant contends, confronted with a new statute, enacted to provide an additional method of enforcing the duty of support established by a prior act, which appears to operate in a manner that impairs vested contractual rights incurred under the prior act. Enger v. Erwin, 245 Ga. 753 (267 SE2d 25) (1980); Todd v. Morgan, 215 Ga. 220 (190 SE2d 803) (1959); Bullard v. Holman, 184 Ga. 788 (2) (193 S.E. 586) (1937); Bank of Norman Park v. Colquitt County, 169 Ga. 534 (3) (150 S.E. 841) (1929). However, we need not address the retroactivity issue since as we find below § 19-7-24 (Code Ann. § 74-202) was never intended to allow parents of illegitimates to extinguish their support rights.
As it existed in 1974, OCGA § 19-7-24 (Code Ann. § 74-202) provided that "[t]his obligation shall be good consideration to support a contract by [the alleged father]. He may voluntarily discharge this duty; if he shall fail or refuse to do it, the law will compel him." This language does not expressly grant the father the right to bar further claims by his voluntary discharge, nor does it *733 expressly give the mother the capacity to waive the child's support rights. The social policy against such a bar is strong, and because the act lacks a clear expression on the subject we find against appellant. This is not the sole ground of our decision, however, since our conclusion is buttressed by unusually clear documentation of the statute's origins and the legislative intent behind its enactment.
OCGA § 19-7-24 (Code Ann. § 74-202) originated in the Code of 1863, § 1749.[4] Prior to that time the sole statutory expression of the putative father's duty to support was found in the old bastardy statute. Cobb's 1851 Digest, pp. 148-150 (former Code Ann. Ch. 74-3, repealed by Ga. L. 1973, p. 697). Under that statute an alleged father could be criminally prosecuted for failure to make a bond to support and educate his illegitimate child. To avoid public embarrassment the practice arose whereby the father privately agreed with the mother to pay child support either periodically or in lump sum if she would forebear from initiating bastardy proceedings. In the decade preceding the War Between the States there was, however, a serious question whether those contracts were supported by legal consideration so that they could be enforced by the mother or child against the alleged father. See 20 ALR3d 500, §§ 8-9.
This issue was brought before our Court in the case of Hargroves v. Freeman, 12 Ga. 342 (1852). Hargroves was a suit by an illegitimate child by her next friend against the executors of her putative father's estate, to enforce a promissory note he had made to avoid a bastardy proceeding. The executors defended on the ground that the consideration was insufficient to sustain the promise. On appeal the child's counsel, Thomas R. R. Cobb,[5] argued that the father's moral obligation to support his child was sufficient consideration to support the note. Justice Lumpkin, writing for the court, agreed in dictum that there was indeed a strong moral obligation but ultimately ducked that issue and bottomed his decision on the bastardy statute. He observed that the statute bound a father for the maintenance and education of his child, and a contract to discharge that obligation was thus supported by legal consideration, was not against policy, morals, or law, and was enforceable by the child.
*734 When the 1863 Code was compiled under Cobb's direction the Hargroves holding was incorporated into a new statute, § 1749.[6] That section spelled out two rules of law: first, the putative father had a legal obligation to support his child; second, he could legally contract to avoid prosecution to compel him to meet his duty, and the duty was legal consideration for the contract. The issue of whether these agreements could bar mothers or children from claiming child support over and above the contractually agreed sum formed no part of the historical context of the statute, nor the legislative intent it embodied.
We also find persuasive a comparison of § 1694 of the 1863 Code (OCGA § 19-6-8 (Code Ann. § 30-211) in its present form) to § 1749. Section 1694 allowed a husband under certain circumstances to contract to discharge his spousal support obligations, and expressly provided that such an arrangement "shall be a bar to [his wife's] right to permanent alimony." Based on this comparison, we infer that if the legislature had intended that Code of 1863 § 1749 contracts could operate to extinguish the child's support rights, it would have included similar language in that statute.
Moreover we find that by 1974 the section of the statute concerning discharge of obligations had been repealed. Section 19-7-24 (Code Ann. § 74-202), former Code Ann. Ch. 74-3, and former Code Ann. § 74-9901 have been previously held to have formed an integrated statutory scheme to compel fathers to support their bastard issue. Tillman v. State, 249 Ga. 792 (294 SE2d 516) (1982); Washington v. Martin, 75 Ga. App. 466 (43 SE2d 590) (1947). Under the scheme, Ch. 74-3 provided the mechanism to compel the father to post a bond for support and education, § 74-9901 was the sanction he faced for failure to do so, and § 19-7-24 (Code Ann. § 74-202) was specifically designed as a means by which the father could avoid the *735 embarrassment and expense of a public proceeding. See Hargroves, supra at 350. Code Ann. Ch. 74-3 was repealed by Ga. L. 1973, p. 697, but § 19-7-24 (Code Ann. § 74-202) and § 74-9901 were left on the books. This Court has recently held that § 74-9901 necessarily fell when Ch. 74-3 was repealed, Tillman, supra; accord, Dunagan v. State, 163 Ga. App. 414 (294 SE2d 633) (1982), and we now find likewise with respect to § 19-7-24 (Code Ann. § 74-202) to the extent it may have allowed the father to end his obligations and the mother to waive her child's rights. We find additional evidence for this conclusion in the fact that the General Assembly deleted any reference to contracts when it rewrote the statute in 1979. Ga. L. 1979, p. 466. But see Fender v. Fender, 249 Ga. 765, 767 (294 SE2d 472) (1982).
For the reasons stated above, we hold that § 19-7-24 (Code Ann. § 74-202) as it stood in 1974 did not authorize the mother of an illegitimate infant to waive the infant's right to support, and conclude that where in connection with an illegitimate child's birth the mother and putative father enter into an agreement which by its terms waives the right to seek additional child support, and the contract is fully executed by the alleged father, the contract is nevertheless not effective for that purpose. In so ruling we expressly overrule Warner v. Burke, 137 Ga. App. 185, supra.
2) Division (1) of the Court of Appeals' opinion holds "that unless the plaintiff mother succeeds in having this settlement agreement held invalid for some other reason, full execution of it by the defendant by payment of the lump sum settlement bars any further claims which she may have against him." 162 Ga. App. 813, supra, at 814. This holding is over broad since the complaint in this case is limited to an OCGA Ch. 19-7, Art. 3 (Code Ann. § 74-301 et seq.) paternity claim and the effect the contract might have on other claims for support is not in issue. However, it should be noted that it is problematic whether any other civil actions for support would be available to mother or child. Thorpe v. Collins, 245 Ga. 77 (2), 80 (263 SE2d 115) (1980). But see Poulos v. McMahan, 250 Ga. 354 (2) (d) (297 SE2d 451) (1983); Cummings v. Carter, 155 Ga. App. 688 (272 SE2d 552) (1980); Warner v. Burke, 137 Ga. App. 185, supra. Contra, Simmons v. Chambliss, 128 Ga. App. 218 (196 SE2d 183) (1973). In any event we have held today that an illegitimate child cannot be barred from bringing an Article 3 paternity suit, and because the natural mother should be made a party to such a suit, OCGA § 19-7-44 (b) (Code Ann. § 74-305), we hold that notwithstanding a private contract to the contrary the natural mother is prevented neither from initiating, OCGA § 19-7-43 (a) (2), (b) (Code Ann. § 74-304), nor from participating as a party in an Article 3 action.
*736 Judgment reversed as to Division (1); judgment affirmed as to Divisions (2) and (3). All the Justices concur, except Gregory, J., not participating.
NOTES
[1] In 1974 the section read, "The father of an illegitimate child shall be bound to maintain him until said child reaches the age of 18, marries or becomes self-supporting, whichever comes first. This obligation shall be good consideration to support a contract by him. He may voluntarily discharge this duty; if he shall fail or refuse to do it, the law will compel him. Provided, however, that the Superior Court shall have the power, upon petition of the father, to require the mother of an illegitimate child to contribute to such support upon a determination that the financial circumstances of both the father and the mother are such that justice and equity require the mother to share in, or have responsibility for, such support." Ga. L. 1972, p. 494 (Code Ann. § 74-202).
This statute was amended by Ga. L. 1979, pp. 466, 494, so that it now provides that "Until majority, it is the joint and several duty of each parent of an illegitimate child to provide for the maintenance, protection, and education of the child, except to the extent that the duty of one parent is otherwise or further defined by court order."
[2] "Where the bastardy statute is silent on the question of settlement, the courts are in disagreement as to whether the mother can make a settlement with the alleged father which will bind all parties, including the child. The father of a legitimate child is not able to compromise his support obligation in this way. In the absence of statutory authority, the alleged father of the illegitimate child should not be able to either." Clark, supra at 173.
[3] Unlike legitimate children, at common law bastard issue had no right to support from their fathers; the legislature has given them this right. Clark, supra, at 173; 10 CJS 86, Bastards, § 18 (c). Because of the result we reach today we need not consider whether such a distinction would violate equal protection guarantees.
[4] "The father of a bastard is bound to maintain him. This obligation shall be good consideration to support a contract by him. He may voluntarily discharge this duty; if he fails or refuses to do it the law will compel him."
[5] Cobb occupies a unique position in the development of Georgia law. He served as Supreme Court Reporter from the 1849 to 1856 terms, and was chairman of the committee which drew up the first Georgia Code, the Code of 1863. The first Justice Lumpkin (the Hargroves opinion's author) was his father-in-law. Cobb became a brigadier general in the Confederate Army and was killed at the Battle of Fredericksburg. See McDonnell, A Note on the Georgia Contracts Code, 13 Ga. L. Rev. 449 (1979).
[6] Cobb also drew on the Hargroves holding to form the 1863 Code's section on consideration: "Considerations are distinguished into good and valuable. A good consideration is such as is founded on natural duty and affection, or on a strong moral obligation. A valuable consideration, is founded on money, or something convertible into money, or having a value in money, except marriage, which is a valuable consideration." OCGA § 13-3-41 (Code of 1863 § 2705) (Code Ann. § 20-303). One commentator has speculated that Cobb may have intended to adopt the Hargroves dictum so that a moral obligation without more would be good consideration, 13 Ga. L. Rev., supra, n. 3, at 465-467, but this interpretation has been rejected, Davis & Co. v. Morgan, 117 Ga. 504 (43 S.E. 732) (1903). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330156/ | 165 Ga. App. 504 (1983)
301 S.E.2d 683
GILBERT et al.
v.
POWELL; and vice versa.
64936, 64937.
Court of Appeals of Georgia.
Decided February 23, 1983.
Ronald G. Robey, for appellants.
David W. Pollard, for appellee.
McMURRAY, Presiding Judge.
John Broach Powell, an architect and owner of a duplex in midtown Atlanta entered into a renovation contract with a building contractor (Gilco Construction Company, d/b/a Gilbert and Associates). A duplex, owned by Powell, had been condemned as the result of a fire, and Powell was financing in part the renovation of the house through a program administered by the Atlanta Housing Authority (AHA). The parties entered into an AHA form contract (bid offer and acceptance) in which the amount of the original renovation work was for the lump sum price of $21,500. The purpose of this contract was to bring this fire damaged and condemned dwelling into compliance with the building code of the City of Atlanta. However, the parties entered an AIA (American Institute of Architects) form contract which provided "[t]he maximum cost to the Owner, including the Cost of the Work and the Contractor's Fee, is guaranteed not to exceed the sum of $21,500." This instrument dealt with the cost for changes, in the work on the subject premises as requested by the owner, by reference to cost changes, that is, both additions to and deletions from the original plans. As the work progressed the owner made changes and as the direct result of the changes in construction there were certain deletions of work including materials and labor which had been provided by the contract.
The contractor contends that the cost of extras or additions amounted to $30,758. The owner, however, contends that the reasonable value of such additional work including labor and materials is only $10,386 and that certain deletions would have cost the contractor approximately $9,000 if he had performed under the original contract, and therefore, there was virtually a set off of the cost of labor and materials involving the changes. After the *505 renovations were completed the owner provided the contractor with a list characterized as a "punch list" relative to alleged defects in construction and contends that the reasonable cost of correcting such deficiencies is $6,542.
The controversies thus arising between the parties resulted in a lawsuit between Gilbert, as plaintiff, and the defendant Powell in which the plaintiff seeks damages and a special lien (a claim of lien having been filed) by reason of the failure of the defendant to pay the plaintiff in full seeking judgment in personam in the amount of $38,249.07 and an interim judgment in the form of a special lien upon the property to foreclose the claim of lien upon the property. The AIA contract was attached in which the contractor would receive "Contractor's cost plus fifteen (15) per cent of the Contractor's cost," that is, the "actual cost to the Contractor plus fifteen (15) per cent," applying to both "deletions and/or additions" in the work. This contract referred to drawings, specifications, the city contract and the agreement.
The defendant was served under the long arm statute having left Atlanta for California. However, he answered, in substance, denying the claim including the claim of lien alleging the plaintiff breached the obligations of the contract for the labor and materials contending the maximum cost was to be $21,500. Admissions of the plaintiff were that his actual claim was in the reduced amount of $30,758.07. The plaintiff had executed a final contractor's affidavit acknowledging full and complete payment thus waiving any lien on the subject property amounting to estoppel to now claim a lien against the property. Plaintiff received payments totalling $25,751, consisting of $18,260 paid by defendant to plaintiff and $7,491 paid to plaintiff by the City of Atlanta. Plaintiff thus has been paid in full. Defendant also added that any indebtedness claimed had been off set by payments received, as well as a substantial expense and damage incurred by the defendant as the result of defective work, and plaintiff is indebted to the defendant in the amount of $3,036.83. By counterclaim the defendant sought this sum plus $10,000 expenses of litigation and attorney fees by reason of plaintiff's bad faith and stubborn litigiousness.
The original suit was filed on November 22, 1978, and after considerable discovery plaintiff amended his complaint setting forth in Count 1 the breach of contract and in Count 2 quantum meruit, filing same in court on April 21, 1981. In addition, plaintiff made a request to enter upon the premises for the purposes of discovery in order to inspect and photograph portions of the interior and exterior, filed July 31, 1981, said inspection and photography to be permitted on or before August 3, 1981. The defendant then filed objections to *506 the request to enter the premises, a motion in limine to exclude certain evidence and to strike Count 2 of the amended complaint (the quantum meruit action). After a hearing on August 7, 1981, the trial court denied plaintiff's motion to enter the premises, deferred action on the motion in limine and barred the parties from filing any other motions or amendments to pleadings whatsoever, without prior leave of the court. Thereafter, the court entered another order limiting the evidence on the trial of the case to the express written contract or contracts in this case.
The parties then stipulated and agreed to withdraw previous jury demands and submit the trial of the case to the court as to all issues without the intervention of a jury, and same was specially set down for trial on a certain date (April 5, 1982). After trial the court rendered its findings of fact with reference to the contentions of the parties and the undisputed fact that the owner paid to the contractor the total sum of $25,751. The contentions of the plaintiff is that the cost of the extras was $30,758 and that he was entitled to recover interest, as well as reasonable attorney fees and cost of litigation. The owner contends that the reasonable value of such additional work was only $10,386 and other deletions would have cost the contractor approximately $9,000 had he performed same under the original contract, and therefore, there was a virtual set off as to the cost of labor and materials. The plaintiff contractor had been presented a "punch list" which the defendant contends involved the reasonable cost of correcting deficiencies in the amount of $6,542. The court then considered, insofar as the contractor's claim is concerned, certain testimony and evidence, the same being a purported ledger sheet indicating purchase of materials, cost of labor and sub-contractor work which the plaintiff contends he normally kept in the regular course of business, setting forth that same was not supported by vouchers or other accounting. The court stated that by consent of the parties it had inspected the premises and found deficiencies, but the court "was not satisfied with reasonable certainty" as to the cost of correcting these deficiencies. The court then held the evidence was totally inadequate to support the claim for a number of reasons, including the failure to separate the costs of the materials in the contract work, a lack of competent evidence of cost of materials relating to the changes requested by the defendant and that an article of the contract specifically provided for detailed accounting, yet there is no accounting, detailed or otherwise. The court concluded that the evidence in compliance with the best evidence rule was sorely lacking and the court could not with reasonable certainty assess damages. The court then stated that it applied the elemental rule of the preponderance of the evidence (after considering "all evidence") *507 as defined in Code § 38-106 (now OCGA § 24-1-1, effective November 1, 1982) and determined in Code § 38-107 (now OCGA § 24-4-4, effective November 1, 1982). The court then held it was unconvinced by the greater weight of the evidence that the plaintiff is entitled to recover based upon the claim. As to the counterclaim defendant had failed to carry the burden on the issue of liability. Accordingly, judgment was entered in favor of the defendant and against the plaintiff on plaintiff's claim and in favor of the plaintiff on defendant's counterclaim.
In Case No. 64937 plaintiff appeals; in Case No. 64936 the defendant cross-appeals. Held:
1. The first enumeration of error is concerned with the trial court's denial of plaintiff's request to enter the premises. It is noted here that suit was originally filed on November 22, 1978. Plaintiff employed new counsel whose first notice of his appearance as counsel for plaintiff is dated March 12, 1981. It is this counsel who made the request to enter upon the premises filed July 31, 1981, which request was to enter the premises within three days and we note this was within several months of present counsel's first involvement. The complaint here is that a visit to the premises subject to this litigation was essential and that same was sought "at a date and time agreeable to the parties" (see plaintiff's brief). Nevertheless, it does not seem to have been agreeable to the defendant who filed objections thereto on August 5, 1981. Plaintiff now contends it was prejudicial and harmful error for the court to have denied plaintiff access to the premises.
Generally, in sustaining or overruling objections in interlocutory rulings this court will reverse only upon a showing of an abuse of discretion. See Johnson v. O'Donnell, 123 Ga. App. 375 (181 SE2d 291); Ambassador College v. Goetzke, 244 Ga. 322, 323 (1) (260 SE2d 27), and cases cited therein. We note here at that point in time the case was ready for trial, the parties having announced ready and the plaintiff failed to give proper notice for inspection of the premises with reference to them, but thereafter the case was not tried until April 5, 1982, and no other proper request was thereafter made for inspection. As plaintiff has failed to point out any evidence showing an abuse of discretion we find no merit in this complaint.
2. It is contended by brief that at a pretrial conference present counsel indicated a desire to submit evidence on quantum meruit. Thereafter the complaint was amended to include a separate count (Count 2) for quantum meruit on April 21, 1981. We note here that the plaintiff, in Count 1 of the amended complaint, set forth a breach of the contract of renovation by the defendant. On motion to strike this amendment it was sustained, and the court set forth that the evidence should be limited at trial to the express written contract or *508 contracts in the case. The contract made for Atlanta Housing Authority placed a ceiling on the renovation work at $21,500, yet the parties prepared the AIA contract to deal with the cost for changes in the work on the subject premises as requested by the owner, that is, with requested cost changes both additions to and the deletions from the original plans. Quantum meruit (as much as the pleader deserved) or quantum valebant (as much as the work was worth) involves assumpsit, that is, the implied promise to pay for work and labor or goods sold and delivered. If there exists a written contract which is broken, one of the remedies for the breach is quantum meruit, that is, in treating the contract as rescinded. See Code § 4-215 (now OCGA § 10-6-37, effective November 1, 1982) or under Code § 3-107 (now OCGA § 9-2-7, effective November 1, 1982). See Redman Dev. Corp. v. Pollard, 131 Ga. App. 708, 710 (2) (206 SE2d 605). In filing suit the plaintiff was authorized to cast his petition in two counts, that is, one on express contract and one on quantum meruit. See Orkin Exterminating Co. v. Dauer, 146 Ga. App. 61, 62 (2) (245 SE2d 320), but having acknowledged in Count 2 the express written contract pleaded in Count 1, we find no error with the striking of the Count 2 and requiring the plaintiff to proceed on the written contract which clearly involved all changes (additions and deletions in the contract), the uncontroverted evidence showing the issue involved here was over and above the original contract price of $21,500 but fully covered in the AIA contract. In Conway v. Housing Auth. of the City of Atlanta, 102 Ga. App. 333, 335 (116 SE2d 331), involving an action for extra work (quantum meruit, that is, an implied promise to pay the reasonable value of the work as raised by operation of law) extra work was necessary for the proper performance of the original contract which was not therein provided for; whereas, in the case sub judice, the original written contract clearly covered all extra work and no action with reference to quantum meruit was necessary and in no way was the plaintiff prevented from producing evidence with reference to same. As the written contract here covered any and all changes in the original plans and specifications, all extra labor and materials in the improvement of property (the nature of quantum meruit, implied contract) was fully covered by the written contract. In no way could the plaintiff have elected to have relied on implied contract as opposed to his express contract. See in this connection Willis v. Kemp, 130 Ga. App. 758, 760 (204 SE2d 486); Orkin Exterminating Co. v. Evans Implement Co., 131 Ga. App. 502 (206 SE2d 107); Seaboard Air-Line R. Co. v. Henderson Lumber Co., 28 Ga. App. 391 (111 S.E. 220). The entire agreement having been covered in the written contract there was simply no other evidence which could be offered in support of a quantum meruit theory. Further, the *509 plaintiff has failed to point out what the evidence or testimony would have been or which he could have offered with reference to the theory of quantum meruit. We find no reversible error in the trial court requiring that the evidence in the case be limited "to the express written contract or contracts in this case."
3. Plaintiff's remaining enumeration of error contends that the trial court erred in its findings of fact and conclusions of law in finding that ledger entries (business records) were not supported by vouchers or other accounting and in concluding there was insufficient evidence to support the cost of extra work ordered by the plaintiff and performed by the defendant. The trial court considered the ledger sheet indicating the purchase of materials, the cost of labor, and subcontractor work; and then set forth that same was not supported by vouchers or other accounting and that the contract specifically provided for detailed accounting which was not available. Then as to the assessment of damages the court held that in compliance with the best evidence rule it could not with reasonable certainty assess same. However, the court set forth that it had considered all evidence and after applying the elemental rule of "preponderance" as defined in the statute the court was unconvinced by the greater weight of the evidence that the plaintiff was entitled to recover. The court, as trier of fact, weighed the evidence and found it wanting, refusing to make an award in favor of the plaintiff. We find no reversible error here.
4. With reference to the counterclaim counsel for defendant argues at great length that the trial court was in error in its conclusion, in considering the evidence, that it was not satisfied with reasonable certainty as to the cost of correcting certain deficiencies (not spelled out) as noted by the court in visiting the subject property and inspecting the alleged defects. Counsel argues that the court had applied the reasonable doubt rule in lieu of the preponderance of the evidence rule at issue in civil cases. Nevertheless, the court here clearly stated it was applying the elemental rule of "preponderance" and as to the defendant's counterclaim "the counterclaimant has not carried the burden on the issue of liability." While, as argued by the defendant that the evidence as to the existence and cost of correcting defective workmanship was sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other, the court elected to find against the defendant on the counterclaim. The trial court, as trier of fact, was authorized to find in favor of the plaintiff with reference to same. We cannot hold that the findings of the court (without a jury) were wholly unsupported or clearly erroneous which would be necessary as a basis for reversal. See American Century Mtg. Investors v. Strickland, 138 Ga. App. 657, 659-661 (1) (227 SE2d *510 460); Evans v. Marbut, 140 Ga. App. 329, 332 (231 SE2d 94). The court having weighed the evidence in accordance with the preponderance of the evidence rule, the mere finding of the court as to deficiencies was not a finding that they involved the original scope of the work or were the result of inadequate or defective maintenance during some 3 1/2 years since the original contract was performed, and same may have been the result of additional work performed by the defendant. Further, the defendant had certified that all the work covered by the plans and specifications had been completed in accordance with these documents to his personal satisfaction. Under the any evidence rule we find no merit in either of the defendant's enumerations of error.
Judgment affirmed. Banke and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262750/ | 84 Cal. Rptr. 2d 135 (1999)
71 Cal. App. 4th 803
PAYKAR CONSTRUCTION, INC., Plaintiff and Appellant,
v.
G. David BEDROSIAN et al., Defendants and Respondents.
No. B119427.
Court of Appeal, Second District, Division Four.
April 27, 1999.
Rehearing Denied May 19, 1999.
Review Denied July 28, 1999.
*136 Baker, Olson, LeCroy & Danielian, Michael S. Simon and Eric Olson, Los Angeles, for Plaintiff and Appellant.
Carlos A. Lloreda, Jr.; and James R. Balesh, Los Angeles, for Defendants and Respondents.
HASTINGS, J.
Plaintiff and appellant Paykar Construction, Inc. appeals from a post-judgment order denying its motion to determine fair market value in connection with a judicial foreclosure. The sole issue on appeal is whether the three-month period to file the motion pursuant to Code of Civil Procedure section 726, subdivision (b) begins when the foreclosure sale occurs or when the certificate of sale is recorded. .We conclude that the three-month period begins when the highest bid is made at the sheriffs auction, and affirm.
FACTS
In 1991 G. David Bedrosian and Mardiros Mihranian executed a $190,000 promissory note in favor of appellant, secured by trust deeds on homes they owned with their wives. The Bedrosians' home is in La Canada and the Mihranians' home is in Glendale.
Bedrosian and Mihranian later defaulted on the note. After appellant elected to declare the entire balance due, Bedrosian and Mihranian executed an amendment to the promissory note providing that they would pay $25,000. The check they gave appellant bounced.
In 1992 appellant filed a complaint for judicial foreclosure against the Bedrosians and the Mihranians, and appellant recorded a lis pendens.
A year and a half later, the trial court entered a judgment decreeing that the Glendale property securing the promissory note be sold and the proceeds applied to satisfy the amounts due under the note.
The property was sold for $200 on May 21, 1997.
The sheriff executed a certificate of sale of the Glendale property on June 2,1997, and it was recorded in the Los Angeles County Recorder's Office on June 5,1997.
On September 5, 1997, appellant filed a motion to determine the fair value of the sold property and for a deficiency judgment.
The trial court denied appellant's motion without prejudice, and announced that it would consider a refiled motion as being filed on the date of the original motion, September 5. Appellant subsequently filed a renewed motion. Appellant argued that the sale of the Glendale property was not complete until the certificate of sale was recorded, and hence that his motion was filed within the three-month period of section 726, subdivision (b).
The court denied appellant's renewed motion, finding that the three-month rule of section 726, subdivision (b) runs from the date of sale. The court wrote in its minute order, "There are no exceptions to this statute, and the court has no discretion in this matter."
DISCUSSION
As we have stated, the sole issue on appeal is when the three-month period to bring a motion under subdivision (b) of section 726 begins to run. We review this issue de novo *137 because it is a purely legal question and involves no disputed facts. (See Edgemont Community Service Dist. v. City of Moreno Valley (1995) 36 Cal. App. 4th 1157, 1166, 42 Cal. Rptr. 2d 823.)
Subdivision (b) of section 726 states in pertinent part: "The decree for the foreclosure of a ... deed of trust secured by real property ... shall declare the amount of the indebtedness ... and ... shall determine the personal liability of any defendant for the payment of the debt secured by the ... deed of trust and shall name the defendants against whom a deficiency judgment may be ordered.... In the event that a deficiency is not waived or prohibited and it is decreed that any defendant is personally liable for the debt, then upon application of the plaintiff filed at any time within three months of the date of the foreclosure sale and after a hearing thereon at which the court shall take evidence and at which hearing either party may present evidence as to the fair value of the real property ... sold as of the date of sale, the court shall render a money judgment against the defendant or defendants for the amount by which the amount of the indebtedness with interest and costs of levy and sale and of action exceeds the fair value of the real property ... sold as of the date of sale." (Italics added.)
In other words, subdivision (b) of section 726 requires a plaintiff to apply for a determination of the fair value of the property sold as a result of a judicial foreclosure within three months from the date of sale. The question is what does "date of the foreclosure sale" refer to: when the sheriff sells the property, referred to by appellant as the "falling of the Sheriffs hammer," or when the sheriffs certificate of sale is recorded, as appellant urges.
"`In construing statutes, we must determine and effectuate legislative intent.' [Citation.] `To ascertain intent, we look first to the words of the statutes' [citation], `giving them their usual and ordinary meaning' [citation]. If there is no ambiguity in the language of the statute, `then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.' [Citation.] `Where the statute is clear, courts will not "interpret away clear language in favor of an ambiguity that does not exist." [Citation.]' [Citation.]" (Lennane v. Franchise Tax Bd. (1994) 9 Cal. 4th 263, 268, 36 Cal. Rptr. 2d 563, 885 P.2d 976.)
The statute uses the word "sale," which is defined in Black's Law Dictionary (6th ed.1990) as: "A contract between two parties, called, respectively, the `seller" (or vendor) and the `buyer" (or purchaser), by which the former, in consideration of the payment or promise of payment of a certain price in money, transfers to the latter the title and the possession of property." The "sale" is thus the formation of the binding contract to sell the property, "when the hammer falls."
This is confirmed in a case analogous to ours, San Paolo U.S. Holding Co. v. 816 South Figueroa Co. (1998) 62 Cal. App. 4th 1010, 73 Cal. Rptr. 2d 272. The issue there was determination of the "fair value" of the property pursuant to section 726, subdivision (b). The lender contended that the language of subdivision (b) required that "fair value" be determined as of the actual date of the foreclosure sale, January 17,1996. The borrower contended the court should look to August 24, 1995, the date the trial court entered an order for summary judgment in the matter. The court of appeal concluded that the language of subdivision (b) required that the date of the actual foreclosure sale be used to value the property.
"`The method of sale is through the execution of a writ of sale. [Citations.] The sale is at auction to the highest bidder... and terminates upon acceptance of the last and highest bid or when the sale proceeds are sufficient to satisfy the money judgment (i.e., the debt). [Citation.]
"`If the sale proceeds are insufficient to satisfy the amount of the indebtedness, then the creditor may apply to the court within three months of the date of the sale for a deficiency judgment subject to the "fair value" limitation of section 726.' (Coppola v. Superior Court (1989) 211 Cal. App. 3d 848, 867-868, 259 Cal. Rptr. 811.)" (San Paolo U.S. Holding Co. v. 816 South Figueroa Co., supra, 62 Cal.App.4th at p. 1022, 73 Cal. Rptr. 2d 272.)
*138 The nonjudicial foreclosure statute provides that a sale "shall be deemed final upon the acceptance of the last and highest bid, and shall be deemed perfected as of 8 a.m. on the actual date of sale if the trustee's deed is recorded within 15 calendar days after the sale, or the next business day following the 15th day if the county record in which the property is located is closed on the 15th day." (Civ.Code, § 2924h, subd. (c); italics added.) Since the Legislature has reasoned that each type of foreclosure sale is to be effected at an auction to the highest bidder (Code Civ. Proc, § 701.570, subd. (b); Civ.Code, § 2924g, subd. (a)), it is reasonable to conclude, as we do, that the Legislature intended that a judicial foreclosure sale, like its cousin, be considered final at the time of the actual sale.
Appellant argues that to interpret the word "sale" as an event occurring at the time of the auction would create a forfeiture against him and a windfall for respondents, and that we should engraft an equitable tolling doctrine in his aid. In support of this argument, he cites Addison v. State of California (1978) 21 Cal. 3d 313, 320-321, 146 Cal. Rptr. 224, 578 P.2d 941, quoted in Stalberg v. Western Title Ins. Co. (1994) 27 Cal. App. 4th 925, 932, 32 Cal. Rptr. 2d 750, and Bollinger v. National Fire Ins. Co. (1944) 25 Cal. 2d 399, 410, 154 P.2d 399, quoted in Elkins v. Derby (1974) 12 Cal. 3d 410, 420, footnote 9, 115 Cal. Rptr. 641, 525 P.2d 81.[1] Quoting Addison, the Stalberg court held that a "plaintiff will be relieved `from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage.' [Citation.]" (Stalberg v. Western Title Ins. Co., supra, 27 Cal.App.4th at p. 932, 32 Cal. Rptr. 2d 750.)
None of the cases appellant cites involves antideficiency statutes.[2] The Legislature has declared its intention "to limit strictly the right to recover deficiency judgments."[3] (Union Bank v. Wendland (1976) 54 Cal. App. 3d 393, 406, 126 Cal. Rptr. 549; Roseleaf Corp. v. Chierighino (1963) 59 Cal. 2d 35, 40, 27 Cal. Rptr. 873, 378 P.2d 97.) Given this legislative intent, we construe Code of Civil Procedure section 726, subdivision (b) as requiring a creditor to apply for a fair value determination within three months from the date when the sale is effected, i.e., when the highest bid is received at the auction.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
EPSTEIN, Acting P.J., and CURRY, J., concur.
NOTES
[1] On the page cited by appellant, Elkins quotes Bollinger as stating that the California Supreme Court "`has shown itself ready to adopt rules of procedure to serve the ends of justice where technical forfeitures would unjustifiably prevent a trial on the merits.'"
[2] Addison concerns a complaint for defamation, abuse of process and conversion (Addison v. State of California, supra, 21 Cal.3d at pp. 316-317, 146 Cal. Rptr. 224, 578 P.2d 941), Bollinger concerns an action to recover on an insurance policy (Bollinger v. National Fire Ins. Co., supra, 25 Cal.2d at p. 401, 154 P.2d 399), Elkins concerns a personal injury complaint (Elkins v. Derby, supra, 12 Cal.3d at p. 413, 115 Cal. Rptr. 641, 525 P.2d 81), and Stalberg concerns a slander of title complaint (Stalberg v. Western Title Ins. Co., supra, 27 Cal.App.4th at p. 929, 32 Cal. Rptr. 2d 750).
[3] California's antideficiency statutes (Code Civ. Proc, §§ 580b, 580d and 726) "restrict a creditor's right to enforce a debt secured by a deed of trust on real property.. .. Section 726 embodies the `one-action rule' which requires that a creditor look first to the security before attempting to obtain a personal judgment against the debtor. If the security is insufficient, the creditor's right to a `deficiency' judgment against the debtor is governed by sections 580b and 580d. [Citation.] Section 580b bars a deficiency judgment after foreclosure of a purchase money mortgage in specified instances; section 580d bars a deficiency judgment on a note after sale under power of sale in the deed of trust." (Evans v. California Trailer Court, Inc. (1994) 28 Cal. App. 4th 540, 549-550, 33 Cal. Rptr. 2d 646.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264977/ | 619 A.2d 1175 (1993)
STATE of Delaware, Plaintiff and Appellant Below, Appellant,
v.
Billy J. GUTHMAN, Defendant and Appellee Below, Appellee.
Supreme Court of Delaware.
Submitted: December 1, 1992.
Decided: February 24, 1993.
Carole E.L. Davis, Deputy Atty. Gen., Dept. of Justice, for plaintiff and appellant below, appellant.
Thomas V. McCoy, Wilmington, for defendant and appellee below, appellee.[1]
Before VEASEY, C.J., HORSEY and MOORE, JJ.
*1176 HORSEY, Justice:
This appeal presents a question of jurisdiction whether a Justice of the Peace has the power and authority, inherent if not express, to reopen a criminal proceeding on timely application and for good cause shown, following its dismissal, with or without prejudice. The State appeals the Superior Court's affirmance of a Justice of the Peace (hereafter "magistrate") ruling that a magistrate's dismissal of criminal charges divests the court of jurisdiction to review its decision for fundamental error. We reverse. We hold that a magistrate has the jurisdiction, power and authority to reopen, on timely application and for good cause shown, a dismissal of a criminal proceeding, whether entered with or without prejudice. We hereby overrule all Superior Court rulings to the contrary, including Thomas v. Rowe, Del.Super., C.A. No. 84M-MY-26, Gebelein, J. (Jan. 28, 1985), holding that the Justice of the Peace Court, upon entry of an order of dismissal of criminal charges, loses jurisdiction to review the matter unless the order of dismissal has been expressly entered as being "without prejudice."
I
The appeal stems from the traffic arrest of defendant-below Billy J. Guthman ("Guthman"). On May 27, 1991, Guthman was arrested for driving while under the influence in violation of 21 Del.C. § 4177 and for driving while his license was suspended in violation of 21 Del.C. § 2756(a).[2] On June 14, 1991, Guthman appeared unrepresented for arraignment in Justice of the Peace Court No. 3 (hereafter "Court No. 3"), pled not guilty to the charges and executed a waiver of his right to have the case transferred to the Court of Common Pleas for trial before a law-trained judge. See 11 Del.C. § 5303; Shoemaker v. State, Del.Supr., 375 A.2d 431 (1977); J.P.Crim.R. 6.
Thereafter Guthman retained an attorney, who contacted the Deputy Attorney General (hereafter "Deputy" or "the State") responsible for the case. On June 19, 1991, defense counsel served on the State a discovery request captioned for a case in the Court of Common Pleas. Aware of the discrepancy in the caption, the State contacted defense counsel to inquire whether the case was to be transferred. Defense counsel confirmed to the Deputy that Guthman would be transferring the case to the Court of Common Pleas, but had not yet done so.
In August, Court No. 3 scheduled the case for trial September 6, 1991 at 9:00 a.m.; and the court so notified in writing defense counsel, defendant, the Deputy and the arresting officer. Apparently once again, the State contacted defense counsel as to where the trial would take place; and Guthman's attorney assured the State that the matter would shortly be transferred to the Court of Common Pleas. Relying upon this representation, the Deputy noted a change of venue on her trial calendar, and presumably disregarded the court notice.
On September 6, Guthman and his attorney appeared for trial in Court No. 3, but the Deputy did not appear. After waiting *1177 about thirty-five minutes, the magistrate and defense counsel had the following exchange in open court:
Court (To defense counsel): Let me ask you one question. Have you been in contact with the attorney general's office[?]
Defense Counsel: The only thing I've had contact with them is to get a copy of the police report.
Court: O.K. You had not had any discussions with Ms. Davis or anyone in there as far as continuing the case or anything.
Defense Counsel: No.
Court: O.K. The record will indicate that the attorney general's office was notified of the time of trial and since they have failed to appear, I can assume nothing other than they do not wish to prosecute Mr. Guthman. Therefore, the charges against Mr. Guthman are dismissed. His bond is discharged and he is free to go.[3]
A short time later the same day, Guthman's attorney telephoned the Deputy assigned to the case and informed her that the charges against Guthman had been dismissed.
On September 8, 1991, a clerk of Court No. 3 first discovered a letter, dated September 3rd, postmarked September 4th, from defense counsel to the court requesting that the case be transferred to the Court of Common Pleas. (The letter bore no date stamp as to when it had been received by the Clerk's Office.) Within seven days of the dismissal, the State, on September 13th, moved in Court No. 3 for reargument or reconsideration. On September 18, the magistrate, noting that neither statute nor court rule expressly provided for reargument, set the matter for hearing on October 2 on "jurisdiction."[4]
Following argument on October 2, the magistrate concluded that the court had not relinquished jurisdiction of the case on September 6 and that it had properly dismissed the matter. The magistrate so ruled in a written decision dated October 3, 1991. The following day, the State docketed an appeal in Superior Court seeking an order vacating the magistrate's dismissal. By unreported decision of March 19, 1992, Superior Court denied the State's motion to vacate and affirmed the magistrate's ruling. State v. Guthman, Del.Super., C.A. No. 91-10-0000A, 1992 WL 68926 Graves, J. (March 19, 1992). The State then docketed this appeal of right under 10 Del.C. § 9902(a).
II
We find the determinative question below not to have been, as the parties and the court found, whether the magistrate abused his discretion in denying the State's motion to reinstate the prosecution against Guthman. Rather, the question is whether the magistrate retained jurisdiction following dismissal of the proceeding to set it aside, for good cause shown. So framed, the question presented is one of law, which is subject to plenary or de novo review by this Court. Waggoner v. Laster, Del. Supr., 581 A.2d 1127, 1132 (1990); Fiduciary Trust Co. v. Fiduciary Trust Co., Del. Supr., 445 A.2d 927, 930 (1982).
III
The magistrate, in ruling that the court lacked jurisdiction to set aside its dismissal, even for good cause shown, relied upon Thomas v. Rowe, supra. Superior Court similarly concluded that the magistrate lacked authority to review a timely filed motion for reargument/reconsideration of *1178 his dismissal of criminal charges. The court stated:
[T]he Justice of the Peace Court may not set aside a dismissal of an action before it. Thomas v. Rowe, supra, at 3-4. This is because the granting of a motion to dismiss constitutes a dismissal with prejudice. State v. Fisher [Fischer], [Del.Supr., 285 A.2d 417, 421 (1971)].... Thus, the Justice of the Peace Court could do nothing more once the case was dismissed. A subsequent motion for reargument could not have been entertained, and any decision after the dismissal is void.
Guthman, slip op. at 9. We disagree. We hold that the Superior Court erred as a matter of law in ruling that the Justice of the Peace Court, having dismissed the charges without reserving jurisdiction, lost jurisdiction to entertain a timely filed motion that the dismissal had been improvidently entered.
IV
Superior Court has misread and misapplied this Court's decision in Fischer in ruling that a dismissal of a complaint under J.P.Crim.R. 29(b) must be presumed to be a dismissal with prejudice, unless otherwise stated in the order of dismissal. In Fischer, the order of dismissal was entered under Super.Ct.Crim.R. 48(b) upon a finding of unnecessary delay in bringing the defendant to trial.[5] Under those circumstances, this Court ruled that it was "necessarily implied from the opinion below that the order was entered `with prejudice.'" Id. at 420. Here, the magistrate made no such finding and no presumption of prejudice may be implied. Thus, the presumption of Fischer does not extend to a dismissal of a complaint under J.P.Crim.R. 29(b) and under the circumstances of this case. We overrule Thomas v. Rowe insofar as it holds, through a misapplication of Fischer, 285 A.2d at 420, that an order of dismissal is not subject to review by a magistrate after entry because it is deemed to be a dismissal with prejudice, resulting in the court's irrevocable loss of jurisdiction.
While a Justice of the Peace Court is a court of limited jurisdiction, within the jurisdiction conferred the court has the same inherent powers of any other constitutional court to grant relief from a judgment or order, for good cause shown. Del. Const., Art. IV, § 1 (1987); see also Shoemaker, 375 A.2d at 439 n. 12; Farrell v. Maryland Credit Financial Corp., Del.Super., 127 A. 879, 880 (1924); 20 Am.Jur.2d Courts § 79 (1965). It is a basic principle of jurisprudence that courts are generally afforded inherent powers to undertake whatever action is reasonably necessary to ensure the proper administration of justice. See 20 Am.Jur.2d Courts § 79. This Court has consistently held that Delaware courts have the inherent power to vacate, modify or set aside their judgments or orders. Tyndall v. Tyndall, Del.Supr., 214 A.2d 124, 125 (1965); see also Lyons v. Delaware Liquor Comm'n, Del.Gen.Sess., 58 A.2d 889, 895 (1948); Tweed v. Lockton, Del.Super., 167 A. 703, 704-05 (1933).
The magistrate's inherent authority to reopen final judgments for good cause shown is implicit in various powers expressly granted to the magistrates. In criminal matters the inherent power to dismiss a case for want of prosecution is expressly recognized by Rule 29(b). See Fischer, 285 A.2d at 421. After final judgment is entered, a magistrate is expressly empowered to correct or reduce a sentence, J.P.Crim.R. 23, and to rectify clerical mistakes, J.P.Crim.R. 24. Likewise, in civil matters a magistrate may amend final judgments upon his or her own initiative or at the motion of one of the parties, as well as for clerical error, mistake, fraud, misrepresentation or newly discovered evidence. J.P.Civ.R. 20.
Recognizing the impracticability of delineating all the inherent powers possessed by the Justice of the Peace Courts, the drafters *1179 of the Justice of the Peace Court's criminal rules explicitly granted the magistrates all the inherent powers afforded other constitutional courts in a catch-all rule. See J.P.Crim.R. 33. Under Rule 33, in the absence of a specific procedure, a Justice of the Peace Court "may proceed in any lawful manner not inconsistent with these Rules or any applicable statute." Id. Rule 33 confers upon a magistrate flexible and broad discretion needed by a court to ensure that justice is served.
Federal authority is consistent with our holding that the Justice of the Peace Court can reconsider a case on timely application even after it has been dismissed with prejudice. Decisions of the United States Supreme Court recognize the inherent power of a federal court to vacate, even out of time, its own judgment for fundamental error, i.e., upon proof of fraud perpetrated upon the court. See Chambers v. NASCO, Inc., ___ U.S. ___, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (party entered a fraudulent transaction and filed fraudulent pleadings with assistance of counsel), reh'g denied, ___ U.S. ___, 112 S. Ct. 12, 115 L. Ed. 2d 1097 (1991); Universal Oil Prod. Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S. Ct. 1176, 1179, 90 L. Ed. 1447 reh'g denied, 329 U.S. 823, 67 S. Ct. 24, 91 L. Ed. 700 (1946); Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S. Ct. 997, 88 L. Ed. 1250 (appellate court has power to set aside a nine year old judgment which was fraudulently obtained), reh'g denied, 322 U.S. 772, 64 S. Ct. 1281, 88 L. Ed. 1596 (1944). In Hazel-Atlas Glass, the Supreme Court held that a court could set aside or alter final judgments under certain circumstances, one of those being after-discovered fraud. Id. 322 U.S. at 244, 64 S. Ct. at 1000. The Supreme Court explained that:
[T]ampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society.... The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.
Id. at 246, S.Ct. at 1001. While Hazel-Atlas Glass was a civil action in equity, the concepts and principles there articulated are equally applicable in the criminal context.
In sum, we hold that the Superior Court committed error of law, as did the magistrate, in concluding that the magistrate lacked jurisdiction to review a timely filed motion for reconsideration of a dismissal of criminal charges. We further rule that the Justice of the Peace Court may, in the reasonable exercise of its discretion, timely reconsider a criminal matter even if dismissed with prejudice. The authority of a magistrate to so act is rooted in a court's inherent authority to reopen a judgment on timely application for good cause shown, or out of time for fraud, misrepresentation or misconduct of an adverse party or other similar grounds.
Regrettably, we must also conclude that this case would never have been dismissed in the first place if trial counsel for defendant had fulfilled her duty as an officer of the court. The record compels a finding that defense counsel was not forthright with the court in failing to disclose to the court her previous contacts and communications with the Deputy with regard to the trial of the case. An attorney, acting as an officer of the court, has a duty to respond with complete candor to court inquiries. See Delaware Lawyers' Rules of Professional Conduct, Rule 3.3. Counsel may not, knowingly or otherwise, engage in conduct which may reasonably be perceived as misleading either to the court or to opposing counsel.
* * * * * *
REVERSED and REMANDED for reinstatement of the charges and for further proceedings consistent herewith.
NOTES
[1] Counsel did not represent defendant below.
[2] Originally Guthman was charged with a third offense of driving with expired insurance in violation of 21 Del.C. § 2118(o). This charged was dropped, however, after Guthman later produced proof of insurance.
[3] Although it is unclear from this statement, we presume that the Justice of the Peace dismissed these charges pursuant to the authority granted under Justice of the Peace Criminal Rule 29(b). This rule provides:
(b) Dismissal by Court. If there is unnecessary delay in bringing the defendant to trial the Court may dismiss the complaint.
J.P.Crim.R. 29(b). Notably, the court's dismissal was not based explicitly on a finding of "unnecessary delay." See Super.Ct.Crim.R. 48(b).
[4] The court apparently scheduled the hearing to determine whether the court, in light of the pretrial request of Guthman to transfer the case to the Court of Common Pleas, had jurisdiction to enter its order of dismissal on September 6th.
[5] Superior Court Criminal Rule 48(b) provides, in pertinent part:
Rule 48. DISMISSAL
(b) By Court... if there is unnecessary delay in bringing a defendant to trail, the court may dismiss the indictment, information or complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724756/ | 289 So. 2d 6 (1973)
Daniel OSMAN, M.D., Petitioner,
v.
Gladys J. OSMAN, Respondent.
No. 44262.
Supreme Court of Florida.
December 20, 1973.
Rehearing Denied February 13, 1974.
Certiorari denied. 280 So. 2d 67.
CARLTON, C.J., and ROBERTS, ADKINS and BOYD, JJ., concur.
McCAIN, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743453/ | 511 So. 2d 248 (1987)
Ex parte David Larry NELSON.
(Re: David Larry Nelson
v.
State).
86-528.
Supreme Court of Alabama.
July 10, 1987.
William M. Dawson, Birmingham, for petitioner.
Don Siegelman, Atty. Gen. and Helen P. Nelson and William D. Little, Asst. Attys. Gen., for respondent.
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
BEATTY, Justice.
Having considered the record and briefs in this case, 511 So. 2d 225 (Ala.Cr.App. 1986), the Court holds that the judgment of the Court of Criminal Appeals must be, and it is hereby, affirmed.
AFFIRMED.
MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312886/ | Manish S. Shah, United States District Judge
Alea Group Limited provided reinsurance to Legion Indemnity Company. Shortly after the terms of their agreements ended, Legion entered liquidation proceedings and the respondent (the Director of Insurance of the State of Illinois) was appointed as liquidator. Petitioner Catalina Holdings (Bermuda) Limited bought Alea. Many years later, the Director sent Catalina an offer to settle an outstanding balance that she said had resulted from claims ceded under the original agreements between Alea and Legion. When Catalina refused to pay, the Director initiated arbitration, citing arbitration clauses in the old reinsurance agreements. Catalina filed counterclaims before the arbitrators for unpaid premiums and attorney's fees, and the panel ruled in Catalina's favor. Catalina then filed a petition to confirm *690the panel's award. The Director moves to dismiss.
I. Legal Standards
A complaint must contain a short and plain statement of factual allegations that plausibly suggest a right to relief. Ashcroft v. Iqbal , 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Fed. R. Civ. P. 8(a)(2). In ruling on a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), I must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the non-moving party. Ezekiel v. Michel , 66 F.3d 894, 897 (7th Cir. 1995). I am not limited to the jurisdictional allegations of the complaint and may "view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. F.D.I.C. , 999 F.2d 188, 191 (7th Cir. 1993). "At each stage of the jurisdictional analysis, the plaintiff bears the burden of proof." Glaser v. Wound Care Consultants, Inc. , 570 F.3d 907, 913 (7th Cir. 2009).
II. Facts
Alea Group Limited provided reinsurance to Legion Indemnity Company during the early 2000s. [25-2] at 3-4.1 Some of their reinsurance agreements required that certain disputes be arbitrated "in accordance with the rules and procedures established by the Uniform Arbitration Act as enacted in Pennsylvania." [22-3] at 28; 54-55; 73-74. Legion ceded claims to Alea pursuant to the agreements during the early 2000s, but Legion eventually stopped communicating with Alea. [25-2] at 4. Catalina (a Bermuda company with its principal place of business in the United Kingdom) bought Alea and assumed responsibility for the relevant reinsurance agreements in 2013. Id. at 2 n2.
As it turns out, Legion had run into financial trouble. It was placed into conservatorship in 2002 and entered liquidation proceedings in 2003. [25-1] at 3; [25-2] at 4; [19-2] § D. The Illinois Director of Insurance was appointed as liquidator shortly thereafter. Id. According to the Director, both before and during the liquidation proceedings, claims continued to cede to Catalina. [19] at 4. In 2014, the Director sent Catalina a commutation offer reflecting a balance owed of roughly $ 1 million. [25-2] at 4. According to Catalina, this was the first time they had received any communications regarding Alea's reinsurance contracts with Legion since 2003. Id. When Catalina declined to pay, the Director demanded arbitration. [25-1] at 4. Catalina counterclaimed in the arbitration proceedings for unpaid premiums and attorneys' fees and costs. [25-2] at 10.
The parties agreed to hold arbitration hearings in Chicago, id. n.11, and those hearings took place before a panel of arbitrators during the summer of 2018. [25] at 3, [25-3]. The panel ultimately awarded Catalina $ 76,602.63 in unpaid premiums and $ 437,501.04 in attorneys' fees and costs. [25] at 3-4.2 That amount was to be *691offset against future amounts that the Director might bill Catalina, or that might qualify for distribution in accordance with Illinois's liquidation statutes. [19] at 10-11 n.3. Catalina filed this petition to confirm the award, citing the Federal Arbitration Act, 9 U.S.C. § 9, and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. § 201 et seq. [1]. The Director filed a motion to dismiss or stay the petition, citing Federal Rule of Civil Procedure 12(b)(1), reverse preemption under the McCarran-Ferguson Act, and abstention under Burford v. Sun Oil Co. , 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). [19].
III. Analysis
A. Subject Matter Jurisdiction & Choice of Law
The Convention governs my review of the petition, not the Pennsylvania Uniform Arbitration Act. The arbitration clause dictated the rules and procedures that governed the arbitration proceeding-not my review of the arbitrator's award. See, e.g. , [22-3] at 28 ("the arbitration will be in accordance with the rules and procedures established by the Uniform Arbitration Act as enacted in Pennsylvania"); Generica Ltd. v. Pharm. Basics, Inc. , 125 F.3d 1123, 1125, 1129 (7th Cir. 1997) (applying 9 U.S.C. §§ 201 et seq. when reviewing arbitral award issued pursuant to an arbitration clause that called for the agreement to be interpreted "in accordance with English law").
I have jurisdiction over the petition. The arbitration agreement arises out of a dispute over reinsurance contracts, see 9 U.S.C. § 202 (arbitral "awards arising out of a legal relationship ... which is considered as commercial" fall under the Convention, and agreements described in 9 U.S.C. § 2 are "considered as commercial"); Oblix, Inc. v. Winiecki , 374 F.3d 488, 491 (7th Cir. 2004) (reinsurance treaties generally fall under 9 U.S.C. § 2 ), and the contracts arise out of a relationship between a citizen of the United States and a citizen of the United Kingdom. 9 U.S.C. § 202 (all arbitral awards fall under the Convention unless they arise out of "a relationship which is entirely between citizens of the United States"); Lear Corp. v. Johnson Elec. Holdings Ltd. , 353 F.3d 580, 582 (7th Cir. 2003) (a Bermuda corporation is a citizen of the United Kingdom for purposes of 28 U.S.C. § 1332(a)(3) ). The Convention grants district courts original jurisdiction in such cases. 9 U.S.C. § 203 ("[t]he district courts of the United States ... shall have original jurisdiction over" any "action or proceeding falling under the Convention"). See also Jain v. de Mere , 51 F.3d 686, 688 (7th Cir. 1995) ("the Act creates a strong presumption in favor of arbitration, especially in international commercial agreements").3
*692B. McCarran-Ferguson Preemption
The Director contends that the Convention is reverse-preempted by the McCarran-Ferguson Act. See 15 U.S.C. § 1012 ("[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, ..., unless such Act specifically relates to the business of insurance"). This would mean that a federal court could not entertain the petition to confirm the arbitration award. The analysis "requires three inquiries: first, does the federal statute at issue 'specifically relate to the business of insurance;' second, was the state statute 'enacted ... for the purpose of regulating the business of insurance'; and third, would application of the federal statute 'invalidate, impair or supersede' the state law." Autry v. Nw. Premium Servs., Inc. , 144 F.3d 1037, 1040-41 (7th Cir. 1998). Neither the Arbitration Act nor the Convention specifically relate to the business of insurance, see 9 U.S.C. §§ 201 et seq. ; 9 U.S.C. § 1 et seq. , and Article XIII of the Illinois Insurance code does. See 215 ILCS 5/187 et seq. Neither party disputes this.
This case does not require me to construe any federal law in a way that "invalidate[s], impair[s] or supersede[s]" state law. "The term 'invalidate' ordinarily means 'to render ineffective, generally without providing a replacement rule or law,' " and the term " 'supersede' ordinarily means 'to displace (and thus render ineffective) while providing a substitute rule.' " Humana Inc. v. Forsyth , 525 U.S. 299, 307, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999). "[T]o 'impair' a law is to hinder its operation or 'frustrate [a] goal' of that law." Id. at 311, 119 S.Ct. 710. See also id. at 309, 119 S.Ct. 710 ("[w]hen federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State's administrative regime, the McCarran-Ferguson Act does not preclude its application").
Confirming the arbitration award would not "invalidate, impair or supersede" Illinois's liquidation statutes. Article XIII both grants the Director title to all of Legion's contracts (that were in existence as of the date of the liquidation order), 215 Ill. Comp. Stat. Ann. 5/191, and authorizes her to institute any "action, claim, suit, or proceeding upon any cause of action" so long as it is not time-barred. 215 Ill. Comp. Stat. Ann. 5/194(b). The Director assumed control of Legion's contracts, requested payment on balances she believed to be outstanding and, when Catalina refused, demanded arbitration proceedings pursuant to the reinsurance agreements. [25-1] at 4. The Director appears to have thought there was nothing inconsistent with arbitrating a claim that would eventually be dealt with in liquidation court right up until the panel ruled in Catalina's favor.
According to the Director, the petition risks interference with two sections of Article XIII that say that Sangamon and Cook County are the "exclusive forums for the liquidation of the insurer." [19] at 8 (citing 215 Ill. Comp. Stat. Ann. 5/188 ; 215 Ill. Comp. Stat. Ann. 5/188.1 ); [26] at 12.
*693But neither section says that. At most, section 5/188 obligates the Director to report certain companies to the Attorney General, who then has a duty to apply by complaint (in Cook or Sangamon County or "the circuit court of the county in which such company has, or last had its principal office," 215 Ill. Comp. Stat. Ann. 5/188 ) for an order to liquidate or seek "other relief as the nature of the case ... may require." Id.4 Nothing that the Director has cited says the liquidator cannot resolve a related contractual dispute somewhere else, either before, during, or after the liquidation proceedings. See 215 Ill. Comp. Stat. Ann. 5/209(7.5)(a) (the "[d]irector shall have the authority to exercise all available remedies on behalf of the insolvent company to marshal" certain "reinsurance recoverables," including certain "[c]ontingent or unliquidated general creditor's and ceding insurers' claims"). A blanket citation to Illinois's insurance liquidation statutes is not enough to show that the panel's award "frustrate[d]" the Director's "ability to marshal the remaining funds and pay policyholders and creditors," or "interfere[d]" with Illinois's insurance regime. [19] at 8.
Nor will confirming the panel's award "decide the existence of liability and amount" that the Director owes Catalina. [26] at 7. Liability and amount has already been decided. [25] at 3-4. The petition asks me to perform a very limited review to confirm that the decision was not reached in violation of the Arbitration Act or the Convention. I am precluded from doing anything more than that. 9 U.S.C. § 9 ; Baravati v. Josephthal, Lyon & Ross, Inc. , 28 F.3d 704, 706 (7th Cir. 1994) ("[j]udicial review of arbitration awards is tightly limited; perhaps it ought not be called 'review' at all"); Ottley v. Schwartzberg , 819 F.2d 373, 376 (2d Cir. 1987) ("[a]bsent a statutory basis for modification or vacatur, the district court's task was to confirm the arbitrator's final award as mandated by section 9 of the Act").
Even if Catalina's counter-claim for unpaid premiums in the arbitration proceedings constituted a separate "claim" on Legion's estate, it is not clear that would pose a problem for the liquidation court. The statute and case law explain how reinsurance claims should be prioritized. 215 Ill. Comp. Stat. Ann. 5/205 ; In re Liquidations of Reserve Ins. Co. , 122 Ill. 2d 555, 563-64, 120 Ill.Dec. 508, 524 N.E.2d 538 (1988). The Director has not pointed to evidence showing that Catalina's claim was time-barred, 215 Ill. Comp. Stat. Ann. 5/208, nor explained how Catalina would be able to *694"jump ahead" other creditors as a result of an order confirming the panel's award. (At least according to Catalina, there is no one left to jump ahead of. See [25] at 13 ("[t]he estate has already paid all timely and late filed policyholder and creditor claims in full") ). The award perfected a claim that Catalina may now use to obtain payment in the liquidation court. It is not in contravention to the liquidation proceedings, it exists alongside, and is consistent with, those proceedings.
Stephens v. Am. Int'l Ins. Co. , 66 F.3d 41 (2d Cir. 1995), does not apply. In Stephens , there was a "state statute which specifically regulate[d] the liquidation of insurance companies and which render[ed] arbitration clauses unenforceable during liquidation." Id. at 44. There is no such statute here, and without something for the Convention or Arbitration Act to "invalidate, impair or supersede," there is no need to repeat the rest of the preemption analysis from Stephens . See also Foresight Energy, LLC v. Certain London Mkt. Ins. Companies , 311 F.Supp.3d 1085, 1101 (E.D. Mo. 2018) (the Missouri anti-arbitration statute "expressly proscribe[d] the enforcement of arbitration provisions contained in insurance contracts").
Even if there were a need, I find the Fourth Circuit's and Fifth Circuit's treatment of the issue more persuasive. See ESAB Grp., Inc. v. Zurich Ins. PLC , 685 F.3d 376, 388-89 (4th Cir. 2012) (McCarron-Ferguson is limited to "legislation within the domestic realm," and "Congress did not intend for the McCarran-Ferguson Act to permit state law to vitiate international agreements") (citing F.T.C. v. Travelers Health Ass'n , 362 U.S. 293, 300, 80 S.Ct. 717, 4 L.Ed.2d 724 (1960) ) (there is "no indication" that Congress thought McCarran-Ferguson would empower a state to "regulate activities carried on beyond its own borders"); Safety Nat. Cas. Corp. v. Certain Underwriters At Lloyd's, London , 587 F.3d 714, 722-23 (5th Cir. 2009) (distinguishing between the Convention Act (characterized as implementing legislation for a non-self-executing treaty) and the Convention itself (a treaty and the ultimate source of the district court's jurisdiction) to determine that the Convention was an act of the Executive Branch and the Senate-not an "Act of Congress").5
The Seventh Circuit has not yet spoken on the issue. See also Pine Top Receivables of Illinois, LLC v. Banco de Seguros del Estado , 771 F.3d 980, 986-87 (7th Cir. 2014) (declining to reach the merits of an argument that McCarran-Ferguson preempts the Foreign Sovereign Immunities *695Act). But it recently held that the "choice of forum between state and federal court, within a state" is not "integral" to the policy relationship or the substantive concerns of the McCarran-Ferguson Act. Hammer , 905 F.3d at 534. Even though a presumptive rule that applied in Hammer (in favor of removal under 28 U.S.C. § 1442 for federal entities) does not apply here, id. at 533, a different one does: there remains a "liberal federal policy favoring arbitration agreements." Green Tree Fin. Corp.-Alabama v. Randolph , 531 U.S. 79, 81, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). Neither the Arbitration Act nor the Convention preempt Illinois's liquidation proceedings wholesale and, in the absence of any set of facts that requires interpreting either such that it would "invalidate, impair or supersede" Illinois's insurance laws, neither is reverse-preempted under McCarran-Ferguson.
C. Burford Abstention
The Supreme Court's decision in Burford "has become the doctrine of choice in analyzing whether to abstain in favor of state insurance liquidation and rehabilitation proceeding" because "its analysis provides the closest fit." Prop. & Cas. Ins. Ltd. v. Cent. Nat. Ins. Co. of Omaha , 936 F.2d 319, 321 (7th Cir. 1991). Abstention remains the exception, not the rule. Id. There are two types of Burford abstention, but the Director only advances one: federal courts should "abstain 'from the exercise of federal review that would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.' " Id. at 322.
There are two "essential elements" to this type of Burford abstention: the state must offer a forum where these claims may be litigated, and that forum must "stand in a special relationship of technical oversight or concentrated review to the evaluation of those claims." Id. at 323. The "ability to point to a specialized proceeding is a prerequisite ... not a factor." Id. Four factors act as useful guidance:
First, is the suit based on a cause of action that is exclusively federal? Second, does the suit require the court to determine issues that are directly relevant to state policy in the regulation of the insurance industry? Third, do state procedures indicate a desire to create special state forums to regulate and adjudicate these issues? Fourth, are difficult or unusual state laws at issue?
Hartford Cas. Ins. Co. v. Borg-Warner Corp. , 913 F.2d 419, 425 (7th Cir. 1990) (noting that, although commentators have attempted to label and categorize the concept, "[a]bstention is a much more amorphous concept" than the commentators suggest).
Abstention would be inappropriate under Burford and Hartford . The cause of action is exclusively federal. [1] at 2 (citing 9 U.S.C. §§ 9, 203, 207 ). There are not any "difficult or unusual state laws" at issue; the petition asks me to confirm the panel's award, not reconsider its merits. I am precluded from engaging in the type of second-guessing that the Director believes would invade the province of the Illinois liquidation court. See Tice v. Am. Airlines, Inc. , 373 F.3d 851, 854 (7th Cir. 2004) ("[a]s long as what the arbitrators did can fairly be described as interpretation, our hands are tied"); Yasuda , 37 F.3d at 349 ("a court may vacate an arbitration award only if the arbitration panel's decision to grant the award does not draw its essence from the agreement between the parties"). Nor does the petition require me to determine any issue that is "directly relevant" to Illinois's policies regarding the regulation of the insurance industry, at least insofar as those policies have been codified.
*696It does not require me determine the priority of Catalina's claim on Legion's estate or engage in any other way with Illinois's insurance or liquidation laws. See [19] at 10. All it calls on me to do is either confirm or vacate the panel's award. With a decision in hand, the Director and Catalina will be free to proceed before the liquidation court as they and that court-and the State of Illinois-see fit. See [6] at 5; McRaith v. Am. Re-Ins. Co. , No. 09 C 4027, 2010 WL 624857, at *3 (N.D. Ill. Feb. 17, 2010) ("[t]he proceeds of any judgment ... obtained in federal court will be distributed to policyholders and other creditors in the rehabilitation proceeding according to their relative priority as determined by state law").
The third factor is the only one that arguably weighs in favor of abstention. But it does not weigh heavily. Even though Illinois has created a special forum for adjudicating the liquidation of insurance companies, the Director's characterization of the liquidation court as an exclusive "special forum" for all matters related in any way to any insolvent insurance company overstates the breadth of Illinois's insolvency regime. And to the degree Catalina's petition requests an order going beyond the confirmation of the underlying award, that request is without merit and will not be granted (at least absent a motion to modify the award, in which case the Burford abstention analysis might need to be revisited). See 9 U.S.C. § 9 ; Baravati , 28 F.3d at 706 ; Ottley , 819 F.2d at 376.
Hartford is also factually distinguishable. Hartford's complaint required that the federal court "estimate the dividend that reinsurance creditors of [the defendant] will receive from the rehabilitation process" and also "interpret the reinsurance treaties." 913 F.2d at 426. Catalina's requires nothing of the sort. Instead, when the "suit[s] would not be disruptive of the rehabilitation process, a federal court [has] to hear the case." Id. Abstention here is not proper under Hartford , either.6
In the alternative, the Director moves for a stay of this action pending completion of the liquidation proceedings. See [19] at 2, 13; Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 730, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (abstention-based stay may be appropriate when a "setoff issue was being decided by the state courts at the time the District Court ruled," and when the District Court might have been "justified in entering a stay to await the outcome of the state court litigation"). But there is no setoff to be determined here, nor has there been a showing of any other reason to wait for developments in the liquidation proceedings. There are hints in the briefs but, otherwise, the record is not complete enough to allow me to determine what benefit, if any, would be conferred upon the liquidation court if I were to wait before ruling on the petition for confirmation. The motion to stay is denied.
D. The Anti-Suit Injunction & Other Arguments
The liquidation order prohibits "[t]he officers, directors, agents, third party administrators, managing general agents, servants, representatives, policyholders, creditors and employees" of Legion (and anyone else "having knowledge" of the order *697) from "bringing or further prosecuting any claim, action, or proceeding at law ... against [Legion] or ... the Director or Liquidator, except insofar as those claims, actions or proceedings arise in or are brought in the liquidation proceedings." [19-2] at 7-8. It does not preclude this court from deciding a petition to confirm an arbitration award. If a party subject to the anti-suit injunction violated it, the court that issued the injunction can order a remedy. Hearing the petition in this court would not deny full faith and credit to the anti-suit injunction.
The Director cites only one other binding decision ( Underwriters Nat. Assur. Co. v. N. Carolina Life & Acc. & Health Ins. Guar. Ass'n ) but there, the question was whether a North Carolina court was required to afford full faith and credit to an Indiana court's judgment. 455 U.S. 691, 705-07, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982). In contrast, "the rights conferred by Congress to bring in personam actions in federal courts are not subject to abridgment by state-court injunctions, regardless of whether the federal litigation is pending or prospective." Gen. Atomic Co. v. Felter , 434 U.S. 12, 17, 98 S.Ct. 76, 54 L.Ed.2d 199 (1977). As a result, it is also unimportant whether the petition constitutes a "new proceeding" under Lander , 107 F.3d at 478.
The Director's final argument asserts that Catalina has failed to provide an agreement signed by both parties. [26] at 14-15. That argument was advanced for the first time on the final pages of the Director's reply. It was waived. See Gold v. Wolpert , 876 F.2d 1327, 1331 n.6 (7th Cir. 1989) ; Wilson v. Giesen , 956 F.2d 738, 741 (7th Cir. 1992) (arguments not raised until the reply brief are waived).
IV. Conclusion
For the foregoing reasons, the Director's motion to dismiss, [19], is denied. A status hearing is set for April 3, 2019, at 9:30 a.m. The parties should be prepared to address the Director's motion to remand, [28] and the Director's motion to vacate. See Exhibit B to the Notice of Removal, Legion Indemnity Company, In Liquidation v. Catalina Holdings (Bermuda) Limited , No. 18-cv-06595 (N.D. Ill. Sept. 27, 2018) ECF No. 1-2.
Bracketed numbers refer to entries on the district court docket.
Catalina filed a motion to seal the final arbitration award, [5], and I granted that motion. [11]. But Catalina later disclosed the amounts awarded. [25] at 3-4. The Director also partially disclosed those figures (and other aspects of the final award) in her briefing on the motion to dismiss or stay. See, e.g. , [19] at 10 n.3. There is an exception to the parties' confidentiality agreement whenever the parties agree to disclosure via written agreement, [5-1] at 2, § 2, and whenever disclosure is made "in connection with court proceedings relating to any aspect of the arbitration, including but not limited to motions to confirm, modify or vacate an arbitration award." Id. at 2, § 3.
Catalina requests confirmation of the award under the Federal Arbitration Act, which requires that parties seeking review of an arbitral award "establish some independent basis for federal subject matter jurisdiction." Yasuda Fire & Marine Ins. Co. of Europe, Ltd. v. Cont'l Cas. Co. , 37 F.3d 345, 347 n.1 (7th Cir. 1994). The Convention provides an independent basis for jurisdiction, and could mark "the beginning and end" of my authority over this case. Jain , 51 F.3d at 689. But there's more-the parties are diverse. 28 U.S.C. § 1332(a)(2). Catalina is a citizen of the United Kingdom, Lear , 353 F.3d at 582, and the Director is a citizen of Illinois, either as representative of Legion, Hong Kong Deposit & Guar. Co. v. Hibdon , 602 F.Supp. 1378, 1380-81 (S.D.N.Y. 1985) (liquidator's citizenship, not that of the company it is liquidating, determines diversity); Clarkson Co. v. Shaheen , 544 F.2d 624, 628 (2d Cir. 1976) (there is a "general common law rule that courts will look to the citizenship of a trustee, receiver, administrator, or other representative, and not the party which he represents, in determining diversity jurisdiction") (citing Mecom v. Fitzsimmons Drilling Co. , 284 U.S. 183, 186, 52 S.Ct. 84, 76 L.Ed. 233 (1931) ; New Orleans v. Gaines's Administrator , 138 U.S. 595, 606, 11 S.Ct. 428, 34 L.Ed. 1102 (1891) ; Nunn v. Feltinton , 294 F.2d 450, 453 (5th Cir. 1961), cert. denied , 369 U.S. 817, 82 S.Ct. 829, 7 L.Ed.2d 784 (1962) ), or because Legion is itself an Illinois company. [25] at 4. The amount in controversy is in excess of $ 75,000. [25] at 3-4. I have jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(2). Lander Co. v. MMP Investments, Inc. , 107 F.3d 476, 481 (7th Cir. 1997) (the Arbitration Act does not preclude concurrent jurisdiction under both the Convention and other sources of federal jurisdictional).
Section 5/188.1 adds that, in certain circumstances, upon the filing of the complaint, the court must enter an order enjoining "the company ... from disposition of its property and from further transaction of its business except with the concurrence of the Director until the further order of the court." 215 Ill. Comp. Stat. Ann. 5/188.1. Section 5/187(2) defines "company" to include all "non-risk bearing entities or persons engaged in any aspect of the business of insurance on behalf of an insurer against which a receivership proceeding has been or is being filed under this Article, including but not limited to, entities that provide ... underwriting, claims handling, or any other similar services to that insurer, ..., if the entity or person is an affiliate of that insurer." 215 Ill. Comp. Stat. Ann. 5/187(2). Section 5/187(4) defines "affiliate" to mean "a person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the person specified." There has been no showing that Catalina was acting "on behalf of" Legion or that Catalina directly or indirectly controlled Legion; it just provided them with reinsurance. See [25-2] at 3-4. Even if § 5/188.1 applies, the Director does not dispute that it failed to raise these points in the arbitration proceedings (Catalina points out that the Director "affirmatively authorized the panel to proceed" after those counterclaims were filed, [25] at 10 (citing [25-3] at 6:20-7:4) ), so the counterclaims were at least with the Director's "concurrence," if not outright approval.
I also find persuasive decisions finding that the McCarran-Ferguson Act does not preempt the federal diversity jurisdiction statute. Hammer v. United States Dep't of Health & Human Servs. , 905 F.3d 517, 534 (7th Cir. 2018), reh'g denied (Nov. 21, 2018); Gross v. Weingarten , 217 F.3d 208, 222 (4th Cir. 2000) ("we do not believe that concurrent federal jurisdiction over the defendants' counterclaims threatens to 'invalidate, impair, or supersede' (as those terms are used in the McCarran-Ferguson Act) Virginia's efforts to establish a single equitable proceeding to liquidate or rehabilitate insolvent insurers"); Martin Ins. Agency, Inc. v. Prudential Reinsurance Co. , 910 F.2d 249, 254 (5th Cir. 1990) (abstaining under Burford but first holding that dismissal should not be based on lack of subject matter jurisdiction); Hawthorne Sav. F.S.B. v. Reliance Ins. Co. of Illinois , 421 F.3d 835, 843 (9th Cir. 2005), amended , 433 F.3d 1089 (9th Cir. 2006) ("[t]he necessary question in cases such as this one is whether operation of the diversity jurisdiction statute actually 'invalidate[s], impair[s], or supersede[s]' the state's liquidation efforts"); Grimes v. Crown Life Ins. Co. , 857 F.2d 699, 702 (10th Cir. 1988) ("the policy of the McCarran-Ferguson Act was to leave the regulation of insurers to the states, it did not intend to divest federal courts of the right to apply state law regarding the regulation of insurers in appropriate diversity proceedings").
That being said, the Director has not waived either her abstention or anti-suit injunction arguments. See [25] at 9 (citing Clark v. Underwriters Mgmt. Corp. , No. 98 C 4084, 2003 WL 21148420, at *3 (N.D. Ill. May 16, 2003) ). Unlike in Clark , the Director has not taken steps or otherwise made an argument (in this forum, at least) that is "inconsistent with [her] present position that the ... liquidation proceeding is the 'exclusive forum designated to adjudicate claims against the ... estate.' " Id. at *6. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3349020/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
On October 6, 1997 the mother entered an Alford plea to a neglect petition filed by the Department of Children and Families (DCF) involving her four children: Randy and Bruce, born May 9, 1984, John, born March 18, 1989 and Monique, born June 1, 1992. C.G.S § 46b-129. The children were being denied proper care and attention, physically, educationally or morally and were permitted to live under conditions, circumstances or association injurious to their well-being. § 46b-120 (8). The issue at the trial was disposition.
Attorneys had been appointed for the mother and the children. A guardian ad litem was appointed for the children. A child psychologist, the guardian ad litem and the DCF worker testified for the petitioner; mother testified, as well as a previous parent aide. DCF and the guardian ad litem favored commitment. The mother objected. Only Bruce provided direction to his lawyer: removal. CT Page 12938
Upon preponderance of the evidence at the last hearing date, the court finds in the best interest of the children that they be committed to the Commission of Children and Families for the statutory period.
I
The first referral to DCF on this family occurred in September 1987. Over the succeeding years there have been reports of inappropriate discipline and personal misbehavior in presence of children. The home has been unkept with fire hazards; no clean clothes and no food for the children. The home has been without heat and hot water. Bruce in August 1997 reported the home needed fumigation.
In July 1995 DFC received referral from the Child Guidance Clinic expressing concern over the lack of supervision for the twins. Ninety six hour DCF holds occurred in 1995 and 1996 when the children were removed from the home. The twins stayed with a family friend B. from February 1996 under a voluntary placement; in June 1996 the mother refused return of the twins. Boys village in August 1996 saw no improvement in mother's parental ability after nine months of assistance and recommended placement of all children.
In September 1997, the school reported the twins were behavioral problems who neither finish or follow classroom rules. Whatever the mother's efforts with school authorities, the children's school problems remain. Ex S-6, S-7, S-8, S-9.
Although the mother in 1989 and 1995 has conceded she cannot control her children, she attributes all family problems to the time `however short' they spent in foster care. The mother suggestion for this dysfunctional, or nonfunctioning family, is YMCA membership for the boys and a home worker.
II
Dr. Barbara Berkowitz, a licensed and experienced child psychologist evaluated the family as of July 11, 1997. Ex. S-1. Based largely on the family history relayed by the mother, Dr. Berkowitz initially recommended that Bruce reside with the family friend B. but in fact, this concerned lady is infirm and legally blind. The other three children would remained home for family CT Page 12939 therapy work.
Upon review of additional material, Dr. Berkowitz filed an Addendum dated August 15, 1997 which recommended out of home placement for all four children.
"Given the historical information provided in this post evaluation packet, this psychologist is duly impressed with the chronicity of all of the pathological dynamics in the . . . family There has been virtually no change in the adequacy of . . . parenting commitment or capacity in almost a decade, despite the provision of significant levels of mental health treatment. Her attitudes and behaviors remain much the same as those cited in earlier reports, and she continues to externalize the responsibility for the children's problems onto them, rather than perceiving her own difficulties as having something to do with their actions. She remains unwilling to engage in the forms of treatment necessary for her own changes, and the evaluator is further convinced that she suffers from a serious and difficult-to-treat personality disorder. Hence, the prognosis for her to make significant changes is poor-to-guarded, at best, especially since she expressed no interest in or motivation for individual treatment. Her parenting capabilities and adequacy are, therefore, highly unlikely to change in the foreseeable future." Ex. S-2, page 2. The testimony of professionals is given great weight. In re Michael M., 29 Conn. App. 112 (1992).
While the mother may well love her children, she fails to meet the minimum attributes of parenthood. In re Juvenile Appeal(Docket No. 9489) 183 Conn. 11, 15 (1981).
Dr. Berkcowitz recommended that Randy and Bruce should be in separate residential setting or highly specialized therapeutic foster homes and that Jake and Monique should be in foster care. All four children have needs which should be addressed by DCF. Hopefully the mother will be motivated by this decision to engage in her own therapeutic program leading to reunification.
The court finds that reasonable efforts to prevent or eliminate the need for removal of said children were made by the state over the past ten years.
III
Accordingly, the four children are committed to the CT Page 12940 Commission of Children and Families for the statutory period, effective December 26, 1997. The court approves the expectations submitted by DCF.
Treatment plan/administrative revenues should be filed commencing on or about June 30, 1997. A status report should be filed with the court on or about March 31, 1997.
Samuel S. Goldstein Judge Trial Referee | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3349021/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION RE APPLICATIONS TO CONFIRM AND TO VACATE ARBITRATION AWARD
Plaintiff brings this application to vacate an arbitration award of June 8, 1992 and defendant seeks to confirm it.
Facts
The award involves the layoff of one Kent Johnson (Johnson), an employee of the Connecticut Department of Transportation (DOT).
Johnson filed a grievance after DOT notified him of his selection for layoff. That grievance proceeded as a labor matter and ended in the subject arbitration. The submission was: CT Page 11696
"Was the selection of the grievant for layoff and/or the notice of layoff issued to the grievant on April 4, 1991 in violation of Article 12 and/or Article 13 of the 1988-1991 Contract?
If so, what shall be the remedy?"
On June 8, 1992, the arbitrator issued a timely 23-page Opinion and Award. The award portion is as follows:
"The selection of the grievant for layoff and/or notice of layoff issued to the grievant on April 4, 1991 was in violation of Article 13 of the 1988-1991 NP-2 Contract.
The State shall immediately offer to reinstate the grievant, Kent Johnson, to his former position and to make him whole for any lost wages and benefits which he incurred as a result of his layoff."
Law
I. Offer To versus Shall Reinstate
The court reads the award with a kindly eye and sees nothing wrong with an order that the State shall offer to reinstate Johnson. In addition, in the United States the reinstatement to a work environment must be with Johnson's consent. That part of the award is final and definite.
II. Amount of Lost Wages and Benefits Due
A. Wages
The award is 23 pages long. It mentions testimony and argument but finds no facts about lost wages or benefits due Johnson. The arbitrator does mention that Johnson testified that "he has significantly fewer overtime opportunities at Woolcott" [sic]. If the court with its kindly eye were to construe that as a finding of fact, what impact does it have on the State and Johnson in regard to implementation of the award? Is overtime "wages"? (Probably, yes). Article 18, 16 sets out the calculation of overtime but there are many qualifications and exceptions, including subsection (e) which provides that, "Overtime pay CT Page 11697 shall not be pyramided." The court does not know what that means but suspects the parties do.
In an effort to "make him whole for any lost wages and benefits" this court cannot conclude what part, if any, does the fact that he had "significantly fewer overtime opportunities" play in the calculation. The arbitrator made neither findings nor decisions in regard to those questions.
B. Benefits
The only "Relevant Contract Provisions" cited in the Award are Articles 12 and 13. Neither defines "benefits". The table of contents lists many articles that this court would consider "benefits", e.g., Articles 10, 18, 20-24, 28-33, 41 and 43, but finds no definition of benefits.
An award "must be final as to the matters submitted so that the rights and obligations of the parties may be definitely fixed." Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 617. Neither the opinion nor the award offer any calculations as to what the benefits are to be; and no guidance as to what benefits are to be given to "make him whole". The award provides no time period over which the granting of benefits is to be calculated. The union has not demonstrated how any of these calculations might be made. If this court had been presented such a demonstration showing that the calculations may be made with the simple application of existing mechanical and mathematical materials, the court could and would confirm.
The union's brief states in general that the wording of the remedy portion of the award "is quite clear and apparent" and that "[n]o confusion exists over what the arbitrator meant and what the Employer must do to comply". It further states specifically that the award requiring the employer to "make him whole for any lost wages and benefits he incurred as a result of his layoff" is "abundantly clear, unequivocal and easily calculated." The union brief gives no hint as to how to do those easy calculations. This court cannot.
Motion to vacate is granted.
Motion to confirm is denied. CT Page 11698
N. O'Neill, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1330405/ | 490 S.E.2d 902 (1997)
200 W.Va. 814
In re the Petition of Kenneth B. SHIFLETT for an Appeal From an Order of the Randolph County Commission Dated June 6, 1994.
No. 23423.
Supreme Court of Appeals of West Virginia.
Submitted February 5, 1997.
Decided July 18, 1997.
*904 Richard W. Cardot, Cardot Law Offices, Elkins, for Appellant.
Peter G. Zurbuch, Busch & Talbott, L.C., Elkins, for Appellee.
*903 WORKMAN, Chief Justice:
Kenneth B. Shiflett, the petitioner below and Appellant herein (hereinafter Appellant), appeals the January 4, 1995 and July 27, 1995 orders of the Circuit Court of Randolph County. The January 4, 1995 order granted a motion in limine to exclude any evidence that Mary Herron Shiflett, the respondent below and Appellee herein (hereinafter Appellee), abandoned her husband, Kenzie Brent Shiflett, now deceased, and it permitted Appellee to elect against her husband's will and take an elective-share percentage of the augmented estate. In the July 27, 1995 order, the circuit court further determined that the property acquired by the testator prior to his marriage to Appellee should be included as part of the augmented estate.
On appeal, Appellant argues Appellee should be estopped from asserting a right to take an elective-share percentage of the estate because Appellee abandoned the testator approximately ten years before his death. Appellee also asserts that, if Appellee is entitled to an elective-share percentage of the estate, a constructive trust should be established for "those assets ... [the testator] acquired prior to the marriage or derived from assets ... [the testator] acquired prior to the marriage ..." to prevent Appellee from being unjustly enriched. For the following reasons, we affirm the circuit court's order entered on January 4, 1995, but reverse the order entered on July 27, 1995, and remand this case for further proceedings.
I.
FACTS IN CONJUNCTION WITH STATUTORY CHANGES
Appellee married the testator on July 24, 1981. Appellant, who is the testator's son from a previous marriage,[1] alleges that Appellee abandoned his father after approximately *905 one and one-half years of marriage and the couple lived separate and apart for the remainder of his father's life.[2] The testator died on December 30, 1992, owning both real and personal property.[3]
By will executed on November 15, 1984, the testator left his entire estate to Appellant, except for a trailer and a clock which he bequeathed to Appellee. At the time the will was executed, the dower rights of a husband or wife were barred if the husband or wife voluntarily left or abandoned "his or her spouse without such cause as would entitle such husband or wife to a divorce ..., and without such cause and of his or her own free will be living separate and apart from such spouse at the time of the latter's death...." W. Va.Code § 43-1-19 (1982).[4] In addition, if the dower rights of either a husband or wife were barred "under any provision of law," neither the husband nor the wife could "have any part of the estate of the other, unless the same be given him or her by will and then only so much as is so given." W. Va.Code § 42-3-3 (1982).[5] In other words, if a husband or wife abandoned his or her spouse as contemplated by West Virginia Code § 43-1-19, there would be a forfeiture of rights to take any part of the estate, except what was bequeathed by the will.
In an attempt to prevent Appellee from taking any part of the estate except what was provided to her by the will, Appellant sought to admit evidence pertaining to her alleged abandonment of the testator. However, approximately nine months prior to the testator's death, the legislature passed sweeping statutory revisions to the descent and distribution provisions in the code, including the repeal of the abandonment provision contained within West Virginia Code § 43-1-19. 1992 W. Va. Acts ch. 75.[6] As a result of the abandonment provision being repealed, the circuit court found the issue to be irrelevant under the statutory law in effect at the time the testator's death. Therefore, the circuit court refused to permit Appellant to introduce any testimony pertaining to it.
At the same time the abandonment provision was repealed, West Virginia Code § 42-3-1 was amended. 1992 W. Va. Acts ch. 75.[7] When the testator died, West Virginia Code § 42-3-1 (Supp.1992) provided that a "surviving spouse"[8] could elect against a will and *906 take an "elective-share percentage of the augmented estate." W. Va.Code § 42-3-1(a). The percentage a surviving spouse was entitled to take was "determined by the length of time the spouse and the decedent were married to each other...." Id.[9] Pursuant to an accrual schedule in the statute, Appellee was awarded thirty-four percent of the augmented estate.[10]
Appellant claims the statutory revisions unjustly reward Appellee for her conduct and undermine his father's intent as expressed in his will. In addition, Appellant maintains his father was legally blind and in poor health at the time these statutory revisions took effect and his father died approximately six months thereafter. Consequently, Appellant asserts there was neither a reasonable opportunity nor a reasonable amount of time for his father to obtain a divorce to prevent Appellee from taking any part of the estate except what he intended to give her under the will. Therefore, Appellant argues this Court should apply the doctrine of equitable or quasi estoppel to prevent Appellee from receiving a statutory share of the augmented estate or, in the alternative, set up a constructive trust to prevent Appellee from being unjustly enriched.
Upon review of the statutory provisions, we decline to apply either of these measures. As the issues raised by Appellant involve purely questions of law, our review of this case is plenary and de novo. See Gribben v. Kirk, 195 W.Va. 488, 493, 466 S.E.2d 147, 152 (1995) (stating "[t]he issues presented... involve questions of law; therefore, our review is plenary and de novo").
II.
DISCUSSION
A.
A Surviving Spouse's Right to an Elective-Share
At the outset, the distinction between "construing" the language of a will and determining what "legal effect" a will shall have should be made. When construing a will, the goal normally is to ascertain the testator's intent. For instance, when a testator uses ambiguous words, courts may be asked to interpret the meaning of those words in order to derive the testator's intent. See e.g. Foster v. Foster, 196 W.Va. 341, 472 S.E.2d 678 (1996) (interpreting the language in a holographic will). On the other hand, when determining the "legal effect" of a will, the focus shifts to whether the will complies with the law, i.e., whether the will violates any positive rule of law or public policy. If a "testator attempts to make a disposition forbidden by law[,] it will not be effectuated..." regardless of the testator's intent. Weiss v. Soto, 142 W.Va. 783, 791, 98 S.E.2d 727, 733 (1957).[11]
As tersely explained by this Court in McCauley v. Henry, 143 W.Va. 770, 105 S.E.2d 129 (1958), "[s]trictly speaking, the actual intention of a testator has nothing to *907 do with the legal effect of his expressed intention ... [No matter how] clearly a testator may express his intention, the legal effect which shall and must be given to it by the courts is purely a question of law." 143 W.Va. at 776, 105 S.E.2d at 133 (citation omitted). For instance, in numerous cases a testator's intent is "defeated for the reason that the law did not permit that intention to be carried out," such as occurs when a will violates the rule against perpetuities. Id.
Thus, in the present case, we place no significance on Appellant's assertion that the revised legislation undermines his father's intent. The critical issue before this Court is not the intent of the testator.[12] Rather, the issue for this Court to resolve is what legal effect the testator's intent has, given the statutory changes.[13]
In this light, we observe that it generally is held "the operative effect of the will and the rights of the parties thereunder are governed by the law in force when the rights of the parties accrue, which is ordinarily the law in existence at the time of the death of the testator." 95 C.J.S. Wills § 587(f) at 724 (1957)[14]; accord McCauley v. Henry, 143 W.Va. at 776, 105 S.E.2d at 133 (1958)[15]; see also Syl. Pt. 5, Arnold v. Turek, 185 W.Va. 400, 407 S.E.2d 706 (1991) ("Statutory changes in the manner and method of distributing the proceeds of a judgment or settlement for wrongful death will not be given retroactive effect, and the statute in effect on the date of the decedent's death will control."). On appeal, Appellant does not dispute that the statutory revisions were in effect at the time of his father's death but, instead, argues it would be inequitable to apply the law under the facts of this case. Essentially, Appellant is asking this Court to ignore the effective law and forfeit Appellee's rights pursuant to the repealed statutes.
Given that our legislature specifically repealed the abandonment provision at the same time it amended West Virginia Code § 42-3-1 (permitting a surviving spouse to take an elective-share percentage of the augmented estate),[16] we cannot judicially engraft a modified form of the abandonment provision back into the code.[17] Instead, we follow the predominant rule that declares the issue of whether abandonment, or other types of misconduct, should result in a forfeiture of a surviving spouse's right to an estate is a determination best left to the legislature, not the courts.[18] As explained by *908 the Alabama civil appellate court in Pogue v. Pogue, 434 So. 2d 262 (Ala.Civ.App.1983):
The great weight of authority is against any finding of an `implied exception' to the descent and distribution statutes. In the absence of statutory provisions to the contrary, the fact a surviving spouse abandoned the deceased spouse does not bar the surviving spouse's right to inherit under descent and distribution.
434 So.2d at 264 (citations omitted). Moreover, as the issue is within "the plenary control of the state legislature and depends entirely upon the provisions of the statutes regardless of any other person's ideas or motions of right or wrong," it is irrelevant whether the inheritance statutes "comport with the court's or counsel's idea of justice, morality or natural right." In re Scott's Estate, 90 Cal. App. 2d 21, 202 P.2d 357, 359 (1949).[19]
In an analogous situation, this Court reached the same result. In White v. Gosiene, 187 W.Va. 576, 420 S.E.2d 567 (1992), we were asked to decide whether a father, who abandoned his daughter, was entitled to share equally with the mother in a settlement reached for their daughter's wrongful death. 187 W.Va. at 578, 420 S.E.2d at 569. At the time the daughter died, there was no statute foreclosing a parent who abandoned a child from sharing in a wrongful death award. Id. at 585, 420 S.E.2d at 576. Therefore, we concluded in syllabus point five: "In the absence of a statute to the contrary, a parent who abandons a child is not precluded from recovering or sharing in a wrongful death recovery where the wrongful death act mandates distribution of damages recovered thereunder in accordance with the laws of intestate succession." Writing for the Court, the Honorable Thomas B. Miller, Justice, explained it is "loathe" for this Court "to interfere with the legislative determination as to those persons who should be entitled to the benefit of this statutorily created right of action, even where it results in injustice. Our role is to interpret the law, not to create it." Id. at 584, 420 S.E.2d at 575.[20]
*909 If Appellant's accusations against Appellee in this case are correct, we agree with Appellant that permitting Appellee to take an elective-share percentage of the augmented estate strikes the consciousness as being unjust. However, as is evident in the cases mentioned above, it is not the responsibility of the courts to legislate the rules of descent and distribution. Moreover, "`[a]t common law no degree of misconduct by the surviving spouse resulted in a forfeiture of his or her rights in the estate of the deceased spouse.'" In re Estate of Kostick, 514 Pa. 591, 526 A.2d 746, 747 (1987) (citation omitted). As spousal forfeiture is purely a creature of statute, this Court cannot impose a forfeiture without statutory authority.[21] Thus, we hold, in the absence of a statute to the contrary, abandonment will not bar a surviving spouse from exercising his or her right to take an elective-share percentage of an augmented estate pursuant to West Virginia Code § 42-3-1 (Supp.1992).
Notwithstanding, Appellant further argues "the doctrine of estoppel may `operate to cut off a right or privilege conferred by statute....'" Quoting 28 Am.Jur.2d, Estoppel and Waiver § 34, at 639 (1966) (footnotes omitted). Therefore, even if Appellee has a statutory right to take an elective share, Appellant contends she should be barred by her prior actions. Before the doctrine of equitable estoppel can operate to cut off a statutory right, however, the essential elements of equitable estoppel must be present.[22] As to the elements of equitable estoppel, we have said:
The general rule governing the doctrine of equitable estoppel is that in order to constitute equitable estoppel or estoppel in pais there must exist a false representation or a concealment of material facts; it must have been made with knowledge, actual or constructive of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.
Syl. Pt. 6, Stuart v. Lake Washington Realty Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956).[23] We find Appellee's conduct fails to establish these elements.[24]
Assuming Appellee's alleged conduct is true, the act of abandonment did not misrepresent or conceal anything from the testator. Certainly, the testator was fully aware his wife did not live with him. In addition, it is inconceivable that Appellee abandoned her husband with the intention he would not divorce her or that Appellee knew the legislature would pass sweeping statutory reforms nearly ten years later which would permit her to take as a surviving spouse despite her abandonment. As "courts cannot create estoppels where none have arisen from the act of the party sought to be estopped,"[25] we will not apply the doctrine of equitable estoppel to this case.[26]
*910 Moreover, the real basis of Appellant's complaint does not arise because of Appellee's actions. Instead, Appellant's objections are more accurately directed against the legislature for changing the law and bestowing Appellee with a statutorily-created right to elect against the testator's will. If the law had not changed, Appellee's actions, if proven, would have barred her from taking anything except the two items listed in the will. Under the law at the time of death, however, Appellee's alleged actions were no longer considered a bar. We will not usurp the legislature's power to designate those persons eligible to take under the elective-share statute by applying the doctrine of equitable estoppel for actions the legislature no longer considers a bar to taking an elective share.[27]
B.
The Augmented Estate
Appellant asserts this Court should set up a constructive trust to prevent Appellee from being unjustly enriched by those assets the testator owned prior to the marriage.[28] However, in the 1992 statutory revisions, the legislature set forth what assets are to be included in an augmented estate, and we adhere to those legislative mandates. See W. Va.Code § 42-3-2 (Supp. 1992) (setting forth the elements of an augmented estate). Although we decline to set up a constructive trust in favor of Appellant, we nevertheless find the circuit court erred as a matter of law in the manner it applied West Virginia Code § 42-3-2 to the joint tenancy property.
In its order entered on July 27, 1995, the circuit court correctly indicated the augmented estate includes "[t]he value of the decedent's probate estate....," which consists of "property, whether real or personal, movable or immovable, wherever situated, that would pass by intestate succession if the decedent died without a valid will." W. Va. Code § 42-3-2(b)(1)[29]; W. Va.Code § 42-3-2(a)(1)(iv). The circuit court then found that, because "the Decedent's property acquired before his marriage would pass by intestate succession under West Virginia Code section 42-1-2(a) (Supp.1995), if the decedent died without a valid will, that property should also be included in the Decedent's probate estate *911 under section 42-3-2(a)(1)(iv) (Supp.1995)."[30] The circuit court included among the assets of the augmented estate certain monies and certificates of deposit (hereinafter CDs) held by Appellant and his father as joint tenancy property. Appellant states that some of the CDs were titled jointly in his and his father's name prior to his father's marriage to Appellee and other CDs were purchased and titled jointly in his and his father's name during the course of the marriage. It also appears from the record that a savings account was titled jointly in both Appellant and his father's name.
Contrary to the circuit court's findings that all assets should be included as part the "probate estate," West Virginia Code § 42-3-2(b) and (d) (Supp.1992) clearly treat separately those assets which were held jointly with a right of a survivorship with someone other than the surviving spouse. As the circuit court did not address in its order the impact these provisions would have on the various joint tenancy property and these issues are not adequately briefed by the parties on appeal, it is necessary for us to remand this issue for further consideration.[31] Indeed, it may be necessary for the circuit court to hold an additional evidentiary hearing in order to determine precisely (1) what assets the testator and Appellant held as joint tenancy property, (2) when those assets were acquired, and (3) what amount, if any, of those assets should be included as part of *912 the augmented estate under the relevant statutory provisions.[32]
III.
CONCLUSION
For the foregoing reasons, we conclude Appellee has the right to take an elective-share percentage of the augmented estate pursuant to West Virginia Code § 42-3-1. However, we find under West Virginia Code § 42-3-2 additional consideration must be given to the joint tenancy property held by the testator and Appellant. Therefore, we remand this case for further proceedings on this issue.
Affirmed, in part, reversed, in part, and remanded.
NOTES
[1] Appellant's parents were divorced in 1971.
[2] Appellee denies Appellant's accusation of abandonment.
[3] Appellant was named the Executor of the testator's estate.
[4] West Virginia Code § 43-1-19 states in full:
If a husband or wife of his or her own free will leave his or her spouse and live in adultery and be not afterwards reconciled to, and live with, such spouse, or if a husband or wife shall voluntarily leave or abandon his or her spouse without such cause as would entitle such husband or wife to a divorce from the bond of matrimony or from bed and board, and without such cause and of his or her own free will be living separate and apart from such spouse at the time of the latter's death, such husband or wife shall be barred of dower in the estate of such spouse.
[5] In full, West Virginia Code § 42-3-3, states:
The provisions of this chapter in favor of the husband and the wife are all subject to this qualification, that if the husband would be barred of his dower in the estate of his wife, or the widow be barred of her dower in the estate of her husband, under any provision of law, neither shall have any part of the estate of the other, unless the same be given him or her by will and then only so much as is so given.
[6] "The estates of dower and curtsey [also were]... abolished." W. Va.Code § 43-1-1 (Supp. 1992).
[7] The revisions were passed on March 7, 1992 and took effect ninety days from passage. 1992 W. Va. Acts ch. 75. These revisions were modeled after the Revised Uniform Probate Code (1990). Mongold v. Mayle, 192 W.Va. 353, 355, 452 S.E.2d 444, 446 (1994). The general purpose behind adopting the elective-share statute was to prevent a husband or wife from disinheriting his or her spouse. Id. (citing generally John W. Fisher II & Scott A. Curnutte, Reforming the Law of Intestate Succession and Elective Shares: New Solutions to Age-Old Problems, 93 W. Va. L.Rev. 61, 98-115 (1990)). For additional information on the history and purpose of these revisions, see Mongold and the citations contained therein.
[8] For purposes of descent and distribution, a "`surviving spouse' means the person to whom the descendent was married at the time of the decedent's death." W. Va.Code § 42-1-1(39) (Supp.1992). As the testator and Appellee never divorced, Appellee clearly fits within this definition. In 1995, changes were made to West Virginia Code § 42-1-1, but these changes did not effect the definition of a "surviving spouse."
[9] Prior to the 1992 amendment, West Virginia Code § 42-3-1 (1982), generally provided that a surviving spouse could renounce a provision in a will made in his or her favor and take such share of the deceased spouse's estate as "if the decedent had died intestate leaving children[.]" W. Va.Code § 42-3-1. In relevant part, the 1992 version of West Virginia Code § 42-3-1 stated:
The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this part, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other....
W. Va.Code § 42-3-1(a) (emphasis added). This section was amended in 1993 and 1995. In part, the 1993 amendment added the phrase "against either the will or the intestate share" after the word "election" in the first sentence of subsection (a). The 1995 amendment, in part, deleted the phrase "an elective-share amount equal to the value of the" preceding the phrase "elective-share percentage" in the first sentence of subsection (a). Other changes were made to this section in 1993 and 1995, but those changes are not relevant to the present case.
[10] Appellee and the testator were married for more than eleven but less than twelve years when the testator died.
[11] In syllabus point four of Weiss, we held: "The paramount rule in construing a will is that the intention of the testator controls and must be given effect, unless the intention violates some positive rule of law or public policy." Id. (emphasis added).
[12] In simplistic terms, the testator's intent was to give the bulk of his estate to his son, while leaving a trailer and a clock to his wife.
[13] It is established in West Virginia that "[a] will shall be construed, with reference to the estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will." W. Va.Code 41-3-1 (1982).
[14] On the other hand, "[i]n the absence of an intent to the contrary manifested in the will, the law in effect at the time of execution of the will governs the determination of the testator's intent...." 95 C.J.S. § 587(f) at 724. See also William J. Bowe & Douglas H. Parker, 4 Page on Wills § 30.26 at 165 (rev. ed 1961) (stating "a will speaks from the time of execution as to its meaning and from the death of testator as to its effect and operation").
[15] Of course, one exception to this principle would be if "it is clear that the Legislature intended the statute to apply only to wills executed after its passage." McCauley, 143 W.Va. at 776, 105 S.E.2d at 133 (citations omitted). For example, West Virginia Code § 41-1-10 (1982) states, in part: "The validity and effect of wills executed prior to the time this Code becomes effective [January 1, 1931] shall be determined by the laws of this State in force at the time of their execution." In McCauley, we relied upon this statute as an expression of legislative intent and held the legal effect of the will at issue was governed by the law at the time of execution, April 2, 1928. Id. at 775-76, 105 S.E.2d at 132. In the present case, however, we find no similar applicable expression of legislative intent; therefore, the law in effect on the date of death continues to control.
[16] As an aside, we notice the legislature retained a statute qualifying homicide as a bar to the acquisition of an estate or insurance money. See W. Va.Code § 42-4-2 (1982).
[17] Obviously, if the abandonment provision was ever resurrected by the legislature and adopted as a part of the current statutory scheme, it would be necessary to revise the language of the repealed version to eliminate the reference to dower. See supra note 4.
[18] See 23 Am.Jur.2d Descent and Distribution § 129, at 855-56 (1983) (stating that without "a controlling statute, it is held generally that misconduct... cannot exclude one from taking as a surviving spouse ... [because to do so] would be to read into the statutes of descent and distribution an exception which they do not make, and [it] would be an encroachment on ... the legislature").
[19] See also United States v. McCarty, 144 F.2d 341 (10th Cir.1944) (holding under Oklahoma law a husband who abandoned his wife and entered into a bigamous marriage with another woman was not estopped from claiming a share of his lawful wife's estate because statutory provisions are not governed by equitable considerations); In re Torres' Estate, 61 Nev. 156, 120 P.2d 816, 818 (1942) (stating "the great weight of authority is against ... [the] contention that ... [a husband] is barred by his misconduct from taking any part of the decedent's estate" and if the court would read an abandonment exception into the relevant statute, "it would be encroaching upon the field of the legislature"); In re Zolessi's Will, 154 Misc. 313, 277 N.Y.S. 137, 140-41 (1935) (determining "[t]he omission [of an abandonment provision] ... during the recent amendments of the laws affecting the distribution of a decedent's estate must be deemed intentional[] [and,] [e]ven were it the result of oversight or neglect, ... [the court has] no power to supply the omission or to remedy the effect of the neglect"). Cox v. Cox, 95 Okla. 14, 217 P. 493 (1923) (finding no statutory grounds to exclude wife, the court had no alternative but to apply the law as prescribed by the legislature and permit wife to participate in the estate of her husbanddespite the fact that wife left her husband after two months of marriage); E.L. Strobin, Annotation, Abandonment, Desertion, or Refusal to Support on Part of Surviving Spouse as Affecting Marital Rights in Deceased Spouse's Estate, 13 A.L.R. 3d 446, 455-57 (1967).
[20] It also was recognized in Gosiene that, while severe inequities may result from blindly applying the distribution statute, "nonetheless `the legislature must have necessarily recognized that such inequities would occur under the statute. Thus, the trial court was, and this Court is, without the power to conform the statute to its conception of justice under the facts of this case.'" Id. (quoting Crosby v. Corley, 528 So. 2d 1141, 1144 (Ala.1988)). Other jurisdictions have arrived at the same conclusion. See Hotarek v. Benson, 211 Conn. 121, 557 A.2d 1259, 1263 (1989) (declaring statutory change must come from the legislature and in the absence of a statute preventing a parent who has abandoned a minor child from inheriting, such parent is not barred from his or her rights under descent and distribution); Brady v. Fitzgerald, 229 Miss. 67, 90 So. 2d 182, 184 (1956) (determining father who abandoned his son was not precluded under Arizona law from taking one-half of the judgment for the death of his son in Arizona); Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, 756-57 (1963) (deciding that, without a statute to the contrary, a father who abandons a child is entitled to a distributive share of the money received for the wrongful killing of the child).
[21] "Under common-law principles all rights, liabilities, penalties, forfeitures and offenses which are of purely statutory derivation and unknown to the common law are eliminated by the repeal of the statute which granted them, irrespective of the time of their accrual." 1A Norman J. Singer, Sutherland Stat. Const. § 23.33 at 424-25 (5th ed.1993) (footnote omitted).
[22] See 31 C.J.S., Estoppels and Waiver § 73, at 448 (1996) ("There can be no estoppel if any of the requisite elements thereof are wanting. They are each of equal importance.").
[23] In Syllabus point seven of Stuart, we also stated: "To raise an equitable estoppel there must be conduct, acts, language or silence amounting to a representation or a concealment of material facts." Id. These principles are well established in West Virginia. See Jolynne Corp. v. Michels, 191 W.Va. 406, 416, 446 S.E.2d 494, 504 (1994); Syl. Pt. 2, Hunter v. Christian, 191 W.Va. 390, 446 S.E.2d 177 (1994); see also Syl. Pt. 2, Helmick v. Broll, 150 W.Va. 285, 144 S.E.2d 779 (1965) ("It is essential to the application of the principles of equitable estoppel that the one claiming the benefit thereof establish that he relied, to his disadvantage or detriment, on the acts, conduct or representation of the one alleged to be estopped.").
[24] As the requisite elements of estoppel are missing, this case is distinguishable from Juran v. Epstein, 23 Cal. App. 4th 882, 28 Cal. Rptr. 2d 588 (1994), cited by Appellant.
[25] 31 C.J.S., Estoppels and Waiver § 73, at 448.
[26] Likewise, we find the doctrine of quasi estoppel does not apply. Although we can find no cases in West Virginia specifically applying the doctrine of quasi estoppel, it is said to operate to "preclude[] a party from asserting, to another's disadvantage, a right inconsistent with a position previously taken by him." 31 C.J.S. Estoppel and Waiver § 120, at 543. The basis of this doctrine is "in election, waiver, ratification, affirmance, acquiescence, or acceptance of benefits...." Id. Given that abandonment no longer qualifies as a statutory bar, there is no evidence in this case that Appellee elected, waived, ratified, affirmed, acquiesced, or accepted any benefits contrary to her statutory rights.
[27] For these same reasons, Appellant's allegations that the testator was in poor health when the law was revised cannot estop Appellee from asserting her rights under the elective-share provision. Contrary to Appellant's contention, we also mention that the testator did not need to divorce Appellee to prevent her from asserting her statutory rights upon his death. Appellee's rights could have been waived by "a complete property settlement entered into after or in anticipation of separation or divorce...." W. Va. Code § 42-3-3a (Supp. 1992). West Virginia Code § 42-3-3a provides, in part:
(a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead exemption, exempt property, or any of them, may be waived ... by a written contract, agreement, or waiver signed by the surviving spouse.
....
(d) Unless it provides to the contrary, a waiver of "all rights" ... in the property or estate of a present ... spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, and exempt property by each spouse in the property of the other and renunciation by each of all benefits that would otherwise pass to him or her from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.
W. Va.Code § 42-3-3a. This section was amended in 1993.
[28] "A constructive trust is an implied trust and arises by operation of law when equity so demands." Province v. Province, 196 W.Va. 473, 482 n. 17, 473 S.E.2d 894, 903 n. 17 (1996).
[29] In full, West Virginia Code § 42-3-2(b)(1) provides: "(1) The value of the decedent's probate estate, reduced by funeral and administrative expenses, homestead exemption, property exemption, and enforceable claims[.]"
[30] Throughout the circuit court's order, we notice the 1995 supplement is referenced. However, West Virginia Code § 42-3-2 was amended in 1993 and amended significantly in 1995. In calculating the augmented estate, it is critical to use the correct version of the provision. In this case, the 1992 version applies.
[31] By way of assistance, but not limitation, we specifically direct the circuit court's attention to the 1992 version of West Virginia Code § 42-3-2(b) and (d) which state, in part:
(b) The augmented estate consists of the sum of:
....
(2) The value of the decedent's reclaimable estate. The decedent's reclaimable estate is composed of all property, whether real or personal, movable or immovable, wherever situated, not included in the decedent and any other person, except the decedent's probate estate, of any of the following types:
....
(ii) Property, to the extent of the decedent's unilaterally severable interest therein, held by the decedent and any other person, except the decedent's surviving spouse, with right of survivorship, acquired during the marriage of the decedent and the surviving spouse, if the decedent held that interest immediately before his or her death or if and to the extent the decedent, while married to his or her surviving spouse and during the two-year period preceding the decedent's death, transferred that interest to any person other than the decedent's surviving spouse;
....
(iv) Property transferred by the decedent to any person other than a bona fide purchaser at any time during the decedent's marriage to the surviving spouse, to or for the benefit of any person, other than the decedent's surviving spouse, if the transfer is of any of the following types:
....
(C) Any transfer of property, to the extent the decedent's contribution to it, as a percentage of the whole, was made within two years before the decedent's death, by which the property is held, at the time of or during the two-year period next preceding the decedent's death, by the decedent and another, other than the decedent's surviving spouse, with right of survivorship;
....
(d) Property is valued as of the decedent's death, but property irrevocably transferred during the two-year period next preceding the decedent's death which is included in the decedent's reclaimable estate under subsection (b)(2)(i), (ii), and (iv) is valued as of the time of the transfer. If the terms of more than one of the subparagraphs or sub-subparagraphs of subsection (b)(2) apply, the property is included in the augmented estate under the subparagraph or sub-subparagraphs that yields the highest value. For the purposes of this subsection, an "irrevocable transfer of property" includes an irrevocable exercise or release of a power of appointment.
W.Va.Code § 42-3-2(b) and (d); see also John W. Fisher II, Statutory Reform Revisited: Toward a Comprehensive Understanding of the New Law of Intestate Succession and Elective Share, 96 W. Va. L.Rev. 85, 101 (1993) (reporting "[t]he example provided to the House Judiciary Committee to illustrate the purpose" behind West Virginia Code § 42-3-2(b)(2)(ii)); Patricia J. Roberts, The 1990 Uniform Probate Code's Elective-Share Provisions West Virginia's Enactment Paves the Way, 95 W. Va. L.Rev. 55 (1992) (providing numerous illustrations of how to calculate an augmented estate); see generally W. Va.Code § 31A-4-33 (Supp.1992) (addressing joint deposit accounts); John W. Fisher II, Joint Tenancy in West Virginia: A Progressive Court Looks at Traditional Property Rights, 91 W. Va. L.Rev. 267 (1988-89) (discussing history of joint tenancy in West Virginia).
[32] We notice the circuit court held a hearing on December 16, 1994, at which time the issue of pre-marital assets was discussed to some extent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330380/ | 490 S.E.2d 823 (1997)
200 W.Va. 735
WEST VIRGINIA DIVISION OF ENVIRONMENTAL PROTECTION, Plaintiff Below, Appellant
v.
KINGWOOD COAL COMPANY, Defendant Below, Appellee.
No. 23876.
Supreme Court of Appeals of West Virginia.
Submitted April 29, 1997.
Decided July 16, 1997.
*825 Christopher D. Negley, Assistant Chief Office of Legal Services, West Virginia Division of Environmental Protection, Charleston, for Appellant.
Leonard Knee, Benjamin L. Bailey, Bowles Rice McDavid Graff & Love, P.L.L.C., Charleston, for Appellee.
Robert G. McLusky, James R. Snyder, Jackson & Kelly, Charleston, for Amicus Curiae West Virginia Coal Association and West *826 Virginia Mining and Reclamation Association.
*824 McHUGH, Justice:
This case is before this Court on an appeal by the West Virginia Division of Environmental Protection (hereinafter "DEP") of a May 24, 1996 order of the Circuit Court of Kanawha County, affirming an August 28, 1995 final order of the West Virginia Surface Mine Board. The issues in this appeal concern whether Kingwood Coal Company (hereinafter "Kingwood") "owned or controlled" T & T Fuels, Inc. (hereinafter "T & T") within the meaning of West Virginia's Surface Coal Mining and Reclamation Act, W. Va.Code, 22-3-1 et seq. (hereinafter "SCMRA"), and its corresponding rule, 38 C.S.R. 2-2.84(b)(6) (1996). For the reasons discussed herein, the circuit court's order is affirmed.
I.
Factual and Procedural Background
On or about December 15, 1971, T & T entered into a lease agreement with Kingwood Mining Company (hereinafter "KMC") which granted to T & T the exclusive mining rights to certain tracts of land in Preston County, West Virginia.[1] This lease agreement corresponds to the mine referred to as T & T Mine No. 2. Also on that date, the parties entered into a coal sales agreement in which KMC agreed to purchase T & T's entire production of coal from tracts leased from KMC.
On or about March 25, 1977, T & T and KMC amended the 1971 lease agreement to include the mineral rights to adjacent tracts of land for the mine referred to as T & T Mine No. 3. Also on that date, KMC and T & T entered into a new coal sales agreement, intended to supersede and replace the coal sales agreement previously entered into.
In 1990, KMC sold to Kingwood, the appellee herein, substantially all of its assets, including a preparation plant located in Albright, West Virginia, where the coal mined from Mine Nos. 2 and 3 was "washed" to make it saleable to KMC's customers. Kingwood also obtained the rights in the leases for Mine Nos. 2 and 3, as well as the coal sales agreements relative thereto.
In 1992, T & T completed coal removal in Mine No. 2 and, in 1993, coal removal in Mine No. 3 was likewise completed. Though T & T had installed a mine seal in Mine No. 2 in 1993, a blowout of acid mine drainage (hereinafter "amd") occurred at that mine in 1994, causing millions of gallons of amd to discharge into the Cheat River.[2] According to the DEP, it is currently spending $60,000 per month[3] to treat the amd discharged from the mines.[4]
Soon after, the DEP learned that Kingwood not only leased the mining rights to T & T but that it also had the exclusive right to receive the coal after mining. The DEP subsequently requested and obtained documentation from Kingwood which ultimately established the presumption that Kingwood owned or controlled Mine Nos. 2 and 3 under 38 C.S.R. 2-2.84(b)(6) (1996) of the SCMRA.[5]*827 38 C.S.R. 2-2.84(b)(6) (1996) (hereinafter also referred to as "(b)(6)" or "(b)(6) presumption") provides:
2.84 Owned or Controlled and Owns or Controlsmeans any one or a combination of the relationships specified in paragraphs (a) and (b) of this definition:
....
(b) The following relationships are presumed to constitute ownership or control unless a person can demonstrate that the person subject to the presumption does not in fact have the authority directly or indirectly to determine the manner in which the relevant surface mining operation is conducted:
....
(6) Owning or controlling coal to be mined by another person under a lease, sublease or other contract and having the right to receive such coal after mining or having authority to determine the manner in which that person or another person conducts a surface mining operation.[6]
(emphasis and footnote added)
Also pursuant to (b)(6), Kingwood was advised that it would have the opportunity to rebut the presumption that it owned or controlled T & T. 38 C.S.R. 2-2.84(b)(6) (1996)[7] ("(b) The following relationships are presumed to constitute ownership or control unless a person can demonstrate that the person subject to the presumption does not in fact have the authority directly or indirectly to determine the manner in which the relevant surface mining operation is conducted [.]" Id. (emphasis added)). In an effort to do so, Kingwood submitted various documents, affidavits and arguments to the DEP[8]*828 over a period of several months. See Discussion, infra.
The Director of the DEP issued a Final Agency Decision (hereinafter "DEP-FAD") on April 25, 1995, in which it was ultimately concluded, based upon the various documentation obtained from Kingwood, that KMC, whose assets were purchased by Kingwood in 1990, "not only had the authority to directly or indirectly determine the manner in which T & T conducted their underground mining, but KMC did directly control T & T's mining activity." (emphasis provided). In so concluding, the DEP-FAD referred to "memoranda between KMC employees, where the employees of KMC discuss which T & T mine should mine certain coal, where T & T should place their headings, whether or not to mine in existing headings, where to put the next panel, to stop mining in a certain area because of poor quality coal, etc." The DEP-FAD thus found that the evidence showed that "KMC was at the least highly involved [i]n determining where and how T & T would mine, this direction of T & T's activities by KMC is not evidence of the independent relationship advanced by [Kingwood] in their rebuttal."
The DEP-FAD further found there to be evidence that upon the sale of KMC's assets, Kingwood "intended to carry on, at least in terms of their relationship with T & T, where KMC left off. As has been shown, KMC exerted direct control of the activities of T & T relative to its deep mines."[9] (footnote added) The DEP-FAD found that the documents that governed KMC and T & T's relationship also governed Kingwood's relationship with T & T and "that there was no change through the transition to [Kingwood] in the management that was with KMC ... [Kingwood] certainly had the authority directly or indirectly to determine the manner and method of mining on the permits in question." (emphasis provided).
It was expressly stated in the DEP-FAD that the determinative element in evaluating the evidence submitted by Kingwood was not whether it actually exercised control over T & T, but whether it had the authority to exercise control. The DEP-FAD concluded that there were "many indicia of control present in T & T's relationship with KMC and [Kingwood], so DEP finds that [Kingwood] has not met its burden to prove by a preponderance of evidence that it lacked the *829 authority, directly or indirectly, to determine the manner in which T & T conducted the relevant surface mining operations."[10] (emphasis provided and footnote added).
Pursuant to 38 C.S.R. 2-2.84(b)(6) (1996), the DEP-FAD concluded that Kingwood was considered to be an owner or controller of T & T's mining operations in that Kingwood failed to demonstrate, by a preponderance of the evidence,[11] that it did not have the authority, directly or indirectly, to do so. As a result, the environmental violations relative to Mine Nos. 2 and 3 were to be linked to Kingwood and all of its owners and controllers through the AVS, see n. 8, supra, and Kingwood and all of its owners and controllers would be "blocked" from obtaining any new surface mining permits. See 53 Fed. Reg. 38871 (1988).
Appeal to Surface Mine Board
Pursuant to W.Va.Code, 22-3-17(e) [1994], Kingwood filed a petition for appeal of the DEP-FAD with the Surface Mine Board (hereinafter "Board").[12]See W. Va.Code, 22B-4-1 [1994] ("Appointment and organization of surface mine board"). A ten-hour hearing on Kingwood's petition was conducted before the Board on July 17, 1995. In addition to the complete record considered by the DEP and the additional documents presented to it at the hearing, the Board heard the testimony of six fact witnesses and two expert witnesses on behalf of Kingwood, as well as the testimony of two fact witnesses on behalf of the DEP. The Board also asked questions of the parties' witnesses and of their counsel.
In a final order entered August 28, 1995, the Board reversed the DEP's Final Agency Decision, ultimately concluding that neither KMC nor Kingwood controlled T & T and further, that neither KMC nor Kingwood "has or had actual authority to determine the manner in which T & T conducts or conducted its mining operations." The Board made the following relevant findings of fact:
6. T & T was required under the lease and coal sales agreements to maintain its operations separate and independent of KMC or Kingwood. KMC and Kingwood did not have the right under the lease or the coal sales agreements to approve the mining plans or mine projections for the T & T mines. The only thing that T & T was required to provide to KMC or Kingwood under the lease was a copy of the six month progress maps for the mines.
7. T & T prepared all mining plans, permit applications, mine projections, health and safety plans, maps, and all other necessary documentation for the T & T mines. All permits for the T & T mines were in T & T's name. T & T did its own engineering work, or had it done by outside consultants. Kingwood did not do any engineering work for T & T. T & T paid all of its own bills, and Kingwood never loaned any money to T & T. Kingwood did not participate in regulatory inspections of the T & T mines, and Kingwood did not receive copies of inspection reports, notices of violation, cessation orders, or penalty assessments.
8. In 1990 John T. Clark, a Registered Professional Engineer, was hired by Kingwood as Chief Engineer. John Clark was employed by Kingwood from 1990 to 1994. During his employment by Kingwood, John Clark also did work for several local engineering consulting firms on his own *830 time. This practice is commonly known as moonlighting. As part of his moonlighting activities for a local engineering firm, John Clark sealed several mine maps for T & T. This was done by John Clark in his private capacity and was not done as an employee of Kingwood. John Clark did not prepare any maps, plans, or permit applications for T & T. The signing of T & T maps by John Clark was not done for or on behalf of Kingwood, and John Clark's signing of these mine maps for T & T did not give Kingwood any control over T & T.
9. Under the lease and coal sales agreement, Kingwood had the right to suggest matters dealing with protection of the reserves and quality of the coal. During active mining, KMC and Kingwood did on occasion make suggestions to T & T dealing with protection of the coal reserves and the quality of the coal. KMC and Kingwood occasionally requested that T & T take certain actions in order to protect the reserves or to improve the quality of the coal. However, Kingwood never demanded, nor did it have the right to demand, that T & T take any particular action with regard to the T & T mines. KMC's and Kingwood's requests were appropriate under the lease and coal sales agreements.
10. During the mining, T & T would from time to time seek the approval of KMC, and later Kingwood, to withdraw from an area of the mine or not to mine in the area. KMC and Kingwood would approve such requests. KMC and Kingwood were concerned that T & T obtain, as T & T was required to do under the lease, all of the minable and merchantable coal. When T & T withdrew from an area of the mine, any remaining coal would become difficult or impossible to mine. Thus, coal reserves would be lost. Kingwood and KMC's approval of T & T's requests to leave reserves was appropriate under the lease to protect the coal reserves.
11. T & T owned the coal when it was removed from the ground. The method of determining the price paid by KMC to T & T for the coal changed several times over the years. Kingwood paid a flat rate for the coal it bought from T & T. Regardless of how it was determined, the price paid to T & T was influenced by the ultimate market price received for the coal by either KMC or Kingwood.
12. Under the coal sales agreements KMC, and subsequently Kingwood, had the right to buy the coal produced by T & T from the mineral reserves leased to it by KMC. The 1977 coal sales agreement required T & T to sell to KMC and subsequently to Kingwood all of the coal mined by it from the mineral reserves it leased from KMC. Approximately fifteen percent of the coal mined in the T & T # 3 mine was private mineral not leased from KMC or Kingwood. T & T was free to sell this coal to whomever it pleased. During one period in the mid to late 1980's, KMC could not take all of the coal produced by T & T, and KMC approved coal sales by T & T to third parties that amounted to about 400,000 tons. The 1977 coal sales agreement allowed T & T to make coal sales to third parties without approval by KMC or Kingwood if for any reason KMC or Kingwood could not buy all the coal produced by T & T for a forty-five day period.
13. The Board finds that T & T was not under the control of any other organization.
In addition, the Board made the following relevant conclusions of law:
2. [38 C.S.R. 2-2.84(b)(6) (1996)] creates the presumption of control if DEP can prove that Kingwood owned or controlled the coal mined by T & T and had the right to receive such coal. Alternatively, even without the presumption, DEP could prove that Kingwood had the authority to determine the manner in which T & T conducted its surface mining operation.
3. The DEP asserts in the FAD at page 18: `The implied authority possessed by Kingwood over the operations conducted under the relevant permits cannot be lightly discounted.' However, [the Office of Surface Mining] describes the nature of the authority in question as `actual,' as opposed to `express' or `implied' authority. 53 FR 38868, at 38870 and 38877, October 3, 1988.
*831 4. In determining whether Kingwood had control over T & T, the test to be applied is the actual authority of Kingwood over the operations of T & T. 53 Federal Register 38868 at 38870 and 38877, October 3, 1988.
5. In this case no issue has been presented about any possible stock ownership relationship between T & T and either Kingwood or KMC.
6. The [Office of Surface Mining] and DEP regulations describe actual authority in terms of `direct' and `indirect' authority. Direct authority is that authority conferred by operation of law or by the creation of legally enforceable rights between the parties through mutually binding agreements.
7. In this case, Kingwood's ability to directly require T & T to act in the fashion that Kingwood wanted was limited by the lease and its amendments and the coal sales agreements between Kingwood and T & T. Kingwood did not have the right under the lease and the coal sales agreements to require T & T to conduct its operations as Kingwood directed. The lease and its first amendment and the coal sales agreements were entered into before the Surface Mining Act came into effect in 1977, and were between parties of sufficient resources and business experience as to be arms length transactions. Accordingly, Kingwood had no direct authority to control T & T.
8. Kingwood could not terminate either the lease or any of the coal sales agreement[s] arbitrarily or without reason. In this case Kingwood's inability to indirectly force T & T to comply with Kingwood's wishes was limited by the lease and coal sales agreements. T & T was able under the lease to take disputes to arbitration, and under the coal sales agreements it could litigate disputes. Kingwood had no unilateral right sufficient to force T & T to accede to Kingwood's wishes. For example, had Kingwood at any time canceled the coal sales agreement, then the lease with T & T still would have been in effect and T & T could have sold the coal to third parties. Kingwood was and is unable to unilaterally impose sufficient consequences on T & T to force T & T to comply with Kingwood's wishes. Accordingly, Kingwood lacked sufficient indirect authority to control T & T.
9. The Board finds that Kingwood presented sufficient evidence to overcome any presumption of control created by the relationship between the parties. Since the Board is basing its ruling upon all the evidence, the Board does not accept or reject the other arguments advanced by Kingwood. The Board, for the purposes of this Decision, has considered the actions of both KMC and Kingwood in determining whether T & T was controlled by someone else.
10. A preponderance of the evidence establishes that Kingwood's activities under the lease were necessary and appropriate to protect the coal reserves and attempt to ensure maximum recovery of the reserve, and are not evidence of control.
11. A preponderance of the evidence establishes that Kingwood's activities under the coal sales agreements were proper to ensure that the coal could be processed to meet the quality requirements needed to fulfil its supply orders and are not evidence of control.
12. Kingwood has established by a preponderance of all of the evidence that T & T is not and was not under the control of either KMC or Kingwood. The preponderance of the evidence in the record establishes that regardless of whether the presumption does or does not exist, neither KMC nor Kingwood has or had actual authority to determine the manner in which T & T conducts or conducted its mining operations.
13. DEP acted unlawfully in issuing its Final Agency Decision of April 25, 1995, finding that Kingwood owned or controlled T & T.
The effect of the Board's decision was that of dissolving the ownership and control link between Kingwood and T & T.[13]
*832 Appeal to Circuit Court
On September 26, 1995, the DEP filed a petition for appeal of the Board's final order in the Circuit Court of Kanawha County, pursuant to W. Va.Code, 22B-1-9 [1994] (general provisions for judicial review) and 29A-5-4 [1964] (judicial review of contested cases) of the State Administrative Procedures Act ("APA"). The circuit court heard arguments on the matter on May 15, 1996. At the hearing, counsel for the DEP contended that Kingwood failed to successfully rebut the presumption that it "owned or controlled" T & T's mining operations. 38 C.S.R. 2-2.84(b)(6) (1996).
After hearing arguments of counsel for both the DEP and Kingwood, the circuit court affirmed the Board's final order, concluding that the board's decision was not "clearly wrong." See W. Va.Code, 29A-5-4(g)(5) [1964]("(g) The court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are:.... (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record [.]"). The circuit court entered an order to this effect on May 24, 1996. It is from this order that the DEP now appeals.
II.
The primary issue in this case is whether KMC or Kingwood "owned or controlled" T & T's mining operations relative to Mine Nos. 2 and 3. As stated earlier, determination of whether Kingwood "owned or controlled" T & T's mining operations is governed by 38 C.S.R. 2-2.84(b)(6) (1996),[14]supra.
The DEP raises several issues with regard to the (b)(6) presumption.[15] A threshold issue is whether the Surface Mine Board applied the proper standard of review when it considered the appeal of the DEP's Final Agency Decision, which decision had concluded that Kingwood owned or controlled T & T's mining operation within the meaning of (b)(6). The remaining issues relative to the (b)(6) presumption are as follows: (1) whether the Board improperly imposed on the DEP the burden of proving that Kingwood "actually" controlled T & T; and (2) whether the Board committed error in concluding that "[a] preponderance of the evidence establishes that Kingwood's activities under the lease were necessary and appropriate to protect the coal reserves and attempt to ensure maximum recovery of the reserve, and are not evidence of control[,]" and further, that "[a] preponderance of the evidence establishes that Kingwood's activities under the coal sales agreements were proper to ensure that the coal could be processed to meet the quality requirements needed to fulfill its supply orders and are not evidence of control."
*833 A.
The first issue with regard to 38 C.S.R. 2-2.84(b)(6) (1996) is whether the Board employed the proper standard of review when it considered the appeal of the DEP's Final Agency Decision.
As stated above, the DEP-FAD concluded that Kingwood owned or controlled T & T's mining operations relative to Mine Nos. 2 and 3 within the meaning of (b)(6). Kingwood appealed the DEP-FAD to the Surface Mine Board in accordance with the provisions of W. Va.Code, 22B-1-7 [1994] ("Appeals to boards"). See W. Va.Code, 22B-1-7(b) [1994] ("Any person authorized by statute to seek review of an order ... of the ... director may appeal to the ... surface mine board ... in accordance with this section.")
The standard of review in such an appeal, though provided by statute, is ambiguous. Indeed, while there are two statutory provisions which purport to guide the Board's appellate review of a DEP-FAD, these provisions are inharmonious. It is therefore this Court's duty to construe them in order to effectuate the legislature's intent. As we held in syllabus point 2 of Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992), "`[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.' Syllabus Point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975)."
W. Va.Code, 22B-1-7(e) [1994] provides that the appeal to the Board is to be heard de novo:
(e) Within fourteen days after receipt of a copy of the notice of appeal, the ... director ... shall prepare and certify to the board a complete record of the proceedings out of which the appeal arises including all documents and correspondence in the applicable files relating to the matter in question. With the consent of the board and upon such terms and conditions as the board may prescribe, any person affected by the matter pending before the board may by petition intervene as a party appellant or appellee.... The board shall hear the appeal de novo, and evidence may be offered on behalf of the appellant, appellee and by any intervenors. The board may visit the site of the activity or proposed activity which is the subject of the hearing and take such additional evidence as it considers necessary [.]
Id., in relevant part.
Under the above-quoted provision, not only does the Board consider "the complete record of the proceedings out of which the appeal arises including all documents and correspondence in the applicable files relating to the matter in question [,]" id., but in addition, "evidence may be offered on behalf of the appellant, appellee and by any intervenors."[16]Id. (footnote added). Moreover, "the board may visit the site of the activity... which is the subject of the hearing and take such additional evidence as it considers necessary." Id.
In contrast to the above provision requiring a de novo hearing on appeal to the Board, a second provision, W. Va.Code, 22B-1-7(g)(2) [1994] requires the board to affirm a DEP-FAD if it finds the decision to be "lawful and reasonable." Id. However, if the Board finds that such decision "was not supported by substantial evidence in the record considered as a whole," the Board is required to reverse or modify the DEP-FAD. Id. W. Va.Code, 22B-1-7(g)(2) [1994] states:
(g) After such hearing and consideration of all the testimony, evidence and record in the case:
....
(2) The surface mine board shall make and enter a written order affirming the decision appealed from if the board finds that the decision was lawful and reasonable, or if the board finds that the decision was not supported by substantial evidence in the record considered as a whole, it shall make and enter a written order reversing or modifying the decision of the director.
Upon careful examination and comparison of these two standards of appellate review, we find that the Board properly conducted *834 a de novo hearing of the appeal from the DEP-FAD, as such hearing was intended by the legislature. As stated above, W. Va. Code, 22B-1-7(e) [1994] requires that the Board hear appeals from a DEP-FAD de novo. Id. ("The board shall hear the appeal de novo [.]" (emphasis added)). The term "de novo" means "`[a]new; afresh; a second time.'" Frymier-Halloran v. Paige, 193 W.Va. 687, 693, 458 S.E.2d 780, 786 (1995) (quoting Black's Law Dictionary 435 (6th ed. 1990)). The term "hearing de novo" means "[g]enerally, a new hearing or a hearing for the second time, contemplating an entire trial in same manner in which matter was originally heard and a review of previous hearing. Trying matter anew the same as if it had not been heard before and as if no decision had been previously rendered. On hearing `de novo' court hears matter as court of original and not appellate jurisdiction." Black's Law Dictionary 721 (6th ed.1990). (citations omitted and emphasis added).
As stated above, at a de novo hearing before the Board, it not only considers the complete record which was before the DEP, but it is also authorized to "take such additional evidence as it considers necessary[.]" Id. Moreover, a person who was not a party in the original proceeding before the DEP "may by petition intervene as a party" on appeal in the first instance. Id. The Board may also "visit the site of the activity ... which is the subject of the hearing [.]" Id.
Clearly, in authorizing the Board to try the case anew, the legislature intended that the Board be the ultimate finder of fact and to act independently on the evidence before it. Perlman/Rocque v. Review Board, 649 N.E.2d 701, 706 (Ind.Ct.App.1995). Indeed, W. Va.Code, 22B-1-7(i) [1994] requires that the Board's order "shall be accompanied by findings of fact and conclusions of law as specified in [W. Va.Code, 29A-5-3 of the Administrative Procedures Act.]" Id. Thus, in a de novo hearing, the Board "is not concerned with what took place below ... [a]s no presumption of correctness attaches to the action of the [DEP]." Big Fork Mining Co. v. Tennessee Water Quality Control Bd., 620 S.W.2d 515, 521 (Tenn.Ct.App.1981). See Linstad v. Sitka School Dist., 863 P.2d 838, 841 n. 8 (Alaska 1993) (quoting 2 Am.Jur.2d Administrative Law § 698, at 597 (1962)); La Salle Partners, Inc. v. PTAB, 269 Ill. App. 3d 621, 207 Ill. Dec. 101, 105, 646 N.E.2d 935, 939, appeal denied by 163 Ill. 2d 560, 212 Ill. Dec. 422, 657 N.E.2d 623 (1995); Grasso v. Borough Council of Bor. of Glassboro, 205 N.J.Super. 18, 500 A.2d 10, 14 (1985), cert. denied, 103 N.J. 453, 511 A.2d 639 (1986); Fall River County v. S.D. Dept. Of Rev., 552 N.W.2d 620, 624 (S.D.1996) ("De novo refers to a plenary form of review that affords no deference to the previous decisionmaker.").
Based on the above, we find the Board's statutory authority to hear de novo appeals from a DEP-FAD, W. Va.Code, 22B-1-7(e) [1994], authorizing it "`to make an entirely independent determination, unencumbered by any presumptions regarding [the DEP-FAD],'" Linstad, 863 P.2d at 841 n. 8 (quoting 2 Am.Jur.2d Administrative Law § 698 at 598 (1962)), to be inharmonious with the language of W. Va.Code, 22B-1-7(g)(2) [1994], which requires the Board to affirm a DEP-FAD if it is "lawful and reasonable" unless the DEP-FAD "was not supported by substantial evidence in the record considered as a whole[,]" in which case, the Board must reverse or modify the DEP-FAD. Id. The deference W. Va.Code, 22B-1-7(g)(2) [1994] purportedly requires the Board to exercise in an appeal from a DEP-FAD contravenes the essential aspect of a hearing de novothe reviewing entity's authority to exercise its independent judgment. Linstad, 863 P.2d at 841 n. 8.
We conclude therefore that appeals of a final agency decision issued by the director of the division of environmental protection shall be heard de novo by the surface mine board as required by W.Va.Code, 22B-1-7(e) [1994]. The board is not required to afford any deference to the DEP decision but shall act independently on the evidence before it.
The record in this case, which will be discussed in more detail below, clearly reflects that the Board conducted a de novo hearing and exercised its independent judgment on the evidence before it.
*835 B.
By order entered May 24, 1996, the circuit court, having reviewed the Board's final order pursuant to W. Va.Code, 29A-5-4(g)(5) [1964] of the APA,[17] and after hearing arguments on the matter, concluded that the Board's final order was not "clearly wrong."
In syllabus point 1 of HCCRA v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996), we stated:
`"Upon judicial review of a contested case under the West Virginia Administrative Procedure[s] Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are `(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.'" Syl. Pt. 2, Shepherdstown Volunteer Fire Department v. Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).' Syllabus Point 1, St. Mary's Hospital v. State Health Planning and Development Agency, 178 W.Va. 792, 364 S.E.2d 805 (1987).
In that this Court reviews the circuit court's order de novo, we apply the same standard as did the circuit court. HCCRA, 196 W.Va. at 334-35, 472 S.E.2d at 419-20. Thus, we likewise review the Board's decision pursuant to the standard of review articulated in W. Va.Code, 29A-5-4(g) [1964], supra, and syllabus point 1 of HCCRA, supra. See Kuitsarak Corp. v. Swope, 870 P.2d 387, 392 (Alaska 1994); Wacaser v. Insurance Com'r, 321 Ark. 143, 900 S.W.2d 191, 193 (1995); McClellan v. Meyer, 900 P.2d 24, 29 (Colo. 1995); Dolgner v. Alander, 237 Conn. 272, 676 A.2d 865, 869 (1996); Wood v. Superintendent of Insurance, 638 A.2d 67, 70 (Me. 1994); Montalvo v. Miss. State Bd. of Med. Lic., 671 So. 2d 53, 55-56 (Miss.1996); Dubray v. Coeur Rochester, Inc., 112 Nev. 332, 913 P.2d 1289, 1290 (1996) ("`[W]hen a decision of an administrative body is challenged, the function of [the Supreme Court of Nevada] is identical to that of the district court. It is to review the evidence presented to the administrative body and ascertain whether the body acted arbitrarily or capriciously, thus abusing its discretion.'" (citation omitted)). Cf. Cox v. PSC, 188 W.Va. 736, 426 S.E.2d 528 (1992).[18]
*836 III.
A.
The DEP argues that in order to successfully rebut the (b)(6) presumption, Kingwood was required to prove that it did not have the authority directly or indirectly to determine how T & T conducted its mining operations. 38 C.S.R. 2-2.84(b)(6) (1996). The issue before this Court is whether, contrary to the language of 38 C.S.R. 2-2.84(b)(6) (1996), the Board improperly imposed on the DEP the unreasonable burden of proving that Kingwood actually controlled T & T's mining operation.
The relevant language of 38 C.S.R. 2-2.84(b)(6) (1996) states:
2.84. Owned or Controlled and Owns or Controlsmeans any one or a combination of the relationships specified in paragraphs (a) and (b) of this definition:
....
(b) The following relationships are presumed to constitute ownership or control unless a person can demonstrate that the person subject to the presumption does not in fact have the authority directly or indirectly to determine the manner in which the relevant surface mining operation is conducted:
....
(6) Owning or controlling coal to be mined by another person under a lease, sublease or other contract and having the right to receive such coal after mining or having authority to determine the manner in which that person or another person conducts a surface mining operation.
In order to establish a presumption of ownership and control under 38 C.S.R. 2-2.84(b)(6) (1996), the DEP must show that a person owns or controls coal to be mined by another person under a lease, sublease or other contract and that such person either has the right to receive the coal after mining or has the authority to determine the manner in which the surface mining operation is conducted. Id. See generally Pittston Co. v. Lujan, 798 F. Supp. 344 (W.D.Va.1992), aff'd, 66 F.3d 714 (4th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1417, 134 L. Ed. 2d 542 (1996). The burden of persuasion then shifts "to the persons more likely to have access to the information necessary to establish whether control exist." 53 Fed.Reg. 38871 (1988). See n. 7, supra; Spur, 12 OHA at 199. Thus, to rebut the (b)(6) presumption of ownership and control, the person subject to the presumption must demonstrate that it "does not in fact have the authority directly or indirectly to determine the manner in which the relevant surface mining operation is conducted[.]" 38 C.S.R. 2-2.84(b)(6) (1996). See 53 Fed.Reg. 38871 (1988) (The DEP does not "have easy access to the information which is needed to make an accurate determination of control ... whereas persons subject to the presumption[] would have better access to the information needed to show control does not exist.") As previously indicated, the measure of proof required to rebut a(b)(6) presumption is a preponderance of the evidence. 53 Fed.Reg. 38879 (1988). See n. 11, supra.
To determine whether a person subject to a(b)(6) presumption has successfully rebutted it,
[OSM] will look to the actual relationship between the parties. Important factors to be considered in determining the actual relationship of the parties include whether the mining company is free to sell the coal it extracts to whenever [sic] it wishes and the degree of involvement of the coal owner or lessor in the mining operation. Information which can be used to rebut a presumption of control can include, but is not limited to, data on who provides engineering services, who determines the placement and method of driving entries or making cuts, and to whom the coal may be sold and at what price. As with all of the presumptions contained in the rule, submission of adequate information that is available to the parties involved will suffice to rebut the presumptions.
53 Fed.Reg. 38877 (1988).
Clearly, whether the person subject to the (b)(6) presumption successfully rebuts it by demonstrating that it in fact did not have authority directly or indirectly to determine the manner in which a mining operation is *837 conducted is a factual determination to be resolved on a case-by-case basis.
Thus, under 38 C.S.R. 2-2.84(b)(6) (1996), promulgated pursuant to the West Virginia Surface Coal Mining and Reclamation Act, W. Va.Code, 22-3-1 et seq., owning or controlling coal to be mined by another person under a lease, sublease or other contract and having the right to receive such coal after mining or having authority to determine the manner in which that person or another person conducts a surface mining operation is presumed to constitute ownership or control. In order to rebut this presumption of ownership and control, the person subject to the presumption must demonstrate, by a preponderance of the evidence, that it does not in fact have the authority directly or indirectly to determine the manner in which the relevant surface mining operation is conducted. Whether a person has successfully rebutted a(b)(6) presumption is a factual determination to be resolved on a case-by-case basis.
In this case, the leases and coal sales agreements established the (b)(6) presumption because Kingwood owned or controlled the coal to be mined and had the right to receive it at its preparation plant located in Albright, West Virginia. It is the DEP's contention that the Board improperly placed on it the burden of also proving that Kingwood actually controlled T & T's mining operations. Relevant to the issue of what burden the Board imposed upon the parties are its following conclusions of law:
2. [38 C.S.R. 2-2.84(b)(6) (1996)] creates the presumption of control if DEP can prove that Kingwood owned or controlled the coal mined by T & T and had the right to receive such coal. Alternatively, even without the presumption, DEP could prove that Kingwood had the authority to determine the manner in which T & T conducted its surface mining operation.
3. The DEP asserts in the FAD at page 18: `The implied authority possessed by Kingwood over the operations conducted under the relevant permits cannot be lightly discounted.' However, OSM describes the nature of the authority in question as `actual,' as opposed to `express' or `implied' authority. 53 FR 38868, at 38870 and 38877, October 3, 1988.
4. In determining whether Kingwood had control over T & T, the test to be applied is the actual authority[19] of Kingwood over the operations of T & T. 53 Federal Register 38868 at 38870 and 38877, October 3, 1988.
(emphasis and footnote added).
As Kingwood points out, and we believe correctly so, the Board in fact did not conclude that the DEP was required to prove that Kingwood actually controlled T & T's mining operations. Rather, in conclusion of law no. 4, the Board clearly stated that "[i]n determining whether Kingwood had control over T & T, the test to be applied is the actual authority of Kingwood over the operations of T & T. 53 Federal Register 38868 at 38870 and 38877, October 3, 1988." (emphasis added). Furthermore, in conclusion of law no. 12, the Board stated, inter alia, that "neither KMC or Kingwood has or had actual authority to determine the manner in which T & T conducts or conducted its mining operations." (emphasis added). We therefore find no merit in the DEP's contention that the Board required it to prove that Kingwood actually controlled T & T's mining operations.
B.
During the July 17, 1995 de novo hearing before the Board, the DEP presented witnesses *838 and numerous documents to support the (b)(6) presumption that Kingwood owned or controlled T & T's mining operations. In an effort to demonstrate that it did not in fact have the actual authority directly or indirectly to determine the manner in which T & T conducted its mining operations so as to rebut the (b)(6) presumption, 38 C.S.R. 2-2.84(b)(6) (1996), or, in the alternative, to show that no (b)(6) presumption exists in this case, Kingwood also presented various witnesses and documents before the Board.
At the outset, we note that both the DEP and Kingwood agree that neither the leases, coal sales agreements nor any other legal document conferred direct authority on Kingwood to determine the manner in which T & T conducted its mining operations. The primary dispute among the parties is whether the evidence demonstrates that Kingwood had the authority indirectly to determine the manner in which T & T's mining operations were conducted.
As indicated above, this Court's review of the Board's August 28, 1995 order is limited, as we apply the standard of review enunciated in W. Va.Code, 29A-5-4(g) [1964] of the APA. See syl. pt. 1, HCCRA, supra; id., 196 W.Va. at 334-35, 472 S.E.2d at 419-20 ("We review the circuit court's order de novo, applying the same `clearly wrong' and `arbitrary and capricious' standards as did the circuit court.") Our examination of the relevant evidence shall be conducted accordingly.
To support the (b)(6) presumption that Kingwood owned or controlled the manner in which T & T conducted its mining operations, the DEP presented a number of documents. For example, in a January 30, 1984 KMC internal memorandum, Dick Wilkinson, KMC's quality control manager at that time, wrote, in relevant part:
In observing the drilling at T & T on Beech Run, I believe in all the holes we hit that there were not any area that could not be mined. In all cases there were at least 4-6' of black shale over the seam and with the amount of water in the holes all the coal was washed away which indicates a fairly good grade of coal. I personally believe we have proven that T & T # 3 can get this coal. However, I would like to see T & T # 2 work in this area until T & T # 3 starts in their direction.
According to the DEP, this memorandum is evidence that it was KMC that determined where T & T was to conduct its mining.
The DEP further points to a July 28, 1987 letter from James F. Daugherty, then President of KMC, to Junior Lose, Superintendent at Mine No. 2, in which Daugherty made an "official request" that T & T "stop mining in the vicinity of Station Number 2224 and move back to the vicinity of Station Number 2208. We are making this request because the coal quality is very bad ... which is affecting our marketing capabilities." The DEP argues that this letter establishes that KMC actually exercised its authority over T & T by requiring it to stop mining in certain areas. Daugherty testified on behalf of Kingwood, however, that T & T refused to heed KMC's request to cease mining and, as a result, KMC was forced to purchase better quality coal to offset the poor quality coal T & T continued to mine.
The DEP presented another KMC internal memorandum, dated January 9, 1986, which discussed a drilling project on Mine No. 3. This memorandum, written by Wilkinson, stated in relevant part:
The drill holes shown in blue are the holes in our current drilling project. They show the coal to be very faulty and I have sketched the approximate fault line on the map in red. The red holes indicate the previous drilling project. The green holes indicate the proposed drilling holes if you elect to drill again, which at that time we would need another meeting with Mr. Thomas to get his approval.
The headings outlined in red indicate where we have decided to put the next panel. If we can get out on this panel we will turn to the left and try to go as far as we can. I am convinced that the coal in the point is faulty from what we have drilled and not mineable. I don't think there is a need to drill the holes marked in green at this time. If the miner cannot go in this next panel then we may need to check the other panels out later.
*839 Notwithstanding the express statement that KMC would require the approval of T & T's owner in the event the parties wish to recommence drilling, the DEP maintains that the above memorandum is evidence that KMC exercised its actual authority over T & T's mining operation indicating how the mining should be conducted.
The DEP additionally presented to the Board an October 13, 1983 letter from Henry F. Ghezzi, Vice President and General Manager of KMC, to T & T, in which KMC granted Mine No. 2 "permission to dump any and all pond drippings, rejects and slurry at the [KMC] reject site [.]" According to the DEP, the fact that T & T paid no fee for its use of KMC's reject site is evidence that the parties' relationship was not that of lessor-lessee but rather, that of KMC controlling T & T's mining operations.
Kingwood argues, however, that should it, at any time, withdraw the permission it granted to T & T to dump its slurry and rejects on KMC's reject site, T & T would be forced to locate a site elsewhere. Moreover, Kingwood presented testimony that it also permits its lessors to dump their drippings and rejects on the site. Kingwood points out that, under the lease, T & T, upon request, was authorized to use KMC's facilities or land pertinent to its operations thereunder. The lease provided that T & T pay a 5% royalty to compensate KMC, and later Kingwood, for the rights conveyed to T & T under the lease, including the right to use KMC's facilities or land. However, according to the DEP, the reject site was apparently located on land which was adjacent to the mines but which was not leased to T & T.
As further evidence of Kingwood's control of T & T, the DEP presented a March 5, 1975 letter from Monongahela Power Company to KMC indicating that KMC had "offered to guarantee power company's revenue requirement contracts with" T & T. In response to this evidence, Kingwood pointed out at the hearing before the Board that not only was the 1975 letter dated four years after mining had already begun, but also that there was no evidence that Kingwood did in fact guarantee the revenue requirements contract.
Additional evidence presented by the DEP included the fact that Kingwood and T & T's relationship continued for eighteen months after the 1971 lease expired. Though the parties eventually executed an addendum to the expired lease in 1981, extending it to 1991, "or upon exhaustion of the coal covered by said lease within said ten (10) year term," Gene Coccari, the DEP's manager of the ownership and control unit, Office of Mining and Reclamation, noted that the relationship continued without a written extension of the lease until mining was completed in 1993.
In an effort to demonstrate that it did not in fact have the actual authority directly or indirectly to determine the manner in which T & T conducted its mining operations, so as to rebut the (b)(6) presumption, 38 C.S.R. 2-2.84(b)(6) (1996), or in the alternative, to show that no (b)(6) presumption exists in this case, Kingwood presented, including the evidence discussed above, six fact witnesses and two expert witnesses, as well as various documents.
Michael Timothy Bostonia, controller and vice president of finance administration for the T & T group of companies[20] testified before the Board that Kingwood and T & T enjoyed a business relationship, the terms of which were defined by the leases and coal sales agreements in place at the time. He further testified that T & T's mines were profitable, that T & T was financially independent of Kingwood and that no one from either KMC or Kingwood had ever reviewed T & T's financial statements. Bostonia stated that upon the sale of KMC's assets to Kingwood in 1990, Kingwood proposed that T & T become a contract miner but that T & T refused to agree to a change in the parties' relationship.
John Clark, employed as Kingwood's chief engineer, testified that although he had signed maps for T & T while he was employed at Kingwood, he did so not as an *840 employee of or on behalf of Kingwood, but as a "moonlighter," or consultant.[21] According to Clark, T & T paid him directly for his work. He further indicated that he had never been in Mine Nos. 2 and 3, that he never prepared any maps for T & T or any permit modifications or applications for them.
Similarly, Paul Chroussis, an engineer and surveyor who was not employed by Kingwood and who also occasionally worked for T & T as a consultant, testified that his engineering firm had arranged for Clark to work for T & T as a "moonlighter."[22] Chroussis testified that Clark never prepared the maps that he certified for T & T.
James F. Daugherty, Kingwood's vice president,[23] testified that neither KMC nor Kingwood ever participated in T & T's permitting activities, never prepared any maps for T & T, never paid its bills, taxes, T & T's state or federal reclamation fees or T & T's employees.
Dick Wilkinson, quality control manager for KMC and later Kingwood, testified that the lease executed by the parties provided for a right of arbitration which could be invoked by either Kingwood or T & T in the event of a dispute. The arbitration provision provided, in part, that "[a]ny controversy (other than [T & T's] failure to pay royalty herein provided for) between [KMC and later Kingwood] and [T & T] arising under this Lease shall be submitted to and determined by arbitration in the manner hereinafter set forth. The questions in dispute to be so determined shall be submitted by two arbitrators, one to be appointed by [KMC/Kingwood] and one by [T & T], and the two so chosen shall appoint a third arbitrator[.]" According to Kingwood, such a provision protecting T & T's interests would not have been necessary if Kingwood in fact controlled T & T. Coteau Properties Co. v. Department of Interior, 53 F.3d 1466, 1477 (8th Cir.1995). Moreover, if Kingwood controlled T & T, their interests would not diverge. Id.
Wilkinson also explained why KMC and T & T had shared the costs of the drilling programs instituted to assist T & T in determining where to mine:
Well, at this time the coal market was down quite a bit and the money was not as readily available and T & T felt that since [KMC] owned the reserves, we ought to do the drilling and [KMC] felt that since it was T & T's mine and dictated where they were going to mine, that they ought to do the drilling. So we compromised and split the cost of the drilling so that we could go ahead and do the drilling.
Wilkinson further explained that the costs of a second drilling program were shared because the Thomases, the owners of T & T, and two other parties, in addition to Kingwood, each owned a portion of the coal to be mined.
Kingwood also presented two expert witnesses during the hearing before the Board. Andrew Fox testified, over the DEP's objection, that from his review of the leases, the coal sales agreements, the DEP-FAD and the asset purchase agreement, the relationship between T & T and KMC/Kingwood was that of a typical lessor-lessee. He testified that the documents he reviewed conferred many rights on T & T not typically enjoyed by a contract miner. Fox further testified with regard to the fact that T & T performed its own lab analysis of the coal. He found this to be
significant in that it shows that they had a vested interest in determining what the quality was, that they wanted to check to make sure that they were being paid the right amount of money for the coal that they were producing. It shows that they and Kingwood are not the same. If Kingwood and T & T were the same companies *841 where one had control over the other, there would be no need to check the quality because they would be the same company.[24]
(footnote added).
As previously stated, this Court reviews the Board's decision under the standards set forth in W. Va.Code, 29A-5-4(g) [1964]. Our review therefore is limited to evaluating the record of the proceedings before it to determine whether there was evidence on the record to support its decision that Kingwood proved, by a preponderance of the evidence,[25] neither it nor KMC has or had actual authority to determine the manner in which T & T conducts or conducted its mining operations within the meaning of 38 C.S.R. 2-2.84(b)(6) (1996). See Frank's Shoe Store v. Human Rights Com'n, 179 W.Va. 53, 56, 365 S.E.2d 251, 254 (1986) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574-75, 105 S. Ct. 1504, 1511-12, 84 L. Ed. 2d 518, 528 (1985)). We conduct our evaluation pursuant to the Board's findings of fact, "regardless of whether [this] [C]ourt would have reached a different conclusion on the same set of facts." Id.
Accordingly, we find that the Board, in concluding that Kingwood successfully demonstrated that it did not in fact have the authority to determine the manner in which T & T's mining operations were conducted, thereby rebutting the (b)(6) presumption, addressed the relevant connections between the two companies. Coteau, 53 F.3d at 1477. Though Kingwood and T & T were connected through leases and coal sales agreements, the Board found that they were executed at arms length, id; conclusion of law no. 7, supra, and further, that the leases, which contained arbitration and default remedies, and the coal sales agreements, were designed to protect the interests of both parties. Coteau, 53 F.3d at 1477; findings of fact 1 and 2, supra. In that determination of ownership and control is a factual determination and is often unclear, Coteau, 53 F.3d at 1480, we cannot conclude, in light of the evidence presented before the Board and particularly, that which is recounted above, that the Board's decision was either "[c]learly wrong in view of the reliable, probative and substantial evidence on the whole record[,]" or "[a]rbitrary or capricious or characterized by abuse of discretion[.]" W. Va.Code, 29A-5-4(g)(5) and (6) [1964]. See syl. pt. 1, HCCRA, supra.
IV.
The final issue with regard to the (b)(6) presumption concerns the DEP's contention that the Board committed error in concluding that "[a] preponderance of the evidence establishes that Kingwood's activities under the lease were necessary and appropriate to protect *842 the coal reserves and attempt to ensure maximum recovery of the reserve, and are not evidence of control[,]" and further, that "[a] preponderance of the evidence establishes that Kingwood's activities under the coal sales agreements were proper to ensure that the coal could be processed to meet the quality requirements needed to fulfill its supply orders and are not evidence of control." See conclusions of law no. 10 and 11, supra. In determining whether Kingwood successfully rebutted the (b)(6) presumption of ownership and control, the DEP argues that, under the language of 38 C.S.R. 2-2.84(b)(6) (1996), the Board should not have considered whether any of Kingwood's activities under the lease and coal sales agreement were "necessary, appropriate and proper." See Id.
The DEP's contention that the Board should not have considered whether any of Kingwood's activities were necessary and appropriate under the lease and coal sales agreement is derived from the case of James Spur, Inc. v. OSMRE, 12 OHA 133 (1996) and a United States Department of the Interior internal memorandum written thereafter, criticizing the Spur decision. In Spur, the Director of the Office of Hearings and Appeals ("OHA") of the Department of the Interior affirmed a decision of the Interior Board of Land Appeals ("IBLA") which dissolved an ownership and control link between an applicant and an operator with unabated violations of the SMCRA and outstanding unpaid civil penalties. Though a(b)(6) presumption of ownership and control was established in that case, the issue, as in this case, was whether Spur, the entity subject to the presumption, rebutted the presumption by demonstrating, by a preponderance of the evidence, that it did not have the authority directly or indirectly to determine the manner in which the surface mining operations were conducted. Id., 12 OHA at 182.
The OHA in Spur affirmed the IBLA decision, thus concluding that Spur had successfully rebutted the (b)(6) presumption. The OHA rejected the OSM's argument that the IBLA had erroneously permitted Spur "to rebut the presumption of control by applying an improper `legitimate purposes' test and by allowing evidence of the purported intent of the parties to overcome the clear language of the contracts." Id. The IBLA had stated that it would "`look to whether applicants have offered credible explanations demonstrating legitimate purposes (apart from an interest or intention to influence the conduct of operation) for elements of their relationship with the operator.'" Id. (quoting 133 IBLA at 187).
In a memorandum from John D. Leahy, Solicitor of the United States Department of the Interior, to Secretary of the Interior Bruce Babbitt, written soon after the Spur case was decided, the Solicitor criticized the Spur decision, considering the above-quoted reasoning to be flawed. The Solicitor
concluded that a legitimate reason to exercise control is not an affirmative defense available to the permit applicant. The only necessary inquiry is whether the permit applicant had, in the language of the regulations implementing the statute, `authority directly or indirectly to determine the manner in which the relevant surface coal mining operation is conducted.'
Memorandum, at p. 2 (quoting 30 C.F.R. § 773.5(b)(6)). Though the Solicitor believed that the outcome of the Spur case should not be disturbed, he indicated that "its reasoning should not be followed in future applications except to the extent consistent with the analysis provided [in the memorandum]." Id. at p. 1. The Spur decision was thus modified in part, to the extent that "[a] person's `legitimate purposes' in having the ability to control a surface coal mining and reclamation operation do not rebut a presumption of control." Id. at p. 25.
Consistent with the Solicitor's Memorandum, discussed above, the DEP maintains that Kingwood's legitimate purposes in having the ability to control T & T's mining operations do not rebut the presumption of control established under 38 C.S.R. 2-2.84(b)(6) (1996). The DEP argues in this case that the Board committed error in concluding that a preponderance of the evidence establishes that Kingwood's activities under the lease and coal sales agreement are not evidence of control but were necessary and appropriate to protect the coal reserves, to *843 attempt to ensure maximum recovery of the reserve and to ensure that the coal could be processed to meet the quality requirements needed to fulfill its supply orders.
We need not decide whether the Board committed error in this regard. As previously set forth in this opinion, the Board was presented with an array of other evidence which it found supported its conclusion that Kingwood successfully rebutted the (b)(6) presumption in this case. See, e.g., finding of fact no. 6 ("KMC and Kingwood did not have the right under the lease or the coal sales agreements to approve the mining plans or mine projections for the T & T mines."); finding of fact no. 7 ("T & T prepared all mining plans, permit applications, mine projections, health and safety plans, maps, and all other necessary documentation for the T & T mines. All permits for the T & T mines were in T & T's name. T & T did its own engineering work, or had it done by outside consultants. T & T paid all of its own bills, and Kingwood never loaned any money to T & T. Kingwood did not participate in regulatory inspections of the T & T mines, and Kingwood did not receive copies of inspection reports, notices of violation, cessation orders, or penalty assessments."); finding of fact no. 9 (though "Kingwood had the right to suggest matters dealing with protection of the reserves and quality of the coal" under the lease and coal sales agreement, and on occasion, did make suggestions in that regard, "Kingwood never demanded, nor did it have the right to demand, that T & T take any particular action with regard to the T & T mines."); finding of fact no. 11 (the price paid for the coal "was influenced by the ultimate market price received for the coal by either KMC or Kingwood."). See also finding of fact no. 12, supra; conclusions of law no. 7 and 8, supra.
In light of the evidence previously discussed in this opinion, and the Board's findings and conclusions, we cannot conclude that the Board's decision was either "[c]learly wrong in view of the reliable, probative and substantial evidence on the whole record[,]" or "[a]rbitrary or capricious or characterized by abuse of discretion[.]" W. Va.Code, 29A-5-4(g)(5) and (6) [1964]. See syl. pt. 1, HCCRA, supra.
V.
For the reasons discussed herein, the May 24, 1996 order of the Circuit Court of Kanawha County is hereby affirmed.[26]
Affirmed.
STARCHER, J., dissents and files a dissenting opinion.
STARCHER, Justice, dissenting:
I respectfully dissent. I would reverse the ruling below, and remand to the Surface Mine Board for consideration of important factual and legal issues regarding "control" that were not adequately addressed below. I also would require the Surface Mine Board to show the Department of Environmental Protection the deference the statute requires.
I.
Control
The pleadings and record indicate that the appellee Kingwood Coal is a subsidiary of a large national energy company, the Coastal Corporation. Kingwood Coal bought Kingwood Mining, a company which chose to acquire coal for the purpose of mining it, and selected a company (T & T) to carry out coal extraction. Kingwood Mining received, processed and sold almost all most of the coal as it was mined. Like the majority opinion, I would make the assumption that Kingwood Coal bought Kingwood Mining's liabilities and responsibilities, as well as its assets.
Now Kingwood Coal, a subsidiary of a large national corporation, disclaims any responsibility for the creation of what the pleadings indicate may be one of the worst long-term acid mine drainage sites created in this state since the passage of the Surface Mine Reclamation and Control Act twenty years ago.
Moreover, the pleadings indicate that because T & T Coal is bankrupt, the State of *844 West Virginia is currently paying in the neighborhood of $60,000 per month to treat the acid mine drainage that is flowing from the mine void left by the mining of the coal.
I am concerned that our ruling may have the effect of shielding Kingwood Coal from long-term liability for the financial and environmental consequences of its chosen economic activity. This sort of immunity distorts the market, and unfairly penalizes coal operators and companies who do accept responsibility for the long-term effects of their economic activity.
I believe that the first issue in a control case should be the relevance of the control determination to the environmental law violation at issue. I think a that a fair and neutral test can and should be set out that would guide the control inquiry, and protect innocent coal owners but not immunize coal companies that are active partners in creating the problems that lead to the environmental law violations.
I believe that the Surface Mine Board should be required to address two key "control" issues: (1) what acts and decisions caused the creation of a long-term underground toxic spoil area that is polluting millions of gallons of groundwater discharge daily; and (2) who made those decisions?
The undisputed facts in the record strongly indicate that Kingwood actually made and thus "controlled" the only significant decision that resulted in the creation of this acid mine drainage sitethe decision to extract the coal in the first instance. If the Board agreed with this impression, then Kingwood's responsibility for that decision should leave Kingwood permit-blocked, unless they abate the pollution.
The principle of responsibility by a mineral owner coal company was established in our law in O'Dell v. McKenzie, 150 W.Va. 346, 145 S.E.2d 388 (1965), where this Court held that a coal owner/lessor was jointly liable for water pollution damages where the lessor was a commercial coal company leasing coal.
Accordingly, I would reverse and remand to the Surface Mine Board.
II.
Deference
I also feel that we should not announce a new standard removing all deference to the agency (DEP) decision by the Surface Mine Boardparticularly when, as the majority opinion clearly notes, our statutes contain clear language setting forth a deferential standard of review.
W.Va.Code, 22B-1-7 [1994] states that:
(2) The surface mine board shall ... affirm[] ... the decision appealed from if the board finds that the decision was lawful and reasonable ... if the board finds that the decision was not supported by substantial evidence in the record considered as a whole, it shall make and enter a written order reversing or modifying the decision of the director. (emphasis added).
The classic "substantial evidence test," which is taught in every administrative law class, could not be set out more clearly. I am concerned that the majority opinion's failure to give due weight to this important principle of modern jurisprudence will undermine its significance in other contexts, beyond the area of appeals to the Surface Mine Board.[1]
How should we interpret the "hear de novo" language which the majority opinion accurately points tolanguage which is also contained in the same statutory section as the above-quoted "substantial evidence" standard?
*845 In my opinion, we are required to derive a standard that gives meaning to all of the legislative language. We should rule that, given the deferential "substantial evidence" standard of review language in our law, "hear de novo" means a procedural standard for the hearing, governing the receipt of evidence. That is, the record is developed in a hearing de novo (but the entire agency record below becomes part of the hearing record, along with all of the new evidence, testimony, etc.). This de novo procedural standard is wholly compatible with a deferential substantive standard for reviewing the decision below.
The majority opinion cites a number of cases from other jurisdictions for the proposition that to "hear de novo" means in all cases to give no deference in any regard to the decision below. But upon examination, none of those cases involved a situation where additional statutory language sets out a deferential standard of review.
When a statute provides for a deferential standard of review, a "de novo" hearing still means that deference is given to the decision below. A "de novo" hearing with deferential review is not incompatible. See, Enservco, Inc. v. Indiana Securities Div., 623 N.E.2d 416, 420 (Ind.1993).
Practically speaking, under the new "no deference" standard set forth in the majority opinion, the institutional expertise and policies of the state's crucial environmental enforcement agency (for all of its limitations) is to be entitled to no weight and to mean nothingupon review by a Board of part-time political appointees. It's not at all clear to me that this is what the Legislature intended. Accordingly, I dissent to this portion of the majority opinion as well.
III.
When Will We Ever Learn?
Finally, I am reminded of a case in many ways similar to the instant case, whose facts arose in my home county, although the case itself came before the Circuit Court of Kanawha County. In Four-H Road Comm. Assoc. v. Chief, Div. of Water Resources, 177 W.Va. 643, 355 S.E.2d 624 (1987), this Court upheld a favorable mining permit decision by the Surface Mine Board, when a group of citizens, with expert support, had warned that the Omega mine would become a toxic acid mine drainage site for hundreds of years after mining. About five years after this Court's decision, what the citizens predicted turned out to be correct. At the Omega mine, the State of West Virginia is now treating the toxic drainage from the mine, at a cost of hundreds of thousands of dollars a year. We are now adding the T & T mine to the burden of State taxpayers and of coal companies who pay into the reclamation fund.
As I stated earlier in this dissent, I read our law as designed to be about requiring accountability for coal mining enterprises. To permit escape from accountability unfairly penalizes responsible businesseshere favoring large irresponsible out-of-state corporate interests over responsible State businesses. As a further result, the public fisc of our State is spent in toxic abatementor alternatively, our communities, streams and mountains are fouled. I understand the majority opinion's approach to the issues in this case, but I disagree with it. Accordingly, I respectfully dissent.
NOTES
[1] KMC originally entered into the lease agreement with T & T Coals, Inc. The lease was subsequently assigned to T & T Fuels, Inc. T & T Coals, Inc. and T & T Fuels, Inc. are related companies ultimately owned by Paul and Lowell Thomas and are collectively referred to here as "T & T."
[2] Though the mining activity at Mine Nos. 2 and 3 was conducted underground, the SCMRA regulates the surface impacts incident thereto, "including the drainage and discharge therefrom." W. Va.Code, 22-3-3(u)(1) [1994].
[3] Treatment has heretofore been paid for by the special reclamation fund, which funds are expended by the director of the DEP for "the reclamation and rehabilitation of lands which were subjected to permitted surface-mining operations and abandoned ... where the amount of the bond posted and forfeited on such land is less than the actual cost of reclamation." W. Va. Code, 22-3-11(g) [1994], in part.
[4] In October 1995, T & T filed Chapter 7 (liquidation) bankruptcy.
[5] The United States Department of Interior, through the Office of Surface Mining and Reclamation and Enforcement (hereinafter "OSM"), administers the federal Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq., and promulgates regulations including 38 C.S.R. 2-2.84(b)(6) (1996)'s federal counterpart, 30 C.F.R. § 773.5(b)(6) (1996). In that the former is identical to and derived from the latter, we give due consideration to the latter's regulatory history as well as to relevant federal case law in resolving the (b)(6) issues before us. See State ex rel. McMahon v. Hamilton, 198 W.Va. 575, 583 n. 14, 482 S.E.2d 192, 200 n. 14 (1996).
[6] The (b)(6) presumption
covers contract mining operations in which the person controlling the mining operation may be neither the permittee nor the operator, but instead is the owner or lessor of the coal.... In paragraph (b)(6) of the final definition of `owned or controlled,' [OSM] has established a rebuttable presumption for `captive' contractors of coal owners or lessors.... In situations covered by paragraph (b)(6), applicants would have to prove that a contract mining relationship with a coal lessor does not establish control.... [OSM] has adopted the presumption because, in contract mining operations, the owner or lessor of the coal more often than not is controlling the mining operation even though the owner or lessor of the coal purportedly employs `independent contractors.'
53 Fed.Reg. 38876-77 (1988). See generally United States v. Rapoca Energy Co., 613 F. Supp. 1161 (W.D.Va.1985).
[7] "A primary purpose of establishing the presumption[] is to shift the burden of persuasion from the regulatory authority to the persons more likely to have access to the information necessary to establish whether control exists." 53 Fed.Reg. 38871 (1988).
[8] The DEP enforces (b)(6), supra, as well as W. Va.Code, 22-3-18(c) [1994], which provides, inter alia:
Where information available to the [DEP] indicates that any surface-mining operation owned or controlled by the applicant is currently in violation of this article or other environmental laws or rules, the permit shall not be issued until the applicant submits proof that such violation has been corrected or is in the process of being corrected to the satisfaction of the director or the department or agency which has jurisdiction over the violation.... Provided, That if the director finds that the applicant is or has been affiliated with, or managed or controlled by, or is or has been under the common control of, other than as an employee, a person who has had a surface-mining permit revoked or other security forfeited for failure to reclaim lands as required by the laws of this state, he or she shall not issue a permit to the applicant: Provided, however, That subject to the discretion of the director and based upon a petition for reinstatement, permits may be issued to any applicant if: (1) After revocation or forfeiture, the operator whose permit has been revoked or bond forfeited has paid into the special reclamation fund any additional sum of money determined by the director to be adequate to reclaim the disturbed area; (2) the violations which resulted in the revocation or forfeiture have not caused irreparable damage to the environment; and (3) the director is satisfied that the petitioner will comply with this article.
The federal OSM entered Kingwood into the Applicant/Violator System (AVS) apparently when T & T listed Kingwood on a coal reclamation fee report as mineral owner, purchaser and person to whom the coal was delivered. The AVS is "a computer system that identifies whether an applicant for a permit is linked by ownership or control to any person having outstanding violations of federal or state surface mining laws." Pittston Co. v. Lujan, 798 F. Supp. 344, 345 (W.D.Va.1992) aff'd, 66 F.3d 714 (4th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1417, 134 L. Ed. 2d 542 (1996). See 30 C.F.R. § 773.5 (1996). "OSM enters ownership or control links into the AVS, and this information bank is then used to evaluate permit applications or review whether current permits were improvidently issued. If linked on the AVS, an entity is said to be permit-blocked." Arch Mineral Corp. v. Babbitt, 104 F.3d 660, 664 (4th Cir.1997). See 53 Fed.Reg. 38868 (1988) ("This rule is intended to secure greater compliance with the [SCMRA] by preventing mining permits from being issued to persons who, either by themselves or through related persons, own or control violators of the [SCMRA].... In the past, some operators evaded the requirements of the [SCMRA] and obtained a new permit while past violations remained unabated or money remained unpaid. In some instances, they formed new corporations, partnerships or other business entities, and through them applied for permits for new operations without correcting the violations or paying the fees and penalties resulting from old operations. If allowed to persist, these practices could seriously weaken enforcement of the [SCMRA] and impede mine site reclamation. This could result in an unfair competitive advantage to operators who fail to comply with the requirements of the law and thereby lower their coal production costs.")
When the amd discharge occurred at Mine No. 2 and T & T was found to be in violation of the SCMRA, the DEP conducted an investigation, including tapping into the AVS, to determine whether all persons owning or controlling T & T had been identified. During this investigation, Kingwood's name appeared and the DEP found that it owned or controlled T & T, thereby establishing the (b)(6) presumption.
[9] For example, the DEP-FAD relied on a December 14, 1988 letter in which Jim Daugherty of KMC indicated to Chuck Watkins, Secretary of KMC and a lawyer involved in the impending sale of KMC's assets to Kingwood, that Paul Thomas of T & T was apprehensive "due to the `possibility of [KMC] changing ownership'.... Mr. Thomas `feels the present lease is OK if he is working with the same old KMC....'" In another letter to an attorney named Frank Gaffney, dated December 16, 1988, Mr. Watkins acknowledged "`[t]hat Mr. Thomas is concerned because of an impending sale of a majority of its [KMC's] stock. I can advise you that a condition of this sale is that there be no change in the current management of [KMC] as a result of the sale.'" (emphasis and brackets provided).
[10] The DEP-FAD acknowledged Kingwood's position that the leases and contracts it entered into with T & T contained provisions indicating that Kingwood did not have the authority to control T & T. It further recognized Kingwood's argument that the documents submitted lacked provisions which commonly reflect the authority to control. Kingwood's arguments notwithstanding, the DEP-FAD indicated that "the fact remains that the documents do contain provisions that are indicative of control. These include provisions prohibiting T & T from assigning the lease without the approval of Kingwood and requiring T & T to comply with all applicable laws." The DEP-FAD further made clear that, upon review of all of the evidence, "there is much more to the relationship than what is set forth in the documents."
[11] "The measure of proof needed to rebut a presumption under this rule is a preponderance of the evidence[.]" 53 Fed.Reg. 38879 (1988).
[12] Kingwood also filed with the Board a motion to stay the DEP-FAD pending the outcome of the appeal. By order entered June 24, 1995, the Board granted Kingwood's motion.
[13] See 30 C.F.R. § 773.5 (1996) (Ownership or control link "means any relationship included in the definition of `owned or controlled' or `owns or controls'" in 30 C.F.R. § 773.5 (1996), which is the federal counterpart to 38 C.S.R. 2-2.84 (1996)). See also James Spur, Inc. v. OSMRE, 12 OHA 133, 141-44 (1996).
[14] A person may also be presumed to own or control an entity under five other presumptions set forth in 38 C.S.R. 2-2.84(b) (1996):
(1) Being an officer or director of an entity;
(2) Being the operator of a surface mining operation;
(3) Having the ability to commit the financial or real property assets or working resources of an entity;
(4) Being a general partner in a partnership;
(5) Based on the instruments of ownership or the voting securities of a corporate entity owning of record ten (10) through fifty (50) percent of the entity [.]
These presumptions are not at issue in this case.
[15] We note that both the DEP and Kingwood acknowledge that the federal ownership and control rule, which includes 38 C.S.R. 2-2.84(b)(6) (1996)'s federal counterpart, 30 C.F.R. 773.5(b)(6) (1995), was found to be unlawful in National Mining Ass'n. v. U.S. Dept. of Interior, 105 F.3d 691 (D.C.Cir.1997). Both parties insist, however, that the validity of our state's (b)(6) presumption is not challenged in this case, was not raised below, and is not presently before this Court. We therefore will not address the issue in this appeal. See syl. pt. 3, Voelker v. Frederick Business Properties, 195 W.Va. 246, 465 S.E.2d 246 (1995) ("`In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.'" (citations omitted)).
[16] A party may intervene at the appeal stage "[w]ith the consent of the board and upon such terms and conditions as the board may prescribe[.]" Id.
[17] W. Va.Code, 29A-5-4(g) [1964] provides:
(g) The court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
See W. Va.Code, 22B-1-9 [1994], "[g]eneral provisions for judicial review" (providing that W. Va.Code, 29A-5-4 [1964] governs judicial review of order entered by Board after appeal hearing.).
[18] In that this Court will review the circuit court's order de novo applying the same standard of review to the Board's decision as did the circuit court, see W. Va.Code, 29A-5-4(g) [1964], we need not address the DEP's contention that the circuit court committed reversible error by stating, without more, that the Board's findings of fact were not "clearly wrong" and its conclusions of law "not erroneous as a matter of law." See HCCRA, 196 W.Va. at 334-35, 472 S.E.2d at 419-20; Matter of Permit No. 36-7200, 121 Idaho 819, 828 P.2d 848, 851 (1992) ("Because this case is an appeal of an administrative determination, our inquiry is independent of the district court's appellate decision." (citations omitted)); Carl Bolander & Sons v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn.1993) ("In reviewing actions by a governmental body, the focus is on the proceedings before the decision-making body ... not the findings of the trial court."); Dubray, 913 P.2d at 1290.
[19] The use of the term "actual authority" was explained by the OSM as follows:
Actual Authority. As originally proposed, the rule would have defined `control' as `any relationship which gives one person express or implied authority to determine the manner in which that person or another person mines, handles, sells or disposes of coal ...' [emphasis provided] Some commentators stated that it was not clear what was meant by `express or implied authority.' They suggested that control should turn on `actual' authority, as opposed to `express or implied' authority. [OSM] agrees, and has not included the phrase `expressed or implied' in the final definition. Paragraphs (a)(3) and (b) simply use the term `authority,' which is intended to mean actual authority.
53 Fed.Reg. 38870 (1988) (emphasis added). See Spur, 12 OHA at 181.
[20] According to Bostonia, the Thomas brothers' interests in the coal industry comprised only a portion of their business concerns. Bostonia indicated that the T & T group of companies also included agriculture, insurance and banking interests.
[21] Coccari of the DEP challenged Clark's testimony that he worked for T & T as an independent consultant and not in his capacity as a Kingwood employee. Coccari testified that if Clark did in fact work as a consultant for T & T then the documents he signed would have so indicated.
[22] According to Chroussis, if Clark were not available to work for T & T, his firm would have arranged for another engineer to perform the work.
[23] Daugherty indicated that he was originally hired at Kingwood as its general manager. At KMC, he served as its chief engineer, vice president, and ultimately, its president.
[24] Kingwood's other expert witness, J. Steven Griles, former Deputy Assistant Secretary for the United States Department of Interior, Lands and Mineral Management, and author of the ownership and control definition set out in the federal regulations, explained the purpose of the Applicant/Violator System. The DEP objected to Mr. Griles' testimony below and argues on appeal that because 38 C.S.R. 2-2.84(b)(6) (1996) is clear and unambiguous, his interpretation of the (b)(6) presumption was inadmissible.
Our review of Griles' testimony reveals that he testified in the most general terms, essentially reiterating that which is found in 53 Fed.Reg. 38868 et seq. (authority on which the DEP relies) with regard to the rebuttable presumption and the term "actual authority." He further testified that the relationship between Kingwood and T & T was not the type of relationship that OSM contemplated when it wrote the (b)(6) presumption and that, therefore, the (b)(6) presumption did not exist in this case.
We conclude that if in fact the Board committed error in admitting Griles' brief testimony, such error was harmless and does not warrant reversal of this case. See generally syl. pt. 4, McAllister v. Weirton Hospital Co., 173 W.Va. 75, 312 S.E.2d 738 (1983). Though Griles testified that the relationship between the parties did not establish the (b)(6) presumption, significantly, the Board concluded otherwise. In conclusions of law 9 and 12, respectively, the Board stated: "Kingwood presented sufficient evidence to overcome any presumption of control created by the relationship between the parties[,]" and "regardless of whether the presumption does or does not exist, neither KMC or Kingwood has or had actual authority to determine the manner in which T & T conducts or conducted its mining operations." We find therefore that any error committed by the Board in admitting Griles' testimony, if it was error, was harmless.
[25] See Spur, 12 OHA at 199 ("`Evidence preponderates when it is more convincing to the trier of fact than the opposing evidence.'" (quoting 2 McCormick on Evidence 438 (4th ed.1992))).
[26] Having affirmed the Board's decision that neither KMC nor Kingwood owned or controlled T & T's mining operations within the meaning of 38 C.S.R. 2-2.84(b)(6) (1996), we need not determine whether Kingwood was a successor-in-interest to KMC. See generally Davis v. Celotex Corp., 187 W.Va. 566, 420 S.E.2d 557 (1992).
[1] The DEP is not represented by the Attorney General in this case, but by their own agency counsel, as is permitted by the statutes. This situation, in my opinion, can lead to problems. Important issues of what and how law applies to the State may be considered by this Court without the input and expertise of the State's chief legal officer, and without the consideration of the impact of decisions on these issues upon a wide variety of government agencies. See, e.g., State ex rel. Smith v. Kermit Lumber, 488 S.E.2d 901 (W.Va.1997) (holding that "personal action" statutes of limitation apply to the State; the State was represented in appeal by in-house counsel from DEP.) I think that one of the principal reasons that our founders established an Attorney General's office was to assure that important legal issues that will affect all state agencies had an advocate who is able to bring the expertise and breadth of government-wide representation before this Court, when we consider matters of overall importance to state government. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330383/ | 490 S.E.2d 754 (1997)
200 W.Va. 667
Ward W. KEESECKER, II, Plaintiff Below, Appellant,
v.
Walter M. BIRD, Committee for Emily Keesecker, and Arch Steiner, Committee for Emily Keesecker, Defendants Below, Appellees.
No. 23386.
Supreme Court of Appeals of West Virginia.
Submitted February 4, 1997.
Decided July 14, 1997.
*759 Richard G. Gay, Berkeley Springs, for Appellant Keesecker.
Christopher D. Janelle, Martinsburg, for Appellee Bird.
Charles S. Trump, IV, Berkeley Springs, for Appellee Steiner. *755 *756 *757
*758 STARCHER, Justice:
This case involves the application of summary judgment to claims of waste to a remainderman's interest in real and personal property. The plaintiff-appellant, Ward Keesecker, II, is the owner of a remainder interest in property bequeathed by will to Emily Keesecker for her life. The defendant-appellees, Walter M. Bird and Arch Steiner, were appointed by the circuit court of Arlington County, Virginia as the personal representatives over Emily Keesecker's affairs between 1981 and her death in 1993.[1] The appellant alleges that the appellees, while overseeing Emily Keesecker's affairs, negligently allowed the property in the life estate to deteriorate, and subsequently permitted the property to be mostly destroyed.
This appeal is the result of the circuit court's granting of summary judgment to the appellees. The circuit court ruled (1) that appellee Bird was "not a proper party" to this litigation, and (2) that the statute of limitations barred all claims against appellee Steiner. We find that the circuit court's summary judgment order as to appellee Bird is inadequate because it fails to identify the circuit court's factual and legal analysis, and we also hold that the circuit court incorrectly applied the "real party in interest" analysis found in West Virginia Rules of Civil Procedure ("W.Va.R.Civ.P.") Rule 17(a) [1978]. However, with respect to appellee Steiner, the record establishes that while Steiner was managing the property between 1981 and 1986, the appellant knew that waste was occurring, knew that Steiner last managed the property in 1986, and knew that Steiner's conduct may have caused or contributed to the property damage, yet the appellant waited over six years to initiate this lawsuit against Mr. Steiner. As such, the appellant's claims against appellee Steiner are barred by the applicable two-year statute of limitation. Accordingly, we reverse the circuit's order as to Mr. Bird, affirm the order dismissing the claims against Mr. Steiner, and remand the case for further proceedings.
I.
Facts and Background
In late 1974, Ward W. Keesecker, Sr., ("Dr.Keesecker") and his second wife, Emily M. Keesecker, who were both residents of Morgan County, West Virginia, were involved in an automobile accident. Dr. Keesecker died from his injuries on January 24, 1975. Emily Keesecker was hospitalized and later moved to a nursing home where she remained until her death on May 15, 1993. Testimony by the parties indicates that she was comatose for the last nine years of her life.
In his will, Dr. Keesecker gave certain real and personal property to Emily Keesecker for her life, and upon her death the remainder was to go to his son (by his first marriage), appellant Ward W. Keesecker, II. The real property, Highwood House, was a large home located in Berkeley Springs, West Virginia with more than 20 rooms and four floors. One insurance agent inspected the home in 1984 and found it had a replacement cost of $361,878.00, while another agent estimated the replacement value at $207,981.00.
*760 The personal property in the life estate consisted of the contents of Highwood House. The appellant alleges that the home was filled with antiques.
At some point prior to 1981, Emily Keesecker was moved to a nursing home in Arlington County, Virginia. On May 1, 1981, the Circuit Court of Arlington County, Virginia, appointed appellee Arch Steiner as "Committee of the estate of Emily M. Keesecker." Mr. Steiner moved to Tennessee in 1986, and on June 26, 1986 the Circuit Court of Arlington County, Virginia entered an order relieving Mr. Steiner of his duties and appointing appellee Walter Bird[2] as committee for Emily Keesecker. Mr. Steiner prepared a seven-page, single-spaced inventory listing the contents of each room of Highwood House and stated that these items were transferred to Mr. Bird. In his deposition, Mr. Bird acknowledged he inspected the house and signed the inventory list accepting the property.
Over the years of Mr. Bird's tenure as committee for the estate of Emily Keesecker, Highwood House was burglarized numerous times. Mr. Bird testified that he recalled reporting to the police more than a dozen thefts of personal property from Highwood House. No one was ever arrested for these burglaries. Mr. Bird also gave somewhat contradictory testimony about whether he sought indemnity for these losses from the homeowner's insurance company.[3] He testified that he never made any claims for losses or damages to the insurance company for any of these breaking and enterings, but he later said he had simply called his insurance agent to report these crimes. Mr. Bird testified the insurance agent said he would get back to him, but he "never heard anything back."
Accounting statements filed by Mr. Bird reflect income from the rental of Highwood House between June 1986 and June 1990, in addition to Emily Keesecker's pension and social security checks. By 1990, it appears that Mr. Bird became unable to rent the Highwood property. He boarded up the windows and padlocked the doors. Because the property was unoccupied, the homeowner's insurance company canceled all insurance policies on Highwood House effective January 26, 1990. Mr. Bird contacted his personal insurance agent and discussed insuring the property through another company, but later told the agent that he did not wish to purchase insurance coverage at that time.
On November 30, 1990, the Virginia Commissioner of Accounts wrote to Mr. Bird stating that the Commissioner would no longer approve disbursements from Mrs. Keesecker's estate account to pay for utilities, maintenance, or repairs to the house. The letter advised Mr. Bird to consider selling the house or abandoning it if it was of no value. It appears that Mr. Bird then listed the house with a local real estate company and indicated the selling price was $78,000.[4]
In April or May 1991, Mr. Bird returned to his insurance agent's office and asked about the possibility of insuring Highwood House. The insurance agent assisted Mr. Bird in completing an application for homeowner's insurance. However, in his deposition, the insurance agent testified that he did not process the application because Mr. Bird never paid the premiums for coverage.
On December 11, 1991, Mr. Bird wrote to appellant Ward Keesecker, II, saying that he had located a buyer willing to pay $78,000 for Highwood House and that he needed Mr. Keesecker to sign a contract approving the sale. Mr. Keesecker testified in his deposition that he received the letter but did not respond because he was not interested in selling his interest in the house. Two weeks after this letter was sent, on December 26, 1991, Highwood House was severely damaged in a fire of suspicious origin.
*761 On April 17, 1992, Mr. Bird initiated a lawsuit against Mr. Keesecker to force the sale of the house. The complaint alleges that Mr. Bird had located a buyer for Highwood House, and because of the expense of upkeep for the house, it was in the best interest of Mrs. Keesecker (the life tenant) that the fee simple interest in the property be sold. Accordingly, appellee Bird asked that the trial court compel the sale of Highwood House, and use the interest and income from the sale proceeds for the support of Mrs. Keesecker.[5] Appellant Keesecker answered the complaint and filed a counterclaim against appellee Bird and a third-party complaint against appellee Steiner alleging they committed waste to the property by failing to preserve Highwood House and its contents. The circuit court's granting of summary judgment on the counterclaim and the third-party complaint are the basis for this appeal.[6]
Subsequently, a second fire occurred at Highwood House on January 27, 1993, and while the extent of damage is not stated in the record, the testimony of the parties suggests that the house was virtually destroyed. Mrs. Keesecker died on May 15, 1993.
Both Mr. Bird and Mr. Steiner filed motions for summary judgment alleging that they were not proper parties to this action because they acted as fiduciaries and could not be held personally responsible for the debts of Emily Keesecker's estate. Accordingly, they insisted that the sole party defendant should be the estate of Mrs. Keesecker. Both appellees further argued that they did not commit waste, and could not be held responsible for waste even if it did occur. Lastly, Mr. Steiner alone argued that all claims against him were barred by the statute of limitation.
On August 18, 1995, the circuit court issued two brief orders granting Mr. Bird's and Mr. Steiner's motions for summary judgment. The circuit court dismissed the actions against Mr. Bird because he was "not a proper party to the instant litigation."[7] The actions against Mr. Steiner were dismissed as barred by the statute of limitation.[8] It is *762 from these two orders that Mr. Keesecker now appeals.
II.
Standard of Review
We first consider the appropriateness of summary judgment under W.Va. R.Civ.P. Rule 56 [1978]. As we stated in Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), we review a circuit court's entry of summary judgment de novo. The traditional standard for granting summary judgment was established in Syllabus Point 3 of Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963) where we held:
A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.
In accord, Syllabus Point 1, Fayette Co. National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997); Syllabus Point 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995); Syllabus Point 2, Painter, supra; Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
In Fayette Co. National Bank, supra, we mandated that "an order granting summary judgment cannot merely recite and rest exclusively upon a conclusion that, `No genuine issue of material fact is in dispute and therefore summary judgment is granted.'" 199 W.Va. at 353, 484 S.E.2d at 236. This Court must "determine whether the stated reasons for the granting of summary judgment by the lower court are supported by the record." Id. In order to accomplish this, a circuit court must identify the factual and legal support for its ultimate conclusions. We therefore held that:
Although our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.
Syllabus Point 3, Fayette County National Bank. With these standards in mind, we review the circuit court's orders.
III.
Discussion
A.
Summary Judgment as to Appellee Bird
i.
Adequacy of the Circuit Court's Order
In Fayette County National Bank, supra, we examined an order with language similar to that used by the circuit court in its summary judgment order regarding Mr. Bird. The circuit court's order in Fayette County National Bank simply stated:
The Court having maturely considered ... said Motion, it is the opinion of the Court that the relief prayed for should be granted, as is more fully set out in that letter dated June 8, 1995, the original of which is attached hereto and made a part hereof.
The referenced letter of June 8 provided:
The Court has considered plaintiff's motion for summary judgment, and after considering counsel's memorandums and argument is of the opinion that the motion should be granted, there being no genuine issues that exist as to material facts in this action for deficiency judgment.
We concluded that the above-stated "summary judgment findings by the circuit court... do not rise to the level of `meaningful' findings required by the holding we have made today." 199 W.Va. at 354, 484 S.E.2d at 237.
Our examination of the circuit court's order in the case sub judice leads us to the same conclusion. The circuit court dismissed the appellant's lawsuit against appellee Bird by stating:
It appearing to the Court that the facts underlying Defendant Bird's Motion for Summary Judgment are not in dispute, that Walter M. Bird is not a proper party to the instant litigation, and that due to the *763 foregoing, Defendant Bird is entitled to judgment as a matter of law....
We believe that, with this order, the circuit court failed to make the meaningful findings required by W.Va.R.Civ.P. Rule 56 and Fayette County National Bank. The findings in the Bird order are conclusory, and the order does not contain those findings of fact which were relevant, determinative of the issues and undisputed. The order is devoid of descriptive factual findings, contains no discussion of the numerous legal issues raised by the parties and is therefore inadequate. Accordingly, we reverse the circuit court's August 18, 1995 order regarding claims against appellee Bird and remand the case for full consideration.
ii.
Real Party in Interest Analysis
The circuit court dismissed appellee Bird because he was "not a proper party to the instant litigation." The parties agree that the circuit court's decision was based upon W.Va.R.Civ.P. Rule 17(a) [1978], which requires that actions be brought in the name of the "real party in interest."
Where an issue on appeal from the circuit court is clearly a question of law or involves an interpretation of a statute, we apply a de novo standard of review. Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). An interpretation of the West Virginia Rules of Civil Procedure likewise presents a question of law subject to a de novo review.
W.Va.R.Civ.P. Rule 17(a) states:
(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, or any other fiduciary, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by law may sue in his own name without joining with him the party for whose benefit the action is brought. When a law of the state so provides, an action for the use or benefit of another shall be brought in the name of the state or any political subdivision thereof. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
Rule 17(a) does not specifically define the term "real party in interest." "About the best that can be said for [Rule] 17 is that it conveys a certain amount of correct information about naming plaintiffs." Virginia Elec. & Power Co. v. Westinghouse Elec. Corporation, 485 F.2d 78, 82 (4th Cir.1973). While Rule 17(a) was originally "intended to expand the class of those who may sue to include persons having an equitable or beneficial interest, the rule is unfortunately susceptible to efforts to prevent prosecution of claims as illustrated by this appeal. Ingenious counsel are enabled to present yet another `decision point' resulting in extravagant expenditures of time and effort before ever reaching the merits." 485 F.2d at 83.
Our reading of the language of Rule 17(a) is that it plainly indicates that its analysis applies only to claimants, that is, individuals who "prosecute[]," "sue," or who may bring a lawsuit in the name of the state or others. The real party in interest analysis focuses upon a plaintiff, defendant, petitioner, or intervenor that is asserting a claim, counter-claim or cross-claim, as opposed to a defendant or respondent, that is, the persons against whom a claim is made.
The purpose of Rule 17(a) is not to simply identify a party by the correct title, but to ensure that the party who makes a claim possesses, under substantive law, the right sought to be enforced. Hanna Mining Co. v. Minnesota Power and Light Co., 573 F. Supp. 1395, 1397, (D.C.Minn.1983), aff'd, 739 F.2d 1368 (8th Cir.1984). The initial purpose of the rule was to broaden the scope of claimants, from the holder of the claim to representatives of the holders of claims. The Committee Note of 1966 to Amended Federal Rule of Civil Procedure 17(a) states, in part:
*764 In its origin the rule concerning the real party in interest was permissive in purpose: it was designed to allow an assignee to sue in his own name. That having been accomplished, the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata.
4 James W. Moore, Moore's Federal Practice, 3d Edition § 17 App.04.[9]
We therefore hold that the purpose of W.Va.R.Civ.P. Rule 17(a) is to ensure that the party who asserts a cause of action possesses, under substantive law, the right sought to be enforced. W.Va.R.Civ.P. Rule 17(a) allows circuit courts to hear only those suits brought by persons who possess the right to enforce a claim and who have a significant interest in the litigation. Virginia Elec. & Power Co., 485 F.2d at 83. The requirement that claims be prosecuted only by a real party in interest enables a responding party to avail himself of evidence and defenses that he has against the real party in interest, to assure him of finality of judgment, and to protect him from another suit later brought by the real party in interest on the same matter. Celanese Corp. of America v. John Clark Industries, 214 F.2d 551, 556 (5th Cir.1954). In its modern formulation, Rule 17(a) protects a responding party against the harassment of lawsuits by persons who do not have the power to make final and binding decisions concerning the prosecution, compromise, and settlement of a claim. Campus Sweater and Sportswear Co. v. M.B. Kahn Const. Co., 515 F. Supp. 64, 81 (D.S.C.1979), aff'd, 644 F.2d 877 (4th Cir. 1981).
Thus, the concept of a "real party in interest" addresses a litigant's right to pursue an action as a claimant. A defendant can be a real party in interest, if asserting a claim. National Safe Corp. v. Texidor Sec. Equipment, Inc., 101 F.R.D. 467 (D.P.R. 1984). See also W.Va.R.Civ.P. Rule 13 [1978] (compulsory and permissive counterclaims, and cross-claims against co-parties). A similar analysis applies to intervening parties. New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir.), cert. denied sub nom, Morial v. United Gas Pipe Line Co., 469 U.S. 1019, 105 S. Ct. 434, 83 L. Ed. 2d 360 (1984).
The language of Rule 17(a) expressly authorizes a real party in interest to sue on behalf of, or for the benefit of, another. Many of the examples of real parties in interest listed in the rule are individuals with some fiduciary interest (executors, administrators, guardians, bailees, trustees of an express trust, etc.), individuals who are charged with the responsibility of adequately representing another's interests. See 4 James W. Moore, Moore's Federal Practice, 3d Edition, § 17.10[3]. In Richardson v. Kennedy, 197 W.Va. 326, 475 S.E.2d 418 (1996), we noted that the personal representative of a decedent's estate, while a nominal party in a wrongful death claim, is still a real party in interest who may initiate a wrongful death action on behalf of the decedent's beneficiaries against a tortfeasor.
However, simply because a claimant falls into one of the categories of persons listed in Rule 17(a) does not end the analysis; the claimant must still establish they have a right under the substantive law to initiate a lawsuit to enforce some right.
[T]he mere fact that plaintiff falls within one of the classes of persons enumerated in Rule 17(a) is not dispositive of the real party in interest question, for that rule assumes that the enumerated persons are granted the right to sue by the applicable substantive law. *765 Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250, 257 (5th Cir.1980). See also, Childers v. Eastern Foam Products, Inc., 94 F.R.D. 53, 55 (N.D.Ga.1982); See v. Emhart Corp., 444 F. Supp. 71, 73 (W.D.Mo.1977); Virginia Elec. & Power Co., 485 F.2d at 83; United States v. 936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir.1969).
Plaintiff-appellant Keesecker argues that defendant-appellee Bird is a "proper party" in this action because Mr. Bird was a "guardian" or "other fiduciary" as listed in Rule 17(a). The circuit court ruled instead that Mr. Bird was "not a proper party." We believe that this analysis is backwards; the test under Rule 17(a) is whether Mr. Keesecker is a real party in interest, for he is the party prosecuting a claim for waste to the life estate and damage to his remainder interest. As the defending party to that claim, Mr. Bird is not subject to the real party in interest analysis.[10]
We conclude that the circuit court in this case erred by ruling that defendant Bird was "not a proper party" under W.Va. R.Civ.P. Rule 17(a). The focus of the Rule 17(a) analysis should have been on Mr. Keesecker's right and interest in prosecuting an action for waste to his interest in property, and not whether Mr. Bird was a proper defendant. Mr. Keesecker is undoubtedly the owner of the remainder interest in the life estate property. Accordingly, it appears that the appellant, Mr. Keesecker, has both a sufficient interest in the litigation and may be entitled under the substantive law to recover for damages to his remainder interest. Therefore, Mr. Keesecker is a real party in interest entitled to pursue his action for waste.
However, as we have previously noted, the parties agree that the circuit court's summary judgment ruling relied upon Rule 17(a)'s "real party in interest" principles to find that Mr. Bird was not a proper party defendant. As we have shown, Rule 17(a) applies to parties prosecuting claims, not parties defending against claims. Therefore, the circuit court erred in relying upon Rule 17(a) to dismiss Mr. Bird as a defendant.[11]
iii.
Choice of Law
Because we reverse the decision of the circuit court dismissing Mr. Bird as a defendant and remand this case for further proceedings on appellant's claims against Mr. Bird, we address a purely legal issue which may arise upon remand.
All of the parties in this case converge their arguments on the duty of care owed by *766 the appellees to the late Mrs. Keesecker and to the appellant. However, the parties disagree over what law governs those duties. The appellant argues that because the life estate property is located in West Virginia, West Virginia law alone controls the duties of the parties. Appellee Bird argues that Virginia law controls his duties towards Mrs. Keesecker's estate; Bird does not directly address what that law might be.
We believe that on remand the circuit court must determine Mr. Bird's duties towards the estate of Emily Keesecker under both Virginia and West Virginia law.
First, Mr. Bird's committeeship was established in Virginia, according to Virginia law, by a Virginia court, and he was supervised by a Virginia Commissioner of Accounts. Therefore, the circuit court must initially determine whether Virginia law imposed a duty upon Mr. Bird to manage Emily Keesecker's real and personal property, wherever located. Whether or not Mr. Bird was supposed to stand in Emily Keesecker's shoes and care for Highwood House and its contents is to be determined by Virginia law.[12]
Second, if it is determined that Virginia law established a duty upon appellee Bird to manage the real and personal property located in West Virginia, then the next question how appellee Bird was to manage that propertyis to be determined by West Virginia law. It is a universal principle of law that real property is subject to the law of the country or state within which it is situated. See, e.g., United States v. Crosby, 7 Cranch 115, 116, 11 U.S. 115, 116, 3 L. Ed. 287 (1812); 16 Am.Jur.2d Conflicts of Laws, § 24. See also, In re Rumford's Will, 66 W.Va. 39, 42, 66 S.E. 10, 12 (1909) ("In respect to passing of title to real estate the lex loci rei sitae governs...."); Syllabus Point 2, In re Briggs' Estate, 148 W.Va. 294, 134 S.E.2d 737 (1964) (validity of a will with respect to personalty governed by the laws of the place of testator's last domicile, and with respect to realty, the laws of the place where the realty is situated; the place where the will was executed is without legal significance).
All matters concerning the taxation of realty, title, alienation, and the transfer of realty and the validity, effect, and construction which is accorded agreements intending to convey or otherwise deal with such property are determined by the doctrine of lex loci rei sitae, that is, the law of the place where the land is located. Matter of Grayco Land Escrow, Ltd., 57 Haw. 436, *767 449, 559 P.2d 264, 274 (1977). Every state has plenary jurisdiction and control of the property, real and personal, located within its borders. In re Ray's Estate, 74 Wyo. 317, 330, 287 P.2d 629, 634 (1955), quoting In re Smith's Estate, 55 Wyo. 181, 200, 97 P.2d 677, 684 (1940).
We therefore hold that the choice of law doctrine of lex loci rei sitae controls as to property located in this State. The doctrine of lex loci rei sitae exists because it is particularly important that there be certainty, predictability and uniformity of result and ease in the determination and application of the law to be applied concerning the transaction of property and the management of property.[13] Accordingly, if the appellees, under Virginia law, owed Emily Keesecker a duty to manage her real and personal property located in West Virginia, then the method of caring for the property was to be guided by West Virginia law.[14]
B.
The Circuit Court's Summary Judgment as to Appellee Steiner
Appellant Keesecker testified in his deposition that he was aware that his father's will *768 had created a life estate of Highwood House for Emily Keesecker, "and upon her passing it would be mine and all the contents." During the period appellee Steiner managed Emily Keesecker's affairs, the appellant testified he would visit the Highwood property at least once a year. The appellant knew that Mr. Steiner was acting as his step-mother's committee, and testified that Mr. Steiner had tried to buy his interest in the estate. During Mr. Steiner's tenure as committee, the appellant noted that the real property was falling into a state of disrepair, and that the personal property also was not being cared for. The appellant held the opinion that the "serious dilapidation of the house" commenced the day his father died in 1975.
The appellant was not immediately aware of the change of committee over his step-mother's estate in 1986. However, he testified in his deposition that he
... just had hearsay, people had said ... [and] I believed from what I had heard that Mr. Bird was managing the estate, which I guess I would assume was committee because Mr. Steiner had moved to Tennessee and left Mr. Bird in charge. That was my understanding.
Although the record is unclear on the exact date, it appears that during Mr. Bird's tenure *769 as committee the appellant visited Highwood House. The appellant again found significant deterioration, finding bricks had fallen off a chimney and cut holes in the metal roof. He testified he repaired the holes to minimize damage to the house that would "obviously further deteriorate the house."
The appellant alleges that appellee Steiner's failure to make basic repairs to Highwood House and its contents between 1981 and 1986 constitutes waste under West Virginia law. The appellee argues that the appellant's claims, if any, are barred by the statute of limitation because the appellant waited nearly six years to initiate this action for waste. We agree with the appellee.
There are four steps to determining if a claim is barred by a statute of limitation. The first step in analyzing any statute of limitation question is to determine the applicable statute. Waste is a property damage tort consisting of an injury to the freehold by one rightfully in possession of land.[15]Cecil v. Clark, 49 W.Va. 459, 470, 39 S.E. 202, 206 (1901). A plaintiff need not be in possession of the land to initiate action. The action is "not one to recover damages for injury to the possession of the land ... [but for] permanent injury done to the freehold...." Crowder v. Fordyce Lumber Co., 93 Ark. 392, 394, 125 S.W. 417, 418 (1910).
A life tenant owes a duty to a remainderman not to commit either voluntary or permissive waste. Waste is "any permanent or lasting injury done or permitted to be done by the holder of the particular estate to lands, houses, or other corporeal hereditaments, to the prejudice of the heir or of him in remainder or reversion." Gwinn v. Rogers, 92 W.Va. 533, 540, 115 S.E. 428, 430 (1922). "Waste, injury to the freehold by a tenant for life or years, is actionable at common law, whether it result from affirmative wrongful acts or mere omission to perform duty." Talbott v. Southern Oil Co., 60 W.Va. 423, 427, 55 S.E. 1009, 1011 (1906).[16] The term "waste" implies neglect or misconduct resulting in material damage to or loss of property, but does not include ordinary depreciation of property due to age and normal use over a comparatively short period of time. Moore v. Phillips, 6 Kan. App. 2d 94, 97, 627 P.2d 831, 834 (1981).
"Voluntary" or "commissive" waste involves the commission of the deliberate, willful or voluntary destruction or carrying away of something attached to the freehold. See, e.g., Gwinn v. Rogers, supra (tenant not liable to landlord for holes dug for tent posts and trampled grass in striking miners' camp, as it is not a permanent injury rising to the level of waste); Hardman v. Brown, 77 W.Va. 478, 88 S.E. 1016 (1916) (co-tenant liable to other co-tenant for wantonly removing timber); Cecil v. Clark, supra, (co-tenant liable to other co-tenants for mining of coal); Bettman v. Harness, 42 W.Va. 433, 26 S.E. 271 (1896) (landlord may obtain injunction against tenant for removing oil and gas, if irreparable harm and title to land by landlord is established); Rogers v. Coal River Boom & Driving Co., 41 W.Va. 593, 23 S.E. 919 (1896) (landlord stated claim against tenant for waste, when tenant built logging boom in river which diverted the water flow, thereby damaging landlord's soil); Koen v. Bartlett, 41 W.Va. 559, 23 S.E. 664 (1895) (it is not waste for life tenant to operate mines *770 or oil and gas wells existing when life estate created); McDodrill v. Pardee & Curtin Lumber Co., 40 W.Va. 564, 21 S.E. 878 (1895), overruled on other grounds, Ritz v. Kingdon, 139 W.Va. 189, 79 S.E.2d 123 (1953) (Plaintiffs, owners of land subject to a life estate, entitled to damages for waste or trespass for timber cut by defendant; amount of recovery dependent upon whether defendant was a co-tenant or stranger); Williamson v. Jones, 39 W.Va. 231, 19 S.E. 436 (1894) (petroleum and mineral oil are as much a part of the realty as timber, coal, iron ore, or salt water; removal by a life tenant constitutes waste); Dunlap v. Hedges, 35 W.Va. 287, 13 S.E. 656 (1891) (because insolvent mortgagor of property was cultivating land in a "wasteful and destructive" manner, holder of deed of trust was entitled to appointment of receiver to manage property); University v. Tucker, 31 W.Va. 621, 8 S.E. 410 (1888) (contingent remainderman entitled to injunction against waste caused by life tenant taking clay from the soil to use in manufacturing bricks); Core v. Bell, 20 W.Va. 169 (1882) (seller of land on a purchase contract may enjoin buyer from cutting timber or committing other waste, if such cutting is calculated to diminish the value of the land so that the land will not be sufficient to pay the unpaid purchase money); Frank & Co. v. Brunnemann, 8 W.Va. 462 (1875) (when a tenant is, by the terms of a lease, restricted to a particular use of the land a court may enjoin the tenant from other land uses such as cutting timber).
"Permissive waste" is the failure of the tenant, under the circumstances, to exercise the ordinary care of a prudent man for the preservation and protection of the estate. Moore v. Phillips, 6 Kan.App.2d at 97, 627 P.2d at 834; Fisher's Executor v. Haney, 180 Ky. 257, 259, 202 S.W. 495, 496 (1918). See, e.g., Greathouse v. Greathouse, 46 W.Va. 21, 32 S.E. 994 (1899) (widow with dower interest not liable to reversioner for natural wear and tear damages totaling less than $35, including allowing property to grow up in briars, allowing buildings and fencing to decay, and cutting a tree worth $15); Dunlap v. Hedges, supra, (because insolvent mortgagor of property "suffer[ed] said real estate to deteriorate in value by allowing the fences to go down," holder of deed of trust was entitled to appointment of receiver to manage property).
It appears that the appellant is alleging the appellees allowed permissive waste, an injury to property, to occur to Highwood House. Accordingly, the applicable statute of limitation in this case is found in W.Va.Code, 55-2-12 [1959][17] which requires that an action for damage to property be brought within two years of the date the action accrued.
The second step in evaluating a statute of limitation question is to establish when the requisite elements of the alleged tort occurred, such that the cause of action "accrued." In this case, assuming arguendo that appellee Steiner owed Emily Keesecker a duty to faithfully manage her life estate property in West Virginia, and a duty to not commit waste to the appellant's remainder interest in the property, the latest possible breach of that duty would have occurred in 1986 when he relinquished his committeeship to appellee Bird. Accordingly, any cause of action against appellee Steiner accrued in 1986, and any lawsuit for property damage would have had to have been filed by 1988.
The next step is to determine whether the plaintiff is entitled to the benefit of the ameliorative effects of the discovery rule. Under the "discovery rule," the statute of limitations is tolled until a claimant knows or by the exercise of reasonable diligence should know of his claim. Syllabus Point 1, in part, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992). "The `discovery rule' is generally applicable to all torts, unless there is a clear statutory prohibition of its application." Syllabus Point 2, Id.
In Syllabus Point 4 of Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997), we set forth the test which *771 circuit courts must use to determine the applicability of the discovery rule:
In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.
We stated that "[t]his rule tolls the statute of limitations until a plaintiff, acting as a reasonable, diligent person, discovers the essential elements of a possible cause of action, that is, discovers duty, breach, causation and injury." 199 W.Va. at 714, 487 S.E.2d at 909.
Applying Gaither to the case at hand, it is clear that the appellant cannot benefit from the discovery rule. The appellant testified that he knew as far back as 1975 that the property was deteriorating, and that permanent damage was occurring to his remainder interest in the property throughout appellee Steiner's tenure as committee. Second, the appellant knew that Mr. Steiner was acting as his step-mother's committee, and knew that he may have been failing to properly care for Emily Keesecker's life estate property. The appellant also knew that Mr. Steiner had relinquished his duties in 1986 and moved on, thereby ending any day-by-day breach of duty. Lastly, the appellant knew by 1986 that any breach of duty by the appellee was causing the alleged damage to the appellant's property interest. Hence, in 1986 or shortly thereafter, the appellant knew all of the elements of a possible cause of actionbut failed to take any action. The appellant knew he that had an injury; knew that Mr. Steiner owed the appellant a duty of care, and knew that Mr. Steiner may have breached that duty; and knew that the potential breach was a cause of the injury. Therefore, the appellant is not entitled to the protection of the discovery rule.
The last step in the statute of limitation analysis is to determine if the limitation period is tolled by some misconduct of the defendant. In Cart v. Marcum, supra, we recognized that in some circumstances causal relationships are so well established that we cannot excuse a plaintiff who pleads ignorance. In those instances where a cause of action should be patently obvious (such as in the case under consideration), the plaintiff cannot claim ignorance. The only way a plaintiff can toll the statute of limitation in such circumstances is to make "a strong showing ... that some action by the defendant prevented the plaintiff from knowing of the wrong at the time of the injury." Syllabus Point 3, Cart, supra. Our review of the record shows no competent evidence by the appellant that appellee Steiner did anything to hide his actions from the appellant.
Accordingly, we hold that the circuit court correctly ruled that any causes of action which the appellant may have had against appellee Steiner were barred by the statute of limitation.[18]
IV
Conclusion
The circuit court's August 18, 1995 order as to appellee Steiner is affirmed. The circuit court's August 18, 1995 order as to appellee Bird is reversed, and the case is remanded for proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] As is further discussed in Section I, Emily Keesecker was seriously injured in an auto accident in 1974. The record is unclear how she managed her affairs between the time of the 1974 accident and the appointment of appellee Steiner as her committee in 1981, and unclear about when she was moved to a nursing home in Arlington County, Virginia.
[2] The record does not show how Mr. Bird is related to the Keesecker family. As best we can determine, it appears that his only relationship to Mrs. Keesecker was that he owned property known as Berkeley Castle, a home formerly owned by Dr. Keesecker and situated next-door to Highwood House.
[3] The record does suggest that Mr. Bird had purchased $5,000 in personal property insurance on Highwood House.
[4] The record does not state whether Mr. Bird intended to sell Mrs. Keesecker's life estate share of the property for $78,000, or the entire fee simple.
[5] It appears that appellee Bird did not give any consideration to the fact that Mrs. Keesecker owned only a life estate interest in the property and that the remainder was owned by appellant Ward Keesecker, II.
[6] Subsequent to Mrs. Keesecker's death, the trial court dismissed Mr. Bird's complaint and realigned the parties. Accordingly, Mr. Keesecker was restyled as the plaintiff, and Mr. Bird and Mr. Steiner as the defendants.
[7] The circuit court's order as to appellee Bird states, in its entirety:
This matter came before the Court this 18th day of August, 1995 upon motion of the Defendant, Walter M. Bird, for summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, upon the response of the Plaintiff, and the Defendant Arch Steiner, and upon the reply of the movant. It appearing to the Court that the facts underlying Defendant Bird's Motion for Summary Judgment are not in dispute, that Walter M. Bird is not a proper party to the instant litigation, and that due to the foregoing, Defendant Bird is entitled to judgment as a matter of law; it is accordingly ADJUDGED and ORDERED that all claims against the Defendant Walter M. Bird are hereby DISMISSED, without prejudice.
The Clerk shall enter the foregoing as of the day and date first written above and shall transmit attested copies thereof to all counsel of record.
[8] The circuit court's order as to appellee Steiner states, in its entirety:
This matter became mature for a decision this 18th day of August, 1995, upon the papers, pleadings and ORDERS formerly had and read herein; upon the motions for summary judgment filed by all parties herein; upon the memoranda and argument submitted by the parties in support of and in opposition to said motions.
Based upon all of the foregoing, the Court is of the opinion that summary judgment is appropriate in favor of the Defendant Arch Steiner and against the Plaintiff Ward Keesecker II. In granting this motion, the Court finds that the record in this case establishes that the total destruction of the property in which the Plaintiff had a remainder interest happened more than five years after the Defendant Arch Steiner had been replaced as Emily Keesecker's committee, which resignation and replacement occurred on the 26th day of June, 1986.
Accordingly, the Plaintiff's claims against the Defendant Arch Steiner, are dismissed with prejudice and the Defendant shall have and recover his costs in this behalf expended. The Court notes the timely exception of the Plaintiff to the Court's ruling. The Clerk shall enter the foregoing ORDER on and for the day and date abovefirst [sic] written, and the Clerk shall send attested copies hereof to all counsel of record.
[9] There are critics of Fed.R.Civ.P. Rule 17(a), which is identical to W.Va.R.Civ.P. Rule 17(a):
Rule 17(a) is a barnacle on the federal practice ship. It ought to be scraped away. If it were, some fear that lawyers would point to its absence and argue that the ship is somehow different without it. But [Fed.R.Civ.P.] Rules 19, 17(b) and substantive rules as to stating a claim for relief are adequate without interjecting the meaningless, logically inconsistent commands of the real party in interest rule. The solution is to abolish it with the explanation that it is a fascinating historical growth but it is no longer necessary.
John E. Kennedy, Federal Rule 17(a): Will the Real Party in Interest Please Stand?, 51 Minn. L.Rev. 675, 724 (1967).
[10] As discussed in the text, W.Va.R.Civ.P. Rule 17(a) relates exclusively to a party prosecuting or initiating a claim (whether they are a plaintiff, defendant, intervenor or otherwise), and requires that the individual be a "real party in interest." W.Va.R.Civ.P. Rule 17(c) tends to confuse the matter, as it discusses representatives who may "sue or defend[.]" Rule 17(c) relates to the legal capacity of the individuals participating in the litigation.
Under W.Va.R.Civ.P. 17(c), whenever an infant, incompetent person, or convict has a duly qualified representative, such as a guardian, curator, committee or other like fiduciary, such representative may sue or defend on behalf of the infant, incompetent person, or convict. If a person under any disability does not have a duly qualified representative he may sue by his next friend. The court shall appoint a discreet and competent attorney at law as guardian ad litem for an infant, incompetent person, or convict not otherwise represented in an action, or the court shall make such other order as it deems proper for the protection of any person under disability.
Syllabus Point 3, State ex rel. McMahon v. Hamilton, 198 W.Va. 575, 482 S.E.2d 192 (1996). To be clear, however, capacity to sue or be sued under Rule 17(c) is not the equivalent of real party in interest status under Rule 17(a).
Capacity is a broader concept, aimed at assessing a litigant's general ability or power to sue or be sued. The real party in interest inquiry is more specific, aimed at assessing whether the litigant is the holder of the right to be vindicated in a particular case. While all litigants plaintiff and defendantmust have capacity, only those asserting claims must be real parties in interest[.]
4 James W. Moore, Moore's Federal Practice, 3d Ed. § 17.20[2].
[11] If it is assumed arguendo that under West Virginia law a conservator can be personally liable for the negligent, reckless or intentional waste of a remainderman's interest in property, then Mr. Bird is a facially proper defendant in this litigation. However, this legal issue was not addressed by the circuit court in its summary judgment order or otherwise. The circuit court, on remand, should determine and evaluate the factual circumstances and address this legal question in the first instance. See Section III.A.i, infra.
[12] The parties did not brief, nor did the trial court consider, the standard of care which must be exercised by a fiduciary towards a ward in Virginia. In West Virginia, we hold fiduciaries to the highest standard of care towards their ward, as recognized by Justice Cardozo:
Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the `disintegrating erosion' of particular exceptions.... Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd....
Kanawha Valley Bank v. Friend, 162 W.Va. 925, 928-29 n. 2, 253 S.E.2d 528, 530 n. 2 (W.Va. 1979), quoting Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928).
In Virginia, a committee is appointed for the purpose of securing a competent person to manage the property of an incompetent adult. Shands v. Shands, 175 Va. 156, 160, 7 S.E.2d 112, 113 (1940). In Somers v. Godwin, 182 Va. 144, 152, 27 S.E.2d 909, 912 (1943), the Virginia Supreme Court noted that Virginia statutes give a committee "possession of his [ward's] estate[.]" The committee "shall take care of and preserve such estate and manage it to the best advantage...." Id. See also Va.Code, 37.1-142 [1990] (repealed effective January 1, 1998). The Virginia Court noted in Somers that a committee is "charged with the performance of his duties with the highest fidelity and with the utmost good faith and loyalty to the trusts imposed on him." 182 Va. at 154, 27 S.E.2d at 913. See also Crisman v. Swanson, 193 Va. 247, 253, 68 S.E.2d 502, 506 (1952) (Property was placed in trust for incompetent widow; "During her life the trustee could use the property only for the purpose and within the limits of the trust upon which it was given; that is, for the comfortable care of the wife. The purpose to which it could apply it was thus limited. For faithlessness to its trust, it [the trustee] would be accountable before a court of equity to those injured.")
[13] On the one hand, we continue to follow the common law maxim of mobilia sequuntur personam, a "convenient `fiction'" that the law of the domicile of the person governs the taxation of intangible personal property. In re Wheeling Steel Corp. Assessment, 115 W.Va. 553, 556, 177 S.E. 535, 536-537 (1934), aff'd sub nom., Wheeling Steel Corp. v. Fox, 298 U.S. 193, 56 S. Ct. 773, 80 L. Ed. 1143 (1936); In re Wheeling Steel Corp. Assessment, 137 W.Va. 653, 668-69, 73 S.E.2d 644, 653 (1952). See also Watson v. Town of Fairmont, 38 W.Va. 183, 186, 18 S.E. 467, 468 (1893), citing City of Wheeling v. Hawley, 18 W.Va. 472, 476 (1881) ("It is also the settled law of this state ... `that money, credits, securities and investments follow the person.'"). On the other hand, tangible personal property continues to be exclusively subject to the laws of the state where it is permanently located, regardless of the domicile of the owner. Wheeling Steel Corp. v. Fox, 298 U.S. at 208-9, 56 S.Ct. at 776, 80 L.Ed. at 1147. The United States Supreme Court held in Frick v. Pennsylvania, 268 U.S. 473, 45 S. Ct. 603, 69 L. Ed. 1058 (1925) that the power to tax tangible personal property rests exclusively in the state where the property has an actual situs. "By this decision, the ancient maxim, mobilia sequuntur personam, as applied to tangible personal property was eliminated root and branch, but the maxim was applied to intangibles." Commonwealth v. Appalachian Electric Power Co., 159 Va. 462, 466, 166 S.E. 461, 462 (1932).
[14] Assuming, arguendo, that Virginia law imposed on the appellees a duty to manage the West Virginia property, then the primary issue in contention is whether under West Virginia law appellee Bird, as a fiduciary for Emily Keesecker, can be held personally responsible for waste to the appellant's remainder interest in the property. We can find no case law addressing this detailed fact pattern, and counsel for the parties have not referred us to any. However, we note that subsequent to 1994, the West Virginia Guardianship and Conservatorship Act addresses a fiduciary's personal liability for negligent actions. W.Va.Code, 44A-3-14 [1994] states, in part:
(a) A conservator shall have a fiduciary duty to the protected person for whom he or she was appointed conservator and may be held personally liable for a breach of that duty.
. . . . .
(c) A conservator is personally liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if personally negligent.
The Act defines "conservator" as someone "responsible for managing the estate and financial affairs of a protected person...." W.Va.Code, 44A-1-4(1) [1994]. The Act was passed after Mrs. Keesecker's 1993 death, and while instructive, it is not applicable to the instant case.
The parties also dispute the level of repairs which the appellees should have performed on Highwood House. The appellees contend the house required extraordinary repairs, and a life tenant is only required to make ordinary repairs. Further, the appellees contend that there were insufficient funds in Emily Keesecker's estate to pay for repairs. The parties have not addressed the losses to the personal property in the life estate, and whether the theft of and/or damage of such personal property constitutes waste. See, e.g., Bartlett v. Patton, 33 W.Va. 71, 10 S.E. 21 (1889) (where chattels are given by will to a person for life, that person (or their estate) may be accountable for chattels sold and converted, unless the chattels are to be consumed in their use). Questions also remain whether destruction of Highwood House by fire constitutes permissive waste. Additionally, the parties need to address whether appellee Bird may be held responsible for failing to seek indemnity for those losses to the insurer of Highwood House. See, Johnson v. Chapman, 43 W.Va. 639, 28 S.E. 744 (1897) (a life tenant is entitled to sue for damages to estate property). It appears that these questions could involve a determination of what, under the circumstances, would have been reasonable; such questions may be for a jury.
Lastly, a significant legal question which the circuit court may be called upon to address is the issue of whether Emily Keesecker's estate had a duty to insure Highwood House against fire. Several jurisdictions have concluded that there is no such duty by the life tenant, unless the deed or will creating the life estate imposes a duty. These states hold that a life tenant and remainderman can each insure their own interest, and neither has any claim to the proceeds of the other's policy. See, e.g., Harrison v. Pepper, 166 Mass. 288, 289, 44 N.E. 222, 223 (1896) (A "life tenant is not bound to keep the premises insured for the benefit of the remainder-man."); Bennett v. Featherstone, 110 Tenn. 27, 71 S.W. 589 (1902); Kincheloe v. Gibson's Executrix, 115 Va. 119, 78 S.E. 603 (1913); Blanchard v. Kingston, 222 Mich. 631, 193 N.W. 241 (1923); Thompson v. Gearheart, 137 Va. 427, 119 S.E. 67 (1923); Richardson v. McCloskey, 276 S.W. 680 (Tex. Com.App.1925), (reaffirmed in Hill v. Hill, 623 S.W.2d 779 (Tex.App.1981)); Underwood v. Fortune, 9 S.W.2d 845 (Mo.App.1928); Bell v. Barefield, 219 Ala. 319, 122 So. 318 (1929); In re Gorman's Estate, 321 Pa. 292, 184 A. 86 (1936); Farmers' Mut. Fire & Lightning Ins. Co. of Andrew County v. Crowley, 354 Mo. 649, 190 S.W.2d 250 (1945); Jackson v. Jackson, 211 Ark. 547, 201 S.W.2d 218 (1947); Almeida v. Price, 107 Cal. App. 2d 148, 236 P.2d 823 (1951); Lynch v. Johnson, 196 Va. 516, 84 S.E.2d 419 (1954); Honeyman v. Heins, 131 Ill.App.2d 981, 268 N.E.2d 907 (1971); Banaszak v. Banaszak, 133 Wis. 2d 358, 363, 395 N.W.2d 614, 616 (1986) ("While insurance is one means to finance rebuilding costs, it is not maintenance. Insurance is a means of risk allocation, and the life tenant may choose to risk having to finance rebuilding the structure from her own assets.").
Other jurisdictions have reached the opposite conclusion and require life tenants to insure the estate property. These jurisdictions have held a life estate is a quasi-trust, with the life tenant having a duty to preserve the estate for the benefit of the remainderman; therefore, a life tenant has a duty to not only make repairs and improvements, but pay taxes on insurance on the property. See, Clyburn v. Reynolds, 31 S.C. 91, 9 S.E. 973 (1889); Green v. Green, 50 S.C. 514, 533, 27 S.E. 952, 958 (1897) ("[A] life tenant holds the relation of an implied or quasi trustee to the remaindermen, and that any proceeds of a fire policy are subject to the laws regulating trusts."); Sampson v. Grogan, 21 R.I. 174, 42 A. 712 (1899); Clark v. Leverett, 159 Ga. 487, 126 S.E. 258 (1924); Pool v. Pool, 214 Ky. 267, 270, 283 S.W. 111, 112 (1926) ("[I]t is the duty of the life tenant to pay taxes and insurance and to maintain the property in a reasonable condition...."); Thomas v. Thomas' Guardian, 244 Ky. 724, 51 S.W.2d 949 (1932) (overruled in part, Gaugh v. Gatewood, 380 S.W.2d 84 (Ky.1964)); Crook v. Hartford Fire Ins. Co., 175 S.C. 42, 178 S.E. 254 (1935); Fitterling v. Johnson County Mut. Fire Ins. Co., 232 Mo.App. 805, 112 S.W.2d 347 (1938) (a life tenant is a trustee for the remaindermen); Crisp County Lumber Co. v. Bridges, 187 Ga. 484, 200 S.E. 777, 778 (1939) ("[T]he relation of the life tenant to the remainderman has been held to be, to a certain extent, a fiduciary one, and termed an implied or quasi trusteeship."); In re John's Will, 75 N.Y.S.2d 693, 696 (1947) ("The law is well settled that in the absence of a contrary direction in the will, the life tenant of real property must pay taxes, insurance and ordinary repairs thereon."); Commercial Nat. Bank & Trust Co. of N.Y. v. Erwin, 277 A.D. 378, 100 N.Y.S.2d 200, 205 (1950) ("The usual rule of construction is that a life tenant is obligated to pay for ordinary repairs, insurance, taxes and other carrying charges."); In re Rosenblum's Will, 132 N.Y.S.2d 604, 607 (1954); Coleman v. Banks, 349 S.W.2d 737, 741 (Tex.Civ.App.1961) ("[T]he life tenant, and not the remainderman, must bear the expenses of the care and preservation of the property, including insurance premiums, taxes, etc."), holding questioned in Hill v. Hill, 623 S.W.2d 779 (Tex.App. 1981); Adams v. Adams, 371 S.W.2d 637, 638 (Ky.1963) ("[T]he life tenant is bound to pay taxes, insurance, repairs and improvements and cannot charge them against the remaindermen." (citations omitted)).
We note that the appellant never insured his own interest in the property. The appellant's zeal regarding insurance only developed after the property was destroyed by fire.
[15] Conversely, trespassing is an injury to the freehold by a stranger to the land. "This marks the distinction between waste and trespass." Cecil v. Clark, 49 W.Va. 459, 470, 39 S.E. 202, 206 (1901).
[16] Injunctive relief is also available to restrain waste that is causing irremediable injury, an injury destructive to either the substance of the inheritance or that which gives it its chief value. Greathouse v. Greathouse, 46 W.Va. 21, 22, 32 S.E. 994, 995 (1899). We acknowledged the difficulty in defining irreparable injury in Bettman v. Harness, 42 W.Va. 433, 437, 26 S.E. 271, 272 (1896), when we stated:
What is irreparable injury? It is impossible to define it inflexibly. Rights of property and its uses change so; so many new rights of property with new uses arise as time goes on.... The word "irreparable" means that which cannot be repaired, restored, or adequately compensated for in money, or where the compensation cannot be safely measured. The courts have generally regarded as irreparable injuries the digging into mines of coal, iron, lead, and precious metals, and, as such injuries subtract from the very substance of the estate, and tend to its ultimate destruction, equity is said to be prompt to restrain them.
[17] W.Va.Code, 55-2-12 [1959], states:
Every personal action for which no limitation is otherwise prescribed shall be brought:
(a) Within two years next after the right to bring the same shall have accrued, if it be for damage to property....
[18] We note, however, that the circuit court's order regarding appellee Steiner contains the same inadequacies as the order concerning appellee Bird. While the order is marginally more specific than the order concerning the claims against appellee Bird, we still believe the order fails to provide meaningful findings as required by Fayette County National Bank, supra. Nevertheless, because the order regarding appellee Steiner is clearly correct, it is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330680/ | 413 S.E.2d 107 (1991)
Cleve BENEDICT, in his official capacity as Commissioner of Agriculture and in his individual capacity as a citizen and taxpayer of West Virginia on Behalf of all citizens and taxpayers of West Virginia, and West Virginia Board of Osteopathy, Petitioners Below, Appellees,
v.
Charles M. POLAN, Secretary, Department of Administration and Commissioner, Division of Finance and Administration; Glen B. Gainer, Auditor; and Larrie Bailey, Treasurer Respondents Below, Appellants.
No. 20116.
Supreme Court of Appeals of West Virginia.
Submitted October 1, 1991.
Decided December 13, 1991.
*109 Jan L. Fox, Deputy Atty. Gen., Charleston, for appellants.
Webster J. Arceneaux, III, Sp. Asst. Atty. Gen., Lewis, Ciccarello and Friedberg, Charleston, for appellees.
*108 WORKMAN, Justice:
The question presented to this Court is whether the Circuit Court of Kanawha County correctly ruled that House Bill No. 4456 (1990) unconstitutionally transferred monies from three special revenue accounts for the benefit of the Division of Human Services, Department of Health and Human Resources ("DHS"). After reviewing the pertinent statutory and constitutional provisions, we conclude that the transfer of funds contemplated by House Bill No. 4456 and sought by appellants, those individuals holding the respective titles of secretary, department of administration and commissioner, division of finance and administration, auditor, and treasurer, was unlawful.
During the 1990 regular legislative session, a supplemental appropriation bill, which was later designated as House Bill No. 4456, was introduced for the purpose of transferring approximately twenty million dollars from approximately sixty special revenue accounts to an account to benefit the DHS. On March 10, 1990, both houses of the legislature passed House Bill No. 4456 and the bill became law. Inclusive within the twenty million dollars designated to be transferred pursuant to House Bill No. 4456 was $450,000 from two Department of Agriculture special revenue accounts and $25,000 from a West Virginia Board of Osteopathy special revenue account. The appellees, the Commissioner of Agriculture and the West Virginia Board of Osteopathy, refused to transfer those monies designated by House Bill No. 4456 on various constitutional grounds.
On June 7, 1990, appellees filed a petition with the Circuit Court of Kanawha County seeking a rule to show cause why a writ of mandamus should not be issued to prohibit appellants from transferring money from the targeted special revenue accounts pursuant to House Bill No. 4456. The circuit court entered an order on June 7, 1990, which directed appellants to show cause why a preemptory writ of mandamus should not be awarded against them. On July 24, 1990, appellants filed a petition seeking a writ of mandamus for the purpose of instructing appellees to comply with the mandate of House Bill No. 4456. Following an evidentiary hearing which was held on July 24, 1990, and the submission of post-hearing memoranda from the parties, the circuit court issued a final order on October 17, 1990, wherein it determined that House Bill No. 4456 was unconstitutional and therefore denied the writ of mandamus sought by appellants. Based on this ruling, the circuit court determined that it was unnecessary to address appellees' request for a writ of mandamus. This appeal arises from the denial of the writ of mandamus sought by appellants.
The circuit court found that the legislature violated section 30 of article VI of the West Virginia Constitution through its enactment of House Bill No. 4456. That section of the state constitution provides in pertinent part:
No act hereafter passed, shall embrace more than one object, and that shall be expressed in the title. But if any object shall be embraced in an act which is not so expressed, the act shall be void only as to so much thereof, as shall not be so expressed,....
The circuit court based its conclusion that House Bill No. 4456 violated article VI, section 30 on incorrect reasoning. It determined that this Court in Dadisman v. Moore, 384 S.E.2d 816 (W.Va.1988), held that article VI, section 30 prevented the *110 legislature from expropriating funds from the Public Employees Retirement System during the fiscal year. However, that particular ruling in Dadisman was not predicated on article VI, section 30, but rather on our conclusion that the expropriation was in violation of West Virginia Code § 12-3-12 (Supp.1988) as then in effect.[1]
The objective of article VI, section 30 "is to prevent the concealment of the true purpose of any act from the public and the legislature and to advise the legislators and the public of the contents of the proposed act of the legislature." State ex rel. Davis v. Oakley, 156 W.Va. 154, 157, 191 S.E.2d 610, 612 (1972). House Bill No. 4456 clearly enunciated its purpose as a supplementary appropriations bill. Accordingly, we do not find a violation of article VI, section 30. Moreover, as this Court previously recognized in State ex rel. Key v. Bond, 94 W.Va. 255, 118 S.E. 276 (1923), the requirement that each act shall contain only one object is inapplicable to appropriation bills which are controlled instead by the budget amendment, article VI, section 51. See id. at 273, 118 S.E. at 284.
The importance of Dadisman to the case at bar is its recognition "that the Legislature cannot amend general substantive statutes with budgetary language." 384 S.E.2d at 825 and Syl. Pt. 13. The circuit court determined that:
House Bill No. 4456 violated the terms of substantive statutes through budgetary language in that supplemental appropriation bill in two respects: (a) by requiring money to be expropriated in violation of W.Va.Code § 12-2-2[(j)] [1991] which provides in part that all money collected in special revenue accounts `shall be carried in separate accounts to be used and expended only for the purposes for which the same are authorized to be collected by law'; and (b) by requiring money to be expropriated from numerous special revenue accounts created by substantive enactments that state the money is to be expended only for limited purposes.
Based on Dadisman, the circuit court ruled that the legislature "may not therefore amend or violate substantive statutes by passage of a supplemental appropriation bill such as House Bill No. 4456 which requires money to be spent and expropriated in a manner contrary to that already provided by statute."
Upon further consideration of the term "amend" as it was used in Dadisman, we note that such term does not properly or fully encompass what the legislature was doing in that case and in this case. Rather than seeking an outright or even an indirect amendment of the requirements of West Virginia Code § 12-2-2(j), the legislature, in actuality, was simply seeking to accomplish its goal in violation of that substantive law. We cannot view the legislature's actions in this case as an attempt to amend the substantive law of West Virginia Code § 12-2-2(j) because nothing in House Bill No. 4456 suggests that with respect to future appropriations from special revenue accounts the provisions of West Virginia Code § 12-2-2(j) have been annulled. While the effect of the legislature's action in both Dadisman and the case sub judice could arguably and creatively be viewed as an amendment, we think that it should be viewed more properly as a violation of a substantive statute. In view of this, we accept and affirm the circuit court's modification of Dadisman as prohibiting the legislature from amending or violating substantive statutes through the passage of a supplemental appropriations bill.
The passage of recent legislation demonstrates the proper procedure for expropriating excess funds from special revenue accounts. The following proviso was included in West Virginia Code § 21-11-17(a) (Supp.1991), which created a special revenue account entitled, the West Virginia Contractor Licensing Board Fund: "Amounts collected which are found from time to time to exceed the funds needed for purposes set forth in this article may be *111 transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature." Similar language was included in the bill which was enacted as West Virginia Code § 13-3-5a (Supp.1991). Absent language in the legislation creating special revenue accounts which expressly permits transfer and redesignation of funds for purposes other than those expressly provided, West Virginia Code § 12-2-2(j) imposes a restriction on the use of moneys collected and held in special revenue accounts. Accordingly, we agree with the circuit court's conclusion that House Bill No. 4456 violated West Virginia Code § 12-2-2(j) by requiring money to be expropriated from special revenue accounts in violation of the statutory directive that such moneys shall be expended only for those limited purposes for which they are authorized to be collected. We find this violation to be fatal with respect to that bill.
If the legislature wants to appropriate surplus funds from special revenue accounts, that body could enact an across-the board amendment which would permit appropriation of funds contained in special revenue accounts when there is a surplus. Barring this type of all-inclusive amendment, however, the legislature will have to amend specific statutes creating particular special revenue accounts to accomplish this same purpose.
The circuit court found further grounds for declaring House Bill No. 4456 unconstitutional by examining a portion of the modern budget amendment which is located in article VI, section 51(C)(7). That section provides, in pertinent part, that: "(b) each supplementary appropriation bill shall provide the revenue necessary to pay the appropriation thereby made by a tax, direct or indirect, ... unless it appears from such budget that there is sufficient revenue available." The circuit court's order represents that the parties agreed that House Bill No. 4456 does not enact tax revenues to fund the appropriation. The only relevant issue left then for the trial court to determine with respect to the above-quoted section of the modern budget amendment was whether "sufficient revenue [was] available."
Assuming, arguendo, that House Bill No. 4456 was not rendered unlawful based on its violation of the terms of West Virginia Code § 12-2-2(j), as discussed above, the existence of a surplus in the applicable special revenue accounts would have constituted the requisite "sufficient revenue." See W.Va. Const. art. VI, § 51(C)(7). The existence of such surplus is contested, and we do not determine whether in fact a surplus existed in the three special revenue accounts at issue here, only that the existence of a surplus would fulfill the constitutional requirement that sufficient revenue be available for all appropriations. We do wish to address, however, the circuit court's rejection of the "historical method analysis" as a means of projecting the existence of surplus in a special revenue account. This method, as its name suggests, involves an examination of past expenses over a specified period of time in conjunction with current revenues, actual and anticipated, to project whether a surplus can be expected with respect to a given fiscal year. The legislature utilized this method to identify which special revenue accounts could be included in House Bill No. 4456 based on projected surplus. Because it refused to recognize the "historical method analysis" as a proper means of projecting future surplus in the special revenue accounts designated by House Bill No. 4456, the circuit court determined that the bill was in violation of article VI, section 51(C)(7) of the state constitution.
We concur with appellants' reasoning that because the modern budget amendment does not define or limit in any way the method by which the existence of a surplus may be determined or, as in this case projected, the constitutional language at issue meets the requisite standard of ambiguity which in turn permits a court to look to custom and usage for construction purposes. See Robertson v. Hatcher, 148 W.Va. 239, 256, 135 S.E.2d 675, 686 (1964). Appellants represent that with regard to the past ten years, surplus revenues have been shifted from special revenue accounts *112 to other accounts on at least five occasions. Since the legislature has customarily shifted surplus funds from special revenue accounts through the use of historical averaging, there would not appear to be any prohibition against this mechanism for determining the existence of a surplus when a supplemental appropriation is sought before the end of the fiscal year.
We establish no guidelines regarding the number of budget years which must be utilized when calculating revenues by use of this historical averaging method, but do require that a sufficient period of time be analyzed to comport with the constitutional requirement of "sufficient revenue." We do suggest, however, that the legislature may want to consider enacting legislation which defines or further describes the term surplus and how the existence of a surplus may be determined. This would eliminate any constitutional objection on grounds of failure to establish "sufficient revenue," thereby avoiding unnecessary constitutional challenges to appropriations such as that at issue. See W.Va. Const. art. VI, § 51(C)(7). Once an across the board amendment to West Virginia Code § 12-2-2(j) is enacted or the statutes creating the respective special revenue accounts are amended to provide for the transfer and redesignation of funds collected and held in those accounts, then this practice of historical averaging could properly be used to project surplus funds with respect to those accounts. This practice could be used immediately with respect to those special revenue accounts which already expressly provide that revenues may be transferred and redesignated. See W.Va.Code §§ 21-11-17(a) and 13-3-5a.
We do not address any further grounds of unconstitutionality given the rulings set forth herein. We do state, however, that with regard to any transfers of funds from special revenue accounts other than those at issue in this case that were made pursuant to House Bill No. 4456, no challenge can now be made on the grounds of unconstitutionality because the fiscal year at issue has passed, and these funds will remain in the accounts to which they may have been transferred.
Based on the foregoing opinion, the decision of the Circuit Court of Kanawha County is hereby reversed in part and affirmed in part.
Reversed in part; Affirmed in part.
NOTES
[1] West Virginia Code § 12-3-12 was amended in 1989 to provide that "[t]he Legislature may expire or provide for the expiration of any appropriation prior to the end of the fiscal year for which it is made." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330681/ | 283 S.E.2d 101 (1981)
Pauline C. HANSEL
v.
SHERMAN TEXTILES
v.
TRAVELERS INSURANCE COMPANY.
No. 107.
Supreme Court of North Carolina.
October 6, 1981.
*104 Frederick R. Stann, Gastonia, for plaintiff-appellant.
Hollowell, Stott, Hollowell, Palmer & Windham by James C. Windham and Grady B. Scott, Gastonia, for defendant-appellee.
MEYER, Justice.
Pursuant to Rule 16 of the Rules of Appellate Procedure, review by the Supreme Court after a determination by the Court of Appeals, is to determine whether there is error of law in the decision of the Court of Appeals.
Even though the record in the case before us may support a finding that plaintiff did not contract an occupational disease as a result of exposure to cotton dust in her employment with the defendant, if, upon review, this Court finds that the decision of the full commission in its opinion and award is supported by competent evidence, we must conclude that there is error as a matter of law in the decision of the Court of Appeals.
Under the provisions of G.S. 97-86, the Industrial Commission is the fact finding body and the rule under the uniform decisions of this Court is that the findings of fact made by the Commission are conclusive on appeal, both before the Court of Appeals and in this Court, if supported by competent evidence. This is so even though there is evidence which would support a finding to the contrary. Inscoe v. Industries, Inc., 292 N.C. 210, 232 S.E.2d 449 (1977); Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963); Vause v. Equipment Co., 233 N.C. 88, 63 S.E.2d 173 (1951); 8 Strongs N.C. Index 3d, Master and Servant § 96, and cases there cited.
In passing upon an appeal from an award of the Industrial Commission, the reviewing court is limited in its inquiry to two questions of law, namely: (1) whether or not there was any competent evidence before the Commission to support its findings of fact; and (2) whether or not the findings of fact of the Commission justify its legal conclusions and decision.
Inscoe v. Industries, Inc., 292 N.C. 210, 216, 232 S.E.2d 449, 452 (1977); Henry v. Leather Co., 231 N.C. 477, 57 S.E.2d 760 (1950).
As demonstrated by the majority of the Court of Appeals, there was evidence before the Commission in this case which would have supported a finding that the plaintiff did not contract byssinosis as a result of her exposure to cotton dust in her employment with defendant. It is apparent upon review of the evidence in the record before us that there is substantial and convincing evidence that the plaintiff's symptoms could just as likely have been the result of her asthma and chronic bronchitis conditions as of byssinosis resulting from prolonged exposure to cotton dust. However, that is not the test. The test, as indicated above, is whether there is, in the record that was before the Court of Appeals and which is now before us, competent evidence which would support the Commission's finding that plaintiff contracted byssinosis as a result of her exposure to cotton dust in her employment with the defendant-employer.
*105 It is not the role of the Court of Appeals or of this Court to substitute its judgment for that of the finder of fact.
When the aggrieved party appeals to an appellate court from a decision of the Full Commission on the theory that the underlying findings of fact of the Full Commission are not supported by competent evidence, the appellate courts do not retry the facts. Moses v. Bartholomew, 238 N.C. 714, 78 S.E.2d 923 (1953). It is the duty of the appellate court to determine whether, in any reasonable view of the evidence before the Commission, it is sufficient to support the critical findings necessary for a compensation award. Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342 (1963).
Inscoe v. Industries, Inc., 292 N.C. 210, 217, 232 S.E.2d 449, 453 (1977).
In his dissent, Judge Wells examined the record and found substantial competent evidence to support the full Commission's findings and conclusions. We likewise find competent evidence to support the findings of the Commission, but we are unable to say that the findings justify the Commission's conclusion as to causation and its award. While the two-judge majority of the panel at the Court of Appeals failed to find sufficient evidence in the record before the Commission to support the opinion and award, and the dissenting judge reviewing the same record found ample evidence to support it, our comprehensive review of that same record leads us to an entirely different conclusion. We conclude that the medical evidence in the record is not sufficiently definite as to the cause of plaintiff's disability to permit effective appellate review.
For a disability to be compensable under our Workers' Compensation Act, it must be either the result of an accident arising out of and in the course of employment or an "occupational disease."
G.S. 97-52 provides in effect that disablement of an employee resulting from an "occupational disease" described in G.S. 97-53 shall be treated as the happening of an injury by accident. This section provides specifically:
The word `accident' ... shall not be construed to mean a series of events in employment of a similar or like nature occurring regularly, continuously ... whether such events may or may not be attributable to the fault of the employer and disease attributable to such causes shall be compensable only if culminating in an occupational disease mentioned in and compensable under this article. (Emphasis added).
G.S. 97-53 contains the comprehensive list of occupational diseases for which compensation is provided in the Act. By the express language of G.S. 97-53, only the diseases and conditions enumerated therein shall be deemed to be occupational diseases within the meaning of the Act.
Byssinosis is not "mentioned in and compensable under" the Act, except by virtue of G.S. 97-53, which provides in pertinent part as follows:
Section 97-53. Occupational diseases enumerated; ... the following diseases and conditions only shall be deemed to be occupational diseases within the meaning of this Article:
. . . . .
(13) Any disease ... which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.
In Booker v. Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979), Chief Justice Sharp exhaustively examined the true meaning of the term "occupational disease" as that term is used in our Workers' Compensation Act. It is unnecessary for us to repeat the results of that examination here. The clear language of G.S. 97-53 is that for any disease, other than those specifically named, to be deemed an "occupational disease" within the meaning of the Article, it must be "proven to be due to," causes and conditions as specified in that statute. This Court held in Booker that there are three *106 elements necessary to prove the existence of a compensable "occupational disease": (1) the disease must be characteristic of a trade or occupation, (2) the disease is not an ordinary disease of life to which the public is equally exposed outside of the employment, and (3) there must be proof of causation, i. e., proof of a causal connection between the disease and the employment. Id. at 468, 475, 256 S.E.2d at 196, 200.
With regard to the third element, this Court further said in Booker:
It is this limitation which protects our Workmen's Compensation Act from being converted into a general health and insurance benefit act. Bryan v. Church, 267 N.C. 111, 115, 147 S.E.2d 633, 635 (1966). In Duncan v. Charlotte, 234 N.C. 86, 91, 66 S.E.2d 22, 25 (1951) we held that the addition of G.S. 97-53 to the Act `in nowise relaxed the fundamental principle which requires proof of causal relation between injury and employment. And nonetheless [sic], since the adoption of the amendment, may an award for an occupational disease be sanctioned unless it be shown that the disease was incident to or the result of the particular employment in which the workman was engaged.'
297 N.C. at 475, 256 S.E.2d at 200.
In workers' compensation actions the rule of causation is that where the right to recover is based on injury by accident, the employment need not be the sole causative force to render an injury compensable.
[If the employee] by reason of constitutional infirmities is predisposed to sustain injuries while engaged in labor, nevertheless the leniency and humanity of the law permit him to recover compensation if the physical aspects of the employment contribute in some reasonable degree to bring about or intensify the condition which renders him susceptible to such accident and consequent injury.
Vause v. Equipment Co., 233 N.C. 88, 92, 63 S.E.2d 173, 176 (1951).
It has on occasion been implied that a similar rule of causation should prevail in cases where compensation for occupational disease is sought; however, if a disease is produced by some extrinsic or independent agency, it may not be imputed to the occupation or the employment. Duncan v. Charlotte, 234 N.C. 86, 66 S.E.2d 22 (1951); Moore v. Stevens & Co., 47 N.C.App. 744, 748, 269 S.E.2d 159, 162 (1980).
It is axiomatic that neither Mrs. Hansel's asthma nor her chronic bronchitis is an "occupational disease" which standing alone is compensable under the Workers' Compensation Act, nor does either party make such a contention. The questions of aggravation or acceleration of these diseases or infirmities was not considered by Deputy Commissioner Denson or the full Commission, nor was it addressed in the evidence. We believe that it should have been. In cases in which a claimant has other infirmities related solely to the lungs or respiratory system, the Commission should, as a matter of course, consider whether claimant's disablement (i. e. inability to work and earn wages) results from aggravation of those other non-occupational diseases or infirmities by causes and conditions peculiar to claimant's employment.
If there is no aggravation or acceleration, a disease or condition which is non-occupational in its incipience, is non-compensable as a matter of law notwithstanding the intervention of years of occupational exposure to hazardous conditions between the time the disease was contracted and the time it became disabling. If however a disease or condition which is non-occupational in its incipience is in fact aggravated or accelerated by causes and conditions peculiar to the claimant's employment, disability resulting therefrom is compensable.
As indicated in Booker, a claimant's right to compensation for an occupational disease under G.S. 97-53(13) and G.S. 97-52 depends upon proper proof of causation, and the burden of proving each and every element of compensability is upon the plaintiff. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965); Aylor v. Barnes, 242 N.C. 223, 87 S.E.2d 269 (1955). It is true that, where the Commission awards compensation for disablement *107 due to an occupational disease encompassed by G.S. 97-53(13), the opinion and award must contain findings as to the characteristics, symptoms and manifestations of the disease from which the plaintiff suffers, as well as a conclusion of law as to whether the disease falls within the statutory provision. Wood v. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979). However, such findings should not be necessary upon the Commission's finding that the disease, whatever its manifestations and whatever its symptoms, was not due to causes or conditions characteristic of the particular employment in which the employee was engaged. The denial of compensation may be predicated upon the failure of the claimant to prove any one of the elements of compensability. See, Moore v. Stevens & Co., 47 N.C.App. 744, 269 S.E.2d 159 (1980), pet. for disc. rev. denied, 301 N.C. 401, 274 S.E.2d 226 (1980).
In the case before us in which the Commission made an award of compensation, there was not sufficient determination by the finders of fact, and certainly no explicit findings, upon which this Court can determine the sufficiency of the evidence to support the Commission's findings and conclusion. It is explicitly stated in the Commission's finding number 5 that plaintiff's byssinosis "is partly responsible for her disability" and thus implicit that some other disease or infirmity is likewise "partly responsible for her disability." The evidence indicates that the other disease or infirmity is probably asthma and chronic bronchitis, although plaintiff also testified that two other doctors told her previously that she had emphysema. It also appears from the evidence that she is apparently also allergic to, among other things, dust, mold, mildew, trees, grass, animals, feathers, cotton dust, nylon dust and polyester dust. Because of the presence of these other infirmities and because this is a case of partial disability as opposed to one of total disability, it must be determined what percentage of claimant's disability is due to her occupational disease. Morrison v. Burlington Industries, ___ N.C. ___, 282 S.E.2d 458 (1981).
The medical evidence appearing in the record before this Court is not sufficiently definite on the cause of plaintiff's disability to permit effective appellate review. The only medical witness before the Commission, Dr. Harris, did not address the crucial medical question of interrelationship, if any, between plaintiff's occupational disease and her disability.
We deem it unnecessary to recite or recapitulate the evidence which is fairly summarized in the opinion and dissent in the Court of Appeals. However, solely for the purpose of illustrating the problems in assessing the medical evidence before us on causation, we will set forth only a part of plaintiff's evidence as it relates to the element of causation. Dr. T. Reginald Harris testified in part:
She has an illness. In general terms, I thought it fitted the pattern of chronic obstructive lung disease .... She has three distinct syndromes that probably contributes (sic) to that impairment. These are asthma, byssinosis and chronic bronchitis.
....
If she did not work in cotton, I would not have any diagnosis of byssinosis.
....
There is a possibility that she has byssinosis and she certainly could have.... The answer is yes, could or might.
Q. ... Do you have an opinion satisfactory to yourself to a reasonable degree of medical certainty that the condition suffered by Pauline Hansel could or might be byssinosis? ...
A. My answer is yes, it could or might be byssinosis.
....
A. To amplify, I have difficulty in this patient for several reasons, to answer so specific a question. One of the difficulties, I'm not really aware of how much cotton dust exposure this lady was involved. Your hypothetical question assumed considerable amounts of cotton dust exposure. That's why the history obtained by me is not specific enough for me to be able to evaluate over her employment, *108 and the other problem she worked in the weaving department where there is much less dust than some of the other departments. If there was a lot of other fibers in the cotton in that department, there would be less exposure. That is one factor that would tend to add weight or less weight to consider the diagnosis. And the major difficulty is the diagnosis of asthma. I believe this lady has asthma and every person with asthma will react to cotton dust. If they have severe asthma they are not able to stay there. The milder cases, they can work in less dusty areas of the plant. So the diagnosis is more complex because this lady could have many of these same symptoms whether she worked around cotton dust because of the present asthma. She also has a history of chronic bronchitis symptoms of coughing day and night. Probably one of the major facts in her case is cigarette smoking as recorded by me. Could or might is true. I think that the possibility exists that both of the conditions are certainly present. It would be less complicated if she didn't have other problems, but she does have.
....
Yes sir, I did say I had some difficulty in arriving at a diagnosis in this case due to the other conditions that I found that existed in this lady. I suspect the biggest difficulty was the history of asthma because the presence of asthma would lead you to anticipate as individuals would react with symptoms when they go to a textile plant. Because asthmatics react to all manners of dust. I said the symptoms of coughing, tightness of the chest could result or could be caused by the asthmatic condition rather than the breathing of dust. Yes, in the history that she gave me, she stated that she had a cough, or a dry hacking cough, as much as 30 years ago.
....
That fact that she had chronic bronchitis since 1948 or 1950 indicated to me that she had chronic lung disease and probably chronic bronchitis, that is a proper term for that, as long as that period of time. Let me tell you what my opinion was at the time of my examination and history and I think still is. This lady has chronic bronchitis and this lady likely and probably has asthma. There is a possibility that she could have a reaction known as byssinosis syndrome, but I am not able to determine the extent of that condition nor add much weight to its presence, because I do not have the ability to separate out any specific symptoms related to byssinosis that this lady has that cannot be explained by the other two conditions that are present. It is more difficult, also, because I do not know what her work exposure, history to cotton dust, is here.
....
It's true, that the asthmatic condition and the other, chronic bronchitis, could be the cause of this lady's condition that I found upon examination, as well as the other findings, the syndrome findings that I made.
....
People who have byssinosis for many years, have a lung disease that is indistinguishable from chronic bronchitis.
The following is excerpted from Dr. Harris's medical report of his examination of Mrs. Hansel on 10 August 1978 which was admitted into evidence as Exhibit "A":
Comment:
This patient has a lengthy history of obstructive pulmonary disease. She is a cigarette smoker and has had considerable textile work exposure. I do not have information which describes her dust exposure over the years. She has had considerable exposure to textile environment but this has been in the weaving department where traditionally, there has been less dust than in the earlier stages of processing cotton in a textile plant. This patient has a history suggesting chronic bronchitis with cough and sputum production. She also has a history of increased symptoms upon work exposure and has a typical history of increased symptoms on the first day of the work *109 week after a work absence. The history she gives is similar to that of patients with byssinosis and patients with chronic bronchitis. The picture is somewhat complicated by a history suggesting asthma and allergy in the past and by the history of vocal cord abnormalities.
....
On the basis of the information available to me, this patient may well have three identifiable problems causing lung disease. She has a history compatible with and suggesting asthma. She is believed to have chronic bronchitis and to have byssinosis. The later diagnosis is made on the basis of chronic obstructive lung disease in a patient with a typical work history of byssinosis and presumably has had exposure to cotton textile dust over long enough time to permit development of this syndrome. It is true, however, that patients with asthma also react to cotton dust and have increased symptoms upon exposuresimilar to those with the syndrome of byssinosis. Cigarette smoking is certainly a major contributing factor to chronic bronchitis. It is not possible to quantitate the relative contribution of the various etiological factors in her present respiratory impairment. It is likely that all are involved to some extent. It is this examiners belief that the patient probably has asthma and that she does have chronic bronchitis as well as byssinosis.
....
Diagnostic Conclusion:
1) Chronic Obstruction air ways disease. Asthma, probable. Byssinosis syndrome. Chronic bronchitis.
In order for the Court to determine whether the Commission's findings and conclusions are supported by competent evidence, the record before us must be supplemented by medical testimony to indicate answers to the following questions:
(1) Is plaintiff totally or partially incapacitated to work and earn wages? If partial, to what extent is she disabled; i. e., what is the percentage of her disability?
(2) What disease or diseases caused this disability?
(3) Which of the plaintiff's disabling diseases are occupational in origin, i. e., which diseases are due to causes and conditions which are characteristic of and peculiar to plaintiff's occupation as distinguished from ordinary diseases of life to which the general public is equally exposed outside of the employment?
(4) Does plaintiff suffer from a disabling disease or infirmity which is not occupational in origin, i. e., which is not due to causes and conditions characteristic of and peculiar to plaintiff's occupation as distinguished from ordinary diseases of life to which the general public is equally exposed outside of the employment?
If so, specify the non-occupational disease(s) or infirmities?
(5) Was plaintiff's non-occupational disease(s) or infirmity aggravated or accelerated by her occupational disease(s)?
(6) What percentage of plaintiff's incapacity to work and earn wages results from (a) her occupational disease(s) or (b) her non-occupational disease(s) which were aggravated or accelerated by her occupational disease(s)?
(7) What percentage of plaintiff's incapacity to work and earn wages results from diseases or infirmities which are non-occupational in origin?
We conclude that the Court of Appeals acted prematurely in vacating the award of the full Commission. In our discretion, we remand for further findings of fact.
The Industrial Commission must make specific findings of fact as to each material fact upon which the rights of the parties in a case involving a claim for compensation depend. Wood v. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979); Thomason v. Cab Co., 235 N.C. 602, 70 S.E.2d 706 (1952). If the findings of fact of the Commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the cause must be remanded to the Commission for proper *110 findings of fact. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797 (1948); Moore v. Stevens & Co., 47 N.C.App. 744, 749, 269 S.E.2d 159, 162 (1980); Gaines v. Swain & Son, Inc., 33 N.C.App. 575, 235 S.E.2d 856 (1977). See also 1 Strong's N.C. Index 3d, Appeal and Error § 57.3.
Since we cannot evaluate the testimony quoted above and correctly determine whether the findings made by the Commission are supported by the evidence, this case must be remanded to the Commission to re-examine the medical witnesses to elicit definite answers to the questions noted above. Upon the hearing on remand, the parties are not prohibited from offering additional evidence. After re-examination of the medical witnesses, the Commission will make findings of fact, enter its conclusions of law and issue its opinion and award based thereon.
For the reasons stated, the decision of the Court of Appeals is reversed and the case is remanded to the Court of Appeals with directions that it be remanded to the North Carolina Industrial Commission for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
EXUM, Justice, concurring in result.
I concur in the majority's decision to remand this case to the Industrial Commission for further proceedings. Since I disagree with much of the majority's reasoning, I deem it necessary to set out my own views of the case.
First, I disagree with the majority's apparent notions that Hansel's occupational disease is simply byssinosis and that she is limited on remand to showing only that her exposure to cotton dust medically aggravated her bronchitis or asthma in order to recover for whatever incapacity for work was caused by the combined effect of all of her pulmonary problems.
As I understand the medical testimony, Hansel actually suffers from chronic obstructive pulmonary, or lung, disease to which several etiological factors could have contributed, i. e., cigarette smoking, bronchitis, asthma, and cotton dust exposure. Dr. Harris testified that Mrs. Hansel "has an illness. In general terms, I thought it fitted the pattern of chronic obstructive lung disease .... She has three distinct syndromes that probably contributes [sic] to that impairment. These are asthma, byssinosis, and chronic bronchitis." Later Dr. Harris also identified cigarette smoking as a possible contributing factor.
In addition to this case, we have considered three other so-called "byssinosis" cases. Morrison v. Burlington Industries, ___ N.C. ___, 282 S.E.2d 458 (1981); Walston v. Burlington Industries, (No. 116, Fall Term 1981); and Wood v. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979). The medical etiology of the disease was the primary focus of all the cases except Wood.
Although Morrison claimed benefits for "an occupational disease, to wit: byssinosis... caused by exposure to cotton dust," the medical testimony, the Commission's findings, and this Court identified her occupational disease as chronic obstructive lung disease. Morrison also suffered from bronchitis, was a cigarette smoker, and could have had emphysema. The Commission found ultimately, however, that her chronic obstructive lung disease was caused at least in part by her cotton dust exposure, a finding which this Court concluded was supported by the evidence.
Walston also claimed benefits for "byssinosis... caused by exposure to cotton dust." The medical testimony again, however, referred to the cause of Walston's incapacity for work as "pulmonary disease" and "pulmonary problems." The medical testimony identified the components of his pulmonary disease as "chronic bronchitis, pulmonary emphysema, [and] possible byssinosis." Dr. Mabe testified, "It is correct as a matter of terminology, to regard the term `chronic obstructive lung disease' as broader in its complications than, say, fibrosis, which can be a localized situation, or emphysema, which can only be general. Chronic obstructive lung disease is the broadest of these terms. It will take them *111 all in. That encompasses all of them in the chronic bronchitis or segmental pulmonary fibrosis."
It is clear from the medical testimony in Morrison, Walston and this case, and from medical literature on the subject[1] that the term "byssinosis" refers simply to the effect, if any, of a worker's exposure to cotton dust on the worker's overall pulmonary function. The disease, however, which ultimately causes a worker to be incapacitated for work is consistently referred to by the medical witnesses in these cases as chronic obstructive lung disease.[2] This disease in its ultimate disabling form may have several components such as bronchitis, asthma, emphysema, and byssinosis. It may, in turn, be caused by one or more environmental factors such as cotton dust exposure or cigarette smoking, or both. The crucial difference between byssinosis, or the effect of cotton dust exposure on the lungs, and other conditions caused by industrial exposures, such as silicosis and asbestosis, is this: The effects of cotton dust exposure (byssinosis) are indistinguishable from the effects of other kinds of lung problems such as bronchitis, or the effects of cigarette smoking; whereas the effects of silicosis and asbestosis are identifiable by biopsy or on autopsy.[3]
Hansel's claim, therefore, like those of Morrison and Walston, is for the incapacitating effects, if any, of her chronic obstructive lung disease. In this case, therefore, as others in which the worker claims benefits for incapacity to work caused by chronic obstructive pulmonary disease, the central factual inquiry should be first, whether the effects on the pulmonary function caused by cotton dust exposure (byssinosis) significantly contributed to the ultimate medical problem, i. e., chronic obstructive lung disease and second, whether and *112 to what extent the chronic obstructive lung disease caused incapacity for work.
I further disagree with the majority's position that questions three and four can be answered by medical witnesses, for these questions are really conclusions of law to be made by the Commission after it determines certain preliminary factual questions. Whether a particular disease is an occupational disease is ultimately a question of law, for it requires the application of the legal standards set out in G.S. 97-53(13) to the facts. In an occupational disease claim, "[h]aving made appropriate findings of fact, the next question the Commission must answer is whether ... the illness plaintiff has contracted falls within the definition set out in the statute. This latter judgment requires a conclusion of law." Wood v. Stevens & Co., supra, 297 N.C. at 640, 256 S.E.2d at 695-96.
For a disease to be occupational and therefore compensable under G.S. 97-53(13) "two conditions must be met: (1) It must be `proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment'; and (2) It cannot be an `ordinary disease of life to which the general public is equally exposed outside of the employment.'" Booker v. Medical Center, 297 N.C. 458, 468, 256 S.E.2d 189, 196 (1979). If there is a greater risk of contracting the disease by workers in a given occupation because of conditions "characteristic of and peculiar" to the occupation, the "nexus between the disease and the employment which" makes the disease occupational and therefore compensable is provided and the second condition set out above is satisfied. Id. at 475, 256 S.E.2d at 200.[4] The statute thus insures by its terms that a disease, in order to be compensable, must have the requisite causal connection to the occupation out of which it allegedly arose.
As the majority correctly notes, however, it is not necessary that the occupational "causes and conditions" be the sole cause of the disease. It is enough if these occupational "causes and conditions" are factors which significantly contribute to the development of the disease.[5] If occupational "causes and conditions" as defined by G.S. 97-53(13) significantly contribute to a disease's development, and if the disease itself is not one to which the general public is exposed equally with those engaged in the employment in question, the disease is an occupational disease even though non-occupational causes and conditions also contribute to it. Conversely, a disease is not an occupational disease if the occupational causes and conditions do not contribute to its development in a significant way.
Whether the contribution of occupational "causes and conditions" has been significant or insignificant must largely be determined by evidence relating to the extent and nature of the exposure to the occupational conditions and expert medical opinion relating to the significance of this exposure in light of other factors which may also have contributed to the disease's development. Significant means, "having or likely to have influence or effect: deserving to be considered: IMPORTANT, WEIGHTY, NOTABLE." Webster's Third New International Dictionary 2116 (Merriam-Webster 1971). "Significant" as we are using it is to be contrasted with "negligible," "unimportant," "present but not worthy of note," "miniscule," "of little moment." The word *113 has reference not so much to the quantity, in terms of percentage of contribution made by occupational exposure, but more to the quality of its contribution. The factual inquiry, in other words, should be whether the occupational exposure was such a significant factor in the disease's development that without it the disease would either (1) not have developed or (2) not have developed to such an extent that it results in the incapacity for work for which the worker claims benefits.
To say that occupational causes and conditions must be the sole cause of a disease before it can be considered occupational and therefore compensable is too harsh a principle from the standpoint of the purposes and policies of our Workers' Compensation Act. This Act "should be liberally construed so that the benefits under the Act will not be denied by narrow, technical or strict interpretation." Stevenson v. City of Durham, 281 N.C. 300, 303, 188 S.E.2d 281, 283 (1972).
To say on the other hand that if occupational causes and conditions contribute to the slightest extent, however miniscule or insignificant, to the etiology of a disease, the causation requirement is satisfied places too heavy a burden on industry and tends to compromise the valid principle that our Workers' Compensation Act should not be transformed into a general accident and health insurance law.
Neither should a disease to which occupational conditions have significantly but not entirely contributed be considered as some kind of pro tanto occupational disease in which an award is made not for the incapacity for work actually caused by the disease but only for so much of such incapacity as corresponds mathematically to the extent of contribution of the occupational conditions. First, the cases in which the point has been considered do not support this view. They either support the significant contribution principle or some less rigorous principle from the worker's standpoint.[6] Second, G.S. 97-52 provides that "[d]isablement or death ... resulting from an occupational disease described in G.S. 97-53 shall be treated as the happening of an injury by accident within the meaning of the North Carolina Workers' Compensation Act ...." (Emphasis supplied.) General Statute 97-53(13) provides a generic definition of diseases which may be considered occupational. I believe our legislature intended that a disease either be an occupational disease or that it not be. If it is an occupational disease it is treated like an industrial accident. There is no suggestion in the statutes that a worker could have an occupational disease pro tanto, i. e., only to the extent of the contribution of an occupational condition. Third, as I point out below, and as cases from other jurisdictions demonstrate,[7] some of these diseases which have dual or multiple causes such as chronic obstructive lung disease, present difficult medical questions regarding the extent to which various causative factors respectively contributed. We ask too much of the medical profession if we require it to assess in terms of mathematical percentages the relative contributions of the various possible causes of such diseases.[8] At most the physicians *114 should be asked to determine only whether the occupational conditions, such as cotton dust exposure, were or were not in the particular case a significantly contributing factor in the disease's etiology.
Thus in addressing this industrial disease claim I would require the Commission to consider and resolve several crucial factual issues. The first is whether the employee has a disease and, if so, what is it. "The Commission must determine first the nature of the disease from which the plaintiff is sufferingthat is, its characteristics, symptoms and manifestations." Wood v. Stevens & Co., supra, 297 N.C. at 640, 256 S.E.2d at 695. Second, the Commission must determine whether any causes and conditions `characteristic of and peculiar to' the occupation in question significantly contributed to, or were significant causative factors in, the disease's development. Finally, the Commission must determine whether the disease is an ordinary disease of life to which the general public is exposed in the same degree as the worker in question or, in other words, whether the worker is, because of his occupation, exposed to a greater risk of contracting the disease than members of the public generally.
If all of these crucial factual issues are answered favorably to the worker, then the Commission must conclude as a matter of law that the worker has an occupational disease. If any one of them, however, are answered unfavorably to the worker, then the Commission must conclude as a matter of law that there is no occupational disease.
I recognize that we are dealing with a relatively new occupational disease statute which reasonably has been the source of some confusion regarding occupational disease law in this state. This confusion is compounded by the medical complexities involved in chronic lung disease cases. "The causes and development of byssinosis, and the structural and functional changes produced by the disease, are still the subject of scientific debate." Wood v. Stevens & Co., supra, 297 N.C. at 641, 256 S.E.2d at 696. A recent carefully controlled study cited in Wood concluded, however, that although the "pathology of the chronic lung disease of textile workers remains unclear," textile workers, "not only ... carders and spinners... but also ... yarn preparers and weavers..." suffer from "an excess of chronic lung disease" and it "is almost certain" that this excess "is caused by dust exposure of the workers in the mills."[9]
In view, therefore, of the legal and medical complexities involved, we should remand this matter to the Commission for the taking of further evidence and a new determination of whether Hansel has an occupational disease. I believe there is enough evidence already adduced to indicate that Hansel may be able to prove that her cotton dust exposure significantly contributed to her ultimate chronic obstructive lung disease and that it was this lung disease which ultimately caused her to be incapacitated for work, either partially or totally. I, however, would direct the Commission to proceed in accordance with the principles to which I have referred in this concurring opinion rather than those announced by the majority.
CARLTON, J., joins in this concurring opinion.
NOTES
[1] See generally Bouhuys, Schoenberg, Beck and Schilling, Epidemiology of Chronic Lung Disease in a Cotton Mill Community, 5 Traumatic Medicine and Surgery for the Attorney 607, reprinted from LungAn International Journal on Lungs, Airways, and Breathing, 154(3): 167-186 (1977). The article concludes with the following paragraph:
"There is continuing discussion about the definition of the term `byssinosis,' and confusion about the presumed co-existence of chronic bronchitis and of byssinosis among textile workers. To a large extent this debate is one of semantics. Cotton and other textile workers are at risk of acute as well as chronic respiratory symptoms and lung function loss. There can be little doubt that both are caused by exposure to respirable dust in textile mills. The progression from repeated acute insults to the chronic disease has not been traced with certainty, but there is no good evidence againstand much evidence forsuch a train of events. It seems most logical to define byssinosis as a dust-induced disease with initial acute responses followed by a stage of chronic lung disease characterized by chronic airway obstruction. This definition is implicit in the description of the clinical stages of byssinosis given by Schilling. For purposes of compensation and prevention, acute responses to textile dust as well as chronic airway obstruction in textile workers should be considered as two stages of one disease syndrome, byssinosis."
[2] This is also the term used throughout the Bouhuys article to describe the disabling condition in its ultimate form. Id.
[3] In Walston, for example, Dr. Williams testified, "There is not specifically any objective finding to say that a man does or doesn't have byssinosis ... such as a biopsy or autopsy, such as with silicosis and asbestosis, although in the early stages one can demonstrate a reactivity to the dust by doing pulmonary function studies before and after six hours exposure to the work environment. But in the latter stages, such as one might see with chronic obstructive pulmonary disease, this is no longer valid and these are not specific diagnostic criteria."
In Morrison, Dr. Sieker testified that there were "two identifiable etiological factors" which contributed to Morrison's chronic obstructive lung disease. "One is cotton dust exposure, the other is her cigarette consumption." He said, "[I]n a somewhat arbitrary way but with clinical judgment I assign the etiological factors about 50 percent50 to 60 percent for the cotton dust exposure and 40-50 percent for the cigarette smoking and any attendant problems with that.... At the present time there is no laboratory type of test that would do this. This [assignment of etiological factors] had to be based on ... one's judgment of the effects of these agents on the respiratory system."
In the present case Dr. Harris testified that the effects of byssinosis were "indistinguishable from chronic bronchitis."
[4] The disease need not be one which originates exclusively from or is unique to the particular occupation in question. Booker v. Medical Center, supra. Nor is the fact that the disease is an ordinary disease of life to which members of the general public also succumb fatal to an occupational disease claim if the "greater risk" nexus is present; for in such cases the public is not exposed to the disease equally with those engaged in the particular employment in question. Id. Thus ordinary diseases of life such as serum hepatitis, tuberculosis and contact dermatitis may be occupational diseases provided that the employee because of his employment has a greater risk of contracting them than does the public generally. Id., and cases cited therein.
[5] For a full discussion of the significant contribution concept and the authorities upon which it is based see Morrison v. Burlington Industries, ___ N.C. ___, 282 S.E.2d 458 (1981) (Exum, J., dissenting).
[6] These cases are collected in my dissent in Morrison v. Burlington Industries, supra.
[7] These cases are collected in my dissent in Morrison v. Burlington Industries, supra.
[8] Dr. Harris, for example, testified, "I do not have the ability to separate out any specific symptoms related to byssinosis that this lady has that cannot be explained by the other two conditions that are present." In his medical report he stated, "It is not possible to quantitate the relative contribution of the various etiological factors in her present respiratory impairment. It is likely that all are involved to some extent." In Walston v. Burlington Industries, supra, Dr. Williams was unable to testify regarding the relative contributions to Walston's lung disease made, respectively, by his exposure to cotton dust and his cigarette smoking. He said, "I find it very difficult to answer the question as to ... what percentage would the cotton dust exposure represent to the pulmonary condition. On the one hand, we have had the opportunity to treat hundreds of patients with this same type of syndrome and findings, in which case it is almost certain the primary etiological agent was cigarette smoking, and this fellow was a smoker. On the other hand, there are figures beginning to emerge to show that it is possible for workers exposed to cotton dust to develop chronic obstructive lung disease even in some instances in non-smokers even though the incident is definitely greater in smokers which accounts for the reason I said it might be a contributory factor, but this is about as close as I can come. I cannot give a percentage. I don't have an opinion on a specific percentage."
Although in Morrison, Dr. Sieker did testify to the relative contribution of cigarette smoking and cotton dust exposure in terms of percentages, he conceded that this assessment was made "in a somewhat arbitrary way but with clinical judgment ... there is no laboratory ... test that would do this ...."
[9] Bouhuys, Schoenberg, Beck and Schilling, op. cit., supra n. 1. See also 1B Larson, supra, § 41.64(b), n. 83.1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330627/ | 605 S.E.2d 33 (2004)
269 Ga. App. 431
BABB
v.
PUTNAM COUNTY.
No. A04A1763.
Court of Appeals of Georgia.
August 9, 2004.
Reconsideration Denied September 2, 2004.
Adams & Ford, Francis N. Ford, Eatonton, for appellant.
Christopher D. Huskins, Donald W. Huskins, Eatonton, for Appellee.
BLACKBURN, Presiding Judge.
After being enjoined from keeping a camper and operating a nonapproved sewage system on his property abutting Lake Sinclair pursuant to Putnam County zoning ordinances, George F. Babb, Jr. appeals, contending, among other things, that the trial court erred by: (1) concluding that the use of his land violated such ordinances; (2) failing to afford him adequate notice and an opportunity to be heard; and (3) making improper findings of fact and conclusions of law. As this matter has now become moot, we must dismiss this appeal.
The record shows that Putnam County filed suit against Babb seeking to enjoin him from keeping a camper on his property and from using a certain nonconforming sewage system. Putnam County contended that these uses violated certain county ordinances applicable to the property. After hearing the matter, on March 1, 2004, the trial court granted Putnam County's request for an injunction and ordered Babb to remove his camper and cease use of the sewage system. On that same date, the trial court denied Babb's request for supersedeas, a ruling which Babb did not appeal. Thereafter, Babb complied with the injunction, removing the camper and ceasing use of the sewage system by at least April 7, 2004.
It is a rather fundamental rule of both equitable jurisprudence and appellate procedure, that if the thing sought to be enjoined in fact takes place, the grant or denial of the injunction becomes moot. To prevent such an appeal from becoming moot the appealing party must obtain a supersedeas. Board of Commrs. of Richmond County v. Cooper.[1] See also OCGA § 9-11-62(a) (unless otherwise ordered by the court, final judgment in an action for an injunction shall not be stayed during pendency of an appeal). Accord Citizens to Save Paulding County v. City of Atlanta;[2]Padgett v. Cowart.[3]
*34 Jackson v. Bibb County School Dist.[4]
As Babb has now complied with the injunction and he did not obtain a grant of supersedeas, this appeal has been rendered moot. Id. As such, we are required to dismiss this appeal.
Appeal dismissed.
BARNES and MIKELL, JJ., concur.
NOTES
[1] Board of Commrs. of Richmond County v. Cooper, 259 Ga. 785, 387 S.E.2d 138 (1990).
[2] Citizens to Save Paulding County v. City of Atlanta, 236 Ga. 125, 223 S.E.2d 101 (1976).
[3] Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974).
[4] Jackson v. Bibb County School District, 271 Ga. 18, 19, 515 S.E.2d 151 (1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330648/ | 283 S.E.2d 543 (1981)
STATE of North Carolina
v.
Thomas E. ROWLAND.
No. 819SC388.
Court of Appeals of North Carolina.
November 3, 1981.
*544 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Richard L. Kucharski, Raleigh, for the State.
Ramsey, Hubbard & Galloway by Mark E. Galloway and Burke & King by Ronnie P. King, Roxboro, for defendant-appellant.
*545 HEDRICK, Judge.
Defendant assigns as error the court's failure to grant his timely motions as of nonsuit. G.S. § 14-33 in pertinent part provides:
(b) Unless his conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a misdemeanor punishable by a fine, imprisonment for not more than two years, or both such fine and imprisonment if, in the course of the assault, assault and battery, or affray, he:
. . . . .
(4) Assaults a law-enforcement officer... while the officer ... is discharging or attempting to discharge a duty of his office.
The evidence is clearly sufficient to require submission of the case to the jury on the charge that defendant violated G.S. § 14-33(b)(4). The State offered evidence tending to show that W. C. Chandler was a law enforcement officer, that he identified himself as such to defendant, that he was in the performance of his duty as an officer, and that defendant assaulted him by hitting him in the face.
Defendant's fifth assignment of error has no merit.
By his fourth assignment of error, the defendant contends the court erred in not submitting to the jury as a possible verdict the lesser included offense of simple assault. It is well settled in this State that when a defendant is indicted for a criminal offense he may be convicted of the offense charged or of a lesser included offense when the greater offense in the bill includes all the essential elements of the lesser offense. State v. Snead, 295 N.C. 615, 247 S.E.2d 893 (1978). Further,
[w]hen there is conflicting evidence of the essential elements of the greater crime and evidence of a lesser included offense, the trial judge must instruct on the lesser included offense even where there is no specific request for such instruction. An error in this respect will not be cured by a verdict finding a defendant guilty of the greater crime.
State v. Brown, 300 N.C. 41, 50, 265 S.E.2d 191, 197 (1980) [Emphasis added.]
In the present case, the charge set out in the warrant embodies the lesser included offense of simple assault. Each element of simple assault is included in the charge of assaulting an officer in the performance of his duty, G.S. § 14-33(b)(4). In State v. Mayberry, 38 N.C.App. 509, 248 S.E.2d 402 (1978), this Court discussed whether the trial court erred in not instructing the jury on the lesser included offense of assault when defendant had been charged with assault with a firearm upon a law enforcement officer. The Court there stated:
The State's uncontroverted evidence in this case tended to show that the defendant pointed a shotgun in the direction of the Sheriff and was weaving back and forth.... The uncontroverted evidence of the State also indicated that the Sheriff was in the performance of his duties of investigating the alleged crime of assault with intent to commit rape. The State's evidence also indicated that the defendant had been previously arrested by the Sheriff and, therefore, knew he was a law enforcement officer....
No evidence before the trial court tended to indicate that the defendant did not know that the Sheriff was a law enforcement officer or that he was acting in the performance of his duties. No evidence of a lesser included offense having been presented, the trial court correctly declined to instruct the jury with regard to any lesser included offense.
State v. Mayberry, supra at 512, 248 S.E.2d at 404.
In the present case, there is plenary evidence from the defendant that he did not know that Chandler was a law enforcement officer, that the officer was not in uniform and had about him no indicia of official authority, that defendant repeatedly requested identification from Chandler but was not shown any, and that Chandler actually struck defendant about the head before defendant struck him.
*546 In order to obtain a conviction under G.S. § 14-33(b)(4), the burden is on the State to satisfy the jury from the evidence and beyond a reasonable doubt that the party assaulted was a law enforcement officer performing the duty of his office, and that the defendant knew his victim was a law enforcement officer. See State v. Atwood, 290 N.C. 266, 273-76, 225 S.E.2d 543, 547-48 (1976) (Exum, J., concurring) and State v. Powell, 141 N.C. 780, 53 S.E. 515 (1906). Therefore, since there was conflicting evidence in the record as to whether the defendant knew Chandler was a law enforcement officer, it was the duty of the trial judge to submit to the jury the possible verdict of simple assault.
New trial.
CLARK and HARRY C. MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330625/ | 361 S.C. 372 (2004)
605 S.E.2d 522
The STATE, Respondent,
v.
Reyes CABRERA-PENA, Petitioner.
No. 25893.
Supreme Court of South Carolina.
Heard February 3, 2004.
Decided November 8, 2004.
*374 Assistant Appellate Defender Robert M. Dudek, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.
Acting Justice MACAULAY.
The Court granted a writ of certiorari to review the Court of Appeals' opinion in State v. Cabrera-Pena, 350 S.C. 517, 567 S.E.2d 472 (Ct.App.2002). We affirm in result.
FACTS
On June 30, 1999, Reyes Cabrera-Pena (Cabrera-Pena) went to an Applebee's restaurant in Spartanburg where his estranged wife Alma was dining with three of her friends and the couples' two-year-old daughter, Melissa. According to the only direct evidence, the testimony of Alma's friends, Cabrera-Pena and Alma went outside and argued briefly; Cabrera-Pena then left.
After he left the restaurant, Cabrera-Pena purchased a gun for $30.00. He then went back to the restaurant and sat in his van in the parking lot, waiting for Alma to come out. As Alma and her friends left the restaurant around midnight, they spotted Cabrera-Pena's van in the parking lot; Cabrera-Pena flashed his lights and Alma walked toward his van. After speaking to him for several minutes, Alma began walking towards her friends' pickup truck, followed by Cabrera-Pena. She motioned to her friends that he had a gun. Cabrera-Pena told the group that he was taking Melissa and Alma with him. Alma refused to go and Cabrera-Pena pulled the gun and pointed it at her as she held Melissa on her hip. Alma put her hand on his wrist and pushed the gun down. Cabrera-Pena lifted the gun and pointed it at her head. As Alma backed away, still holding her child, Cabrera-Pena shot her in the right eye. Both Alma and Melissa fell to the ground. Cabrera-Pena pointed the weapon at each of Alma's three friends, but then threw the gun over a fence, ran back to his *375 van and drove away. Cabrera-Pena was arrested a short time later.
After his arrest, Cabrera-Pena was taken to an interview where two detectives, Officer Morrow and Officer Taylor, initially questioned him. When it became apparent that Cabrera-Pena was not fluent in English, they called in Officer Tony Membreno, who was fluent in Spanish to assist them in questioning Cabrera-Pena. At trial, Officer Membreno testified that, after reading him his rights, Cabrera-Pena blurted out, "I'm guilty. I fully accept everything that had happened and I'm responsible for it." Membreno then began referring to his notes from the interview. According to Membreno, Cabrera-Pena told him that when he left Applebee's the first time, he dropped his friend Juan at home, purchased some beer and, on his way home, he found a person from whom he purchased a gun for $30.00. After that, Cabrera-Pena said he then went back to Applebee's, parked his van and waited for his wife. Two hours later, his wife came out and, after they talked, they walked back to her friends. He told Membreno that, before he got out of his van, he had put the gun in his pants between his belt and his shirt. Cabrera-Pena told him that when the shot was fired, he got scared and threw the gun away behind a fence and left in the van.
On cross-examination, Cabrera-Pena, who was proceeding pro se, handed Membreno a document and inquired whether Membreno had signed it and given it to him. The document contained Cabrera-Pena's written statement to the police, which included his statement: "I do not know how she took the gun out of my pants pocket. I tried to grab and force her, but the gun went off and fired."
The following colloquy occurred out of the presence of the jury:
The Court: The State has objected to any statement that was made by you that tends to be in your favor. You may remain silent or you may tell the jury about this, but you may not ask this witness about this statement, this part of it.
Cabrera-Pena: Why can't I?
The Court: You either have to testify or remain silent. If you are permitted to ask him to read this part of the *376 statement, then you are testifying through another witness, which is not permitted. Do you understand?
Cabrera-Pena: It's the same thing that I said that I signed. It's the same thing.
The Court: You may testify or remain silent, but you may not ask this witness what you said to defend yourself. (Emphasis supplied).
The jury was charged with the law of murder and voluntary manslaughter, possession of a firearm during the commission of a violent crime, and three counts of pointing and presenting a firearm. During its deliberations, the jury inquired as to whether Cabrera-Pena's statement of his guilt to Membreno was admissible as evidence and inquired as to why it did not have Cabrera-Pena's statement. Thereafter, the jury requested to re-hear the testimony of Officer Membreno and requested to be recharged on the law of manslaughter. After lengthy deliberation and an Allen[1] charge, the jury returned verdicts of guilty on all counts. Cabrera-Pena was sentenced to life imprisonment for murder and concurrent terms of five years for each of three pointing a firearm offenses.
On appeal, Cabrera-Pena asserted the trial court erred in prohibiting him from questioning Officer Membreno about his statement made to the officer that his wife had somehow gotten the gun out of his pants pocket and it had gone off. He contended the "rule of completeness" and fundamental fairness demanded he be allowed to put his statement into context. The Court of Appeals disagreed. State v. Cabrera-Pena, 350 S.C. 517, 567 S.E.2d 472 (Ct.App.2002).
ISSUE
Did the Court of Appeals err in ruling Cabrera-Pena was not entitled to cross-examine Officer Membreno concerning the self-serving portions of the statements he made to the officer?
*377 DISCUSSION
A. Self-Serving Statement
The trial court ruled Cabrera-Pena's self-serving statement made to Officer Membreno was not a proper subject for cross-examination. The Court of Appeals agreed, finding Cabrera-Pena's statements to Membreno were not admissible under either Rule 106, SCRE, or under this Court's opinions in State v. Jackson, 265 S.C. 278, 217 S.E.2d 794 (1975) or State v. Terry, 339 S.C. 352, 529 S.E.2d 274, cert. denied, 531 U.S. 882, 121 S. Ct. 197, 148 L. Ed. 2d 137 (2000).
Initially, we note that, at oral argument before this Court, counsel for Cabrera-Pena indicated that this Court's opinion in State v. Terry is being read as requiring exclusion of the exculpatory portions of a defendant's statement under any and all circumstances. Such a reading misconstrues the holding in Terry.
Terry involves the issue of whether a statement against penal interest may be admitted by a non-testifying defendant pursuant to Rule 804(b)(3), SCRE. There, we held that Terry, who had elected not to testify, could not thereafter admit the self-serving statement he made to the police. The rationale for this holding, however, was that a defendant may not claim "unavailability" as a witness by virtue of exercising his fifth amendment privilege against self-incrimination. Terry stands only for the proposition that such an exculpatory statement may not be admitted by a non-testifying defendant pursuant to Rule 804(b)(3). However, this does not mean that the exculpatory statement of a non-testifying defendant is inadmissible under any and all circumstances. Indeed, we find the statement in the present case was admissible pursuant to State v. Jackson, 265 S.C. 278, 284, 217 S.E.2d 794, 797 (1975).
In State v. Jackson, it was held:
When part of a conversation is put into evidence, an adverse party is entitled to prove the remainder of the conversation, so long as it is relevant, particularly when it explains or gives new meaning to the part initially recited. "All statements made in a conversation, in relation to the same subject or matter, are to be supposed to have been intended to explain or qualify each other, and therefore the plainest *378 principles of justice requires that if one of the statements is to be used against the party, all of the other statements tending to explain it or to qualify this use should be shown and considered in connection with it."
265 S.C. at 284, 217 S.E.2d at 797 (emphasis supplied; internal citations omitted).
Here, Cabrera-Pena was interviewed during a one-hour period at 4:00 a.m. During this interview, he made oral statements to Officer Membreno and gave a written statement. At trial, the state elected, notwithstanding an abundance of eyewitness testimony, to call Officer Membreno to the stand and question him concerning the statements made to him by Cabrera-Pena. The trial court then prohibited Cabrera-Pena from cross-examining Membreno as to the remaining self-serving statements made to Membreno. This was error.
Officer Membreno testified as to his conversation with Cabrera-Pena, referring to his notes from the interview. Membreno testified that Cabrera-Pena blurted out that he was guilty and went on to give him the details of the evening. Thereafter, when Cabrera-Pena attempted to cross-examine Membreno concerning the contents of his report of their conversation, he was prohibited from doing so.[2] Under Jackson, once the state elected to utilize Officer Membreno's testimony to elicit incriminating statements made by Cabrera-Pena, justice required that his remaining statements tending to explain or qualify those statements should have been considered in connection therewith. Accordingly, we find Cabrera-Pena's cross-examination of Membreno was improperly limited.
We find the state's assertion of a distinction between the written and oral conversations in this case to be one without a difference. As noted previously, Officer Membreno testified on direct examination from his notes concerning the substance of his conversation with Cabrera-Pena. Cabrera-Pena then attempted to cross-examine Membreno regarding the contents of the report of that conversation. This is not a case in which the defendant gave numerous written and oral statements to *379 police over several hours, days or weeks. To the contrary, this was a one-hour conversation with police wherein Cabrera-Pena "gave a statement a written statement and vocal statements." We find that fundamental fairness requires that Cabrera-Pena be permitted to cross-examine Officer Membreno concerning the entirety of their conversation. Jackson, supra. Accordingly, we hold the Court of Appeals erred in holding Cabrera-Pena was not entitled to cross-examine Membreno.
Further, we take this opportunity to clarify for the bench and bar the application of Rule 106, SCRE. Rule 106 provides:
When a writing, or recorded statement, or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
The Court of Appeals held that Rule 106, by its terms, applies only to written or recorded statements. As we noted in State v. Taylor, 333 S.C. 159, 170, 508 S.E.2d 870, 876 (1998), Rule 106 is based on the rule of completeness and seeks to avoid the unfairness inherent in the misleading impression created by taking matters out of context. We stated:
Rule 106 [of the Federal Rules of Evidence] is a procedural device governing the timing of completion evidence; the Rule is `primarily designed to affect the order of proof'. It means that the adverse party need not wait until cross-examination or rebuttal. As such, the Rule reduces the risk that a writing or recording will be taken out of context and that an initial misleading impression will take hold in the mind of the jury.
Id. (citing S. Saltzburg, M. Martin & D. Capra, Federal Rules of Evidence Manual, 98-99 (1998)). The Historical Notes to Rule 106 recognize, however, that adoption of the "rule does not change the order of proof as to the remainder of an unrecorded conversation; the party seeking to bring out the remainder must do so during cross-examination or during that party's case." (Emphasis supplied). Accordingly, Rule 106 merely requires that an oral or unrecorded conversation be brought out upon cross-examination, rather than on direct examination; the rule does not, however, prohibit introduction *380 of oral statements or otherwise vitiate the rule of completeness as it applies to such statements.
We find the common law of this state extends the rule of completeness to oral communications. Jackson, supra. Accord State v. Eugenio, 219 Wis. 2d 391, 579 N.W.2d 642 (1998) (notwithstanding provision identical to Rule 106 referring only to written or recorded statements, common law rule of completeness continues to exist for oral statements); State v. Cruz-Meza, 76 P.3d 1165 (Utah 2003) (recognizing rule of completeness may be applied to oral statements through Rule 611);[3]State v. Johnson, 479 A.2d 1284 (Maine 1984). See also United States v. Haddad, 10 F.3d 1252 (7th Cir.1993) (citing 1 Weinstein & Berger, Weinstein's Evidence, § 106-4 (1992)). Accordingly, where, as here, the state elects to use a witness to elicit portions of a conversation (and incriminating statements therein) made by a defendant, the rule of completeness requires the defendant be permitted to inquire into the full substance of that conversation.
B. Harmless Error
Although we find Cabrera-Pena should have been permitted to cross-examine Membreno concerning the remainder of what Cabrera-Pena said in his conversation during the interview, we find this error harmless beyond a reasonable doubt given the overwhelming evidence of guilt in this case. Arnold v. State, 309 S.C. 157, 420 S.E.2d 834 (1992), cert. denied, 507 U.S. 927, 113 S. Ct. 1302, 122 L. Ed. 2d 691 (1993) (error is harmless beyond a reasonable doubt where it did not contribute to the verdict obtained). We make this determination fully cognizant of the rule that if any evidence exists to warrant the jury charge of the lesser-included offense of involuntary manslaughter, then the charge must be given. State v. Burriss, 334 S.C. 256, 265, 513 S.E.2d 104, 109 (1999).
Under the facts in the instant case, Cabrera-Pena was not entitled to the charge on the lesser-included offense of *381 involuntary manslaughter as a matter of law. Involuntary manslaughter is defined as either:
(1) the killing of another without malice and unintentionally, but while one is engaged in the commission of some unlawful act not amounting to a felony and not tending to cause death or great bodily harm; or (2) the killing of another without malice unintentionally, but while one is acting lawfully with reckless disregard of the safety of others.... Again, the pivotal issue is whether Appellant was engaged in a lawful activity at the time of the killing.
Id. 334 S.C. at 264-265, 513 S.E.2d at 109.
We find that Cabrera-Pena's conduct leaving Alma at Applebee's and purchasing a handgun; loading the handgun; returning to the Applebee's parking lot to wait for Alma to exit the restaurant; calling her over to his van after she exited the restaurant; showing Alma the gun and then walking her back over to the truck where the friends were standing, prompting Alma to motion to them that he had a gun; and finally, shooting her in the eye, killing her is not the type of conduct contemplated under either definition of involuntary manslaughter.
Cabrera-Pena's conduct does not fit within the first definition of involuntary manslaughter because he was engaged in unlawful, felonious and harmful conduct. At minimum, he used the loaded pistol to intimidate Alma and forcefully walk her over to the pickup truck where her friends were. This conduct may be considered felonious under S.C.Code Ann. § 16-23-410 (1976) (pointing or presenting a firearm) or S.C.Code Ann. § 16-3-910 (1976) (kidnapping).[4] Further, we note that Cabrera-Pena was convicted of three counts of the felony of pointing and presenting a firearm, S.C.Code Ann. § 16-23-410, as he pointed the pistol at Alma's three friends after he shot Alma and before he fled the scene.
*382 Cabrera-Pena's conduct also does not fit within the penumbra of the second definition of involuntary manslaughter. Cabrera-Pena was acting unlawfully when he took advantage of the unfair and extremely dangerous situation that he created by bringing a loaded, deadly weapon into a domestic dispute in a public place.
Moreover, this is not a type of involuntary manslaughter case where "a person can be acting lawfully, even if he is in unlawful possession of a weapon, if he was entitled to arm himself in self defense at the time of the shooting." State v. Crosby, 355 S.C. 47, 52, 584 S.E.2d 110, 112 (2003) (emphasis supplied) (citing Burriss, 334 S.C. at 262, 513 S.E.2d at 108). Cabrera-Pena presented no evidence that he was acting in self-defense.
The dissent would hold, however, that mere "evidence of negligent handling of a loaded gun will support a charge of involuntary manslaughter." Burriss, 334 S.C. at 265, 513 S.E.2d at 109; State v. White, 253 S.C. 475, 479, 171 S.E.2d 712, 714 (1969).[5]
In Burriss, the question was, as here, whether the defendant was entitled to have the lesser-included offense of involuntary manslaughter submitted to the jury. According to Burriss, Kenneth and James were smoking crack laced marijuana cigarettes, "getting crazy or something," when they threatened to rob him. After being physically attacked and thrown to the ground, Burriss drew his gun and Kenneth ran into a house "like he was getting something." Burriss was afraid it was a gun. When James began moving threateningly toward Burriss, Burriss snatched his gun up and it fired, killing Kenneth. 334 S.C. at 263, 513 S.E.2d at 108. This Court found that "the evidence in the record supports Appellant's claim he was acting lawfully when the gun fired." Id. at 265, 513 S.E.2d at 109 (emphasis supplied).
*383 The unlawful possession of a firearm does not preclude a charge of accident if the accused was engaged in a lawful activity at the time of the killing. State v. Goodson, 312 S.C. 278, 440 S.E.2d 370 (1994). However, the "unlawful possession of a firearm can under certain circumstances constitute an unlawful activity so as to preclude an accident defense if it is the proximate cause of the killing." Burriss, 334 S.C. at 262, 513 S.E.2d at 108 n. 5. The same reasoning applies in the context of involuntary manslaughter, and "a person can be acting lawfully, even if he is in unlawful possession of a weapon, if he was entitled to arm himself in self-defense at the time of the shooting." Id. at 265, 513 S.E.2d at 109.[6]
The dissent duly notes that this Court does not sit as a finder of fact to determine the believability of Cabrera-Pena's statement. But this Court must determine as a matter of law whether that statement would have entitled Cabrera-Pena to a charge of involuntary manslaughter in this case. State v. Tyler, 348 S.C. 526, 560 S.E.2d 888 (2002). It is patent that Cabrera-Pena's conduct in arming himself with a deadly weapon, to lay in wait for his wife, so that he could confront her, was not a lawful activity and, indeed, created a highly volatile and incendiary domestic situation that resulted in *384 Alma's death. Id. Therefore, Cabrera-Pena was not entitled to an involuntary manslaughter charge.
CONCLUSION
We REVERSE the ruling of the Court of Appeals that an adverse party is not permitted to bring out, during cross-examination, remaining portions of an unrecorded conversation or oral statement made by the adverse party for the purpose of clarifying or explaining an entire conversation. Jackson, supra. If the statement is in writing or recorded, the adverse party may require the introduction of the relevant portions at the time of introduction of other portions of the statement pursuant to Rule 106, SCRE. We hold that Cabrera-Pena should, in fairness, have been allowed to cross-examine Officer Membreno to fully place into context the substance of their conversation. Accordingly, to the extent the Court of Appeals held otherwise, its opinion is reversed.
We, nonetheless, affirm in result because we find there was overwhelming direct evidence of Cabrera-Pena's guilt of the offense of murder such that any error in the limitation of Cabrera-Pena's cross-examination was harmless beyond a reasonable doubt.
REVERSED IN PART; AFFIRMED IN RESULT.
TOAL, C.J., and BURNETT, J., concur. MOORE, J., dissenting in a separate opinion in which PLEICONES, J., concurs.
Justice MOORE dissenting:
I respectfully dissent. I agree the trial court erred in refusing to admit appellant's statement in its entirety, but I would not find this error harmless.
The majority relies on evidence from the State's witnesses to conclude appellant was not entitled to a charge of involuntary manslaughter. Under appellant's version of the facts, however, he was entitled to such a charge. The excluded part of appellant's statement was: "I do not know how she took the gun out of my pants pocket. I tried to grab and force her, but *385 the gun went off and fired."[7] Because this critical part of appellant's statement would have entitled him to a charge of involuntary manslaughter, the error in its exclusion cannot be harmless. See State v. Burriss, 334 S.C. 256, 265, 513 S.E.2d 104, 109 (1999) (evidence of negligent handling of a loaded gun will support a charge of involuntary manslaughter); State v. White, 253 S.C. 475, 479, 171 S.E.2d 712, 714 (1969) (same).
As stated by the majority, involuntary manslaughter is defined as either:
(1) the killing of another without malice and unintentionally, but while one is engaged in the commission of some unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm; or (2) the killing of another without malice and unintentionally, but while one is acting lawfully with reckless disregard of the safety of others.
Burriss, 334 S.C. at 264-65, 513 S.E.2d at 109. Here, there is no evidence appellant unlawfully possessed the weapon.[8] Even if appellant was acting unlawfully in carrying a concealed weapon, this conduct is not a felony[9] such that it would preclude a charge of involuntary manslaughter, nor is it an activity in itself "tending to cause death or great bodily harm." To preclude a charge of involuntary manslaughter, the unlawful possession of a weapon must be the proximate cause of the killing. Id. at 262, 513 S.E.2d at 108, n. 5. Under appellant's version of the facts, his possession of the gun was not the proximate cause of the victim's death since the gun was removed from his pocket only when the victim herself grabbed it.
*386 This Court does not sit as a finder of fact. It was for the jury to determine whether appellant's version of the shooting was believable or not. Had appellant's statement been admitted in full, it would have entitled him to a charge of involuntary manslaughter. Accordingly, I would reverse.
PLEICONES, J., concurs.
NOTES
[1] Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
[2] The omitted portion of Cabrera-Pena's statement was that "I do not know how she took the gun out of my pants pocket. I tried to grab and force her, but the gun went off and fired."
[3] Rule 611(a) provides that the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth. SCRE 611(a) is identical to the federal rule.
[4] See also S.C.Code Ann. § 16-25-65 (Supp.2003), "Criminal Domestic Violence of a High and Aggravated Nature" as amended by 2003 Act No. 92, § 3, eff. January 1, 2004 (a person who commits "an assault and battery which involves the use of a deadly weapon" or "an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death" is guilty of a felony).
[5] In her well-reasoned dissent in State v. Reese, 359 S.C. 260, 280, 597 S.E.2d 169, 179 (Ct.App.2004), Chief Judge Hearn of the Court of Appeals points out that while White cites this as a proposition of law, the issue in White did not hinge on this analysis but rather whether the trial judge erred in permitting a murder indictment to go to the jury when the only offense charged was involuntary manslaughter.
[6] As noted in Burriss,"[t]here is a difference being lawfully armed in self-defense and acting in self-defense." 334 S.C. at 265, 513 S.E.2d at 109 n. 10 (emphasis supplied). In this case, there is no evidence Cabrera-Pena "was engaged in a lawful activity at the time of the killing" so as to have entitled him to be armed. Id. Nevertheless, the dissent would find "there is no evidence Cabrera-Pena was unlawfully carrying a weapon" because there is an exception for those persons with a permit from SLED from the express provision that "[i]t is unlawful to carry about the person any pistol, whether concealed or not." S.C.Code Ann. § 16-23-20(12) (2003). This is notwithstanding that the "statute clearly states that it is unlawful to carry a pistol, and the exceptions are not descriptive of the offense. This Court holds the view that the state is not required to negate each exception to the offense of unlawfully carrying a pistol to sustain its burden of proof." State v. Clarke, 302 S.C. 423, 425, 396 S.E.2d 827, 828 (1990). Without addressing whether or not SLED was granting permits that night, we find that Cabrera-Pena was not simply carrying a weapon; he was carrying the weapon for the purpose of laying in wait in order to confront his wife. The subsequent confrontation that ensued illustrated that Cabrera-Pena had every intention of using the gun.
[7] Eyewitnesses testified the victim put her hand on appellant's wrist but she backed away before the gun was fired. Appellant referred to this testimony in closing argument and maintained the shooting was an accident.
[8] The majority cites S.C.Code Ann. § 16-23-20 (2003) for the proposition that it is unlawful to carry a weapon on one's person. This section provides in full that it is unlawful to carry a weapon without a permit. § 16-23-20(12). The State did not come forward with any evidence that appellant was in unlawful possession of the gun and there is no evidence regarding whether or not appellant had a permit.
[9] A violation of § 16-23-20 (carrying a concealed weapon) is a misdemeanor. S.C.Code Ann. § 16-1-100(C) (Supp.2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330650/ | 306 S.C. 539 (1992)
413 S.E.2d 325
TOWN OF SULLIVANS ISLAND, Appellant
v.
James H. BYRUM, J. Harold Byrum, Juanita T. Byrum, and Two Thousand Fourteen Corporation, Respondents.
1741
Court of Appeals of South Carolina.
Heard September 17, 1991.
Decided January 6, 1992.
Rehearing Denied January 23, 1992.
*540 John P. Algar, Charleston, and Lawrence A. Dodds, Jr., of Dodds & Hennessy, Mount Pleasant, for appellant.
Morris D. Rosen, of Rosen, Rosen & Hagood, Charleston, for respondents.
Heard September 17, 1991;
Decided January 6, 1992.
Reh. Den. January 23, 1992.
*541 Per Curiam:
The Plaintiff, Town of Sullivans Island (Town), sought to enjoin the Defendants,[1] Byrums, from using part of their residence as a "Bed & Breakfast" boarding house. The Town also sought to enjoin the Byrums' use of a garage apartment for human habitation. The Town argued that both uses violated the applicable zoning ordinances. The trial judge refused the requested injunctions, and the Town appealed. We reverse and remand for the entry of an order granting both injunctions.
A fire damaged the Byrums' residence in 1983. The Byrums decided to renovate the house and use part of it as a Bed & Breakfast. As a result, the repair work went far beyond the fire damage, including the development of six separate bedrooms and baths. Nothing indicates that the Byrums told the Town of their intended use during the repair process.
At the time of the renovations, § 21-3 of the Town's zoning ordinances defined "permitted home occupation uses" as follows:
Any use conducted entirely within a dwelling and carried on by the occupants thereof, which use is clearly incidental and secondary to the use of the dwelling for residential purposes and does not change the character thereof, and no person, not a resident of the premises is employed specifically in connection with the activity. Provided, further, that no mechanical equipment is installed or used except such as is normally used for domestic or professional purposes, and that not over twenty-five (25%) percent of the total floor space of any structure is used for home occupation.
This is the second time these parties have been before this Court regarding the Byrums' Bed & Breakfast operation. In the first case, the Byrums' sought a variance from the twenty-five (25%) percent limitation on "home occupation" uses. The Board of Adjustment denied the variance on two grounds: (1) a Bed & Breakfast is not a home occupation; and (2) the operation exceeded the twenty-five (25%) percent limitation on structural usage for home occupations. The Circuit Court reversed *542 both findings on appeal. This Court reversed the Circuit Court and reinstated the Board's denial of the variance, concluding that the Bed & Breakfast operation exceeded the twenty-five (25%) percent limitation. Byrum v. Board of Adjustment, 294 S.C. 114, 362 S.E. (2d) 890 (Ct. App. 1987) (Byrum I). This Court did not discuss the first issue.
During the pendency of the appeal before the Circuit Court in Byrum I, the Town amended its "home occupation" ordinance and specifically prohibited the use of a residence as a boarding house. At the time of this amendment, the Byrums continued to use more than twenty-five (25%) percent of the residence in the Bed & Breakfast operation contrary to both the original and the amended ordinance.
After this Court's decision in Byrum I, the Byrums continued to operate the Bed & Breakfast but allegedly reduced the structure usage to less than twenty-five (25%) percent. They applied to the Town for a license, and the Town denied their application. They continued to operate the Bed & Breakfast, and the Town commenced the present action.
The present case raises several issues:
(1) In Byrum I, did this Court decide whether a Bed & Breakfast operation is a "home occupation use" permitted under the then-existing zoning ordinance? If so, what did it rule? If not, is a Bed & Breakfast a home occupation?
(2) Assuming a Bed & Breakfast is a "home occupation," does the present operation exceed the twenty-five (25%) percent limitation?
(3) Assuming a Bed & Breakfast is a "home occupation," is the Byrums' operation "grandfathered in" as a nonconforming use so that the amended ordinance does not apply to the Byrums' operation? If not, is the Town estopped from raising this issue?
(4) Is the Town estopped from challenging the use of the garage as an apartment?
The trial judge ruled as follows:
(1) Byrum I held that a Bed & Breakfast operation is a home occupation.
(2) The present operation does not exceed the twenty-five (25%) percent limitation.
*543 (3) The Town is estopped from relying on the amended ordinance and its prohibition of boarding houses, because the Town told the Byrums during Byrum I that their use was not permitted regardless of the percentage of use.
(4) The Town is estopped from challenging the use of the garage as an apartment, because it knew the apartment was being built but never challenged it.
The trial judge also held that the Byrums could use the garage apartment for family use only. The Byrums do not appeal this ruling.
In Byrum I, this Court did not decide the home occupation issue. We only decided the more narrow issue of whether the Byrums were exceeding the twenty-five (25%) percent limitation. We now decide that a Bed & Breakfast is not a home occupation.
The zoning ordinance defined home occupation as quoted herein above. We conclude that the Bed & Breakfast operation is not "clearly incidental and secondary" to the residential use of the property, and that it changed the character of the residence.
The Byrums' renovation of the property included the construction of an apartment within the house where Mr. and Mrs. Byrum would live. This apartment had its own kitchen, bathroom, bedroom, and a small living room.
After the renovation, there were five other bedrooms which were used for the Bed & Breakfast. Each bedroom had its own bathroom, water heater, air conditioner, and heater. The second (large) kitchen was used primarily for the preparation of continental breakfasts for the boarders.
Under these facts, it is clear that the Bed & Breakfast operation dominated the character and use of the residence and, therefore, it is not a home occupation. It is more like a boarding house than a traditional home occupation, such as a craft shop or dressmaker. The Pennsylvania Commonwealth Court recently reached the same result in a remarkably similar case. Reynolds v. Zoning Hearing Board of Abington Township, 134 Pa. Commw. 382, 578 A. (2d) 629 (1990).
In calculating the percentage of use, the trial judge erred in excluding the square footage of the upstairs hallway or foyer. The record clearly demonstrates that *544 all of the upstairs rooms are part of the present Bed & Breakfast operation. Thus, the only use of the hallway is for the Bed & Breakfast operation. When the square footage of the hallway is added into the trial judge's calculations, the present use clearly exceeds the twenty-five (25%) percent limitation.
Even if the Bed & Breakfast operation is a home occupation as contemplated by the original ordinance, and the present operation does not exceed the twenty-five (25%) percent limitation, the amended ordinance is applicable and prohibits any Bed & Breakfast operation. The operation is not a nonconforming use under the amended ordinance, because it was not a conforming use at the time of the amendment, i.e., the Byrums were in violation of the twenty-five (25%) percent limitation at the time of the amendment. See Troutman v. Aiken, 213 Ga. 55, 96 S.E. (2d) 585 (1957) (A use cannot be a nonconforming use if it was unlawful at the time of the amendment of the ordinance to prohibit the use). This ruling conforms to the law's general disfavor of nonconforming uses.
Nor should the Byrums be entitled to prevail by reason of the law of estoppel.
As a general rule, estoppel does not lie against the government to prevent the due exercise of its police power or to thwart the application of public policy. South Carolina Dept. of Social Servs. v. Parker, 275 S.C. 176, 268 S.E. (2d) 282 (1980). The acts of government agents acting within the scope of their authority can give rise to estoppel against the government, but unauthorized conduct or statements do not give rise to estoppel. South Carolina Coastal Council v. Vogel, 292 S.C. 449, 357 S.E. (2d) 187 (Ct. App. 1987), appeal dismissed, 294 S.C. 80, 362 S.E. (2d) 646 (1987). To prove estoppel against the government, the claiming party must show (1) a lack of knowledge and the means of knowledge about the truth of the matter in question, (2) justifiable reliance on the government's conduct, and (3) a prejudicial change in position. Midlands Utility, Inc. v. South Carolina Dept. of Health and Envtl. Control, 298 S.C. 66, 378 S.E. (2d) 256 (1989). When a landowner has actual or constructive notice of a matter, and does not show any misrepresentation or concealment by the government, estoppel will not lie against the government. South Carolina Pub. Serv. Auth. v. Ocean Forest, *545 Inc., 275 S.C. 552, 273 S.E. (2d) 773 (1981) (power company's easement to cut "danger trees"); South Carolina State Highway Dept. v. Metts, 270 S.C. 73, 240 S.E. (2d) 816 (1978) (right of way over property); City of Myrtle Beach v. Parker, 260 S.C. 475, 197 S.E. (2d) 290 (1973) (existence of a public street).
The Town is not estopped from raising the nonconforming use issue. The record clearly demonstrates that the Town objected to the operation on two grounds at all relevant times. First, it contended that the operation was not a home occupation. Second, it contended that the operation, if permitted as a home occupation, exceeded the twenty-five (25%) percent limitation on home occupations. Moreover, the Byrums clearly knew at all relevant times that their use exceeded the twenty-five (25%) percent limitation; that is why they sought a variance in Byrum I. Thus, they could not have detrimentally relied on the position taken by the Town, and reliance is a necessary element of estoppel. In addition, nothing indicates that the Byrums changed their position in reliance on any statement or conduct by the Town.
The cases relied upon by the trial judge and the Byrums are not applicable. They involve situations where an official told a property owner that a use was permitted but later reversed that position. Here, the Town never told the Byrums that their Bed & Breakfast operation was a permitted use.
The Town is not estopped from challenging the use of the garage as an apartment. There is no evidence of any statement or conduct by Town that reasonably misled the Byrums into believing the garage apartment was a permitted use, or that the Town would not contest the use.
The trial judge found that the Town's building inspector must have known about the construction of the garage apartment. He based this finding on the fact that the inspector visited the residence during the construction. He concluded the inspector must have seen the garage apartment construction and must have had plans showing the garage construction. There is no evidence to support these conclusions.
The building inspector testified he never inspected the garage, never saw any plans, and never knew of the garage apartment construction. No one testified that they showed the garage apartment to the inspector or told him about it.
The Town's administrator testified his search of the Town's *546 records did not reveal any plans on file. He also testified that the Town did not uniformly require plans at the time of the construction. The building permits do not indicate that plans were filed by anyone. No one testified that they submitted any plans. One of the Byrums testified that he assumed the contractor submitted plans, but the contractor did not testify.
Assuming that the building inspector knew of the garage apartment construction, nothing indicates that he had authority to allow such construction or grant a variance to the zoning ordinances.
In summary, we hold the injunctions should be granted. The case is remanded to the Circuit Court of Charleston County for the entry of judgment in accordance with this decision.
Reversed and remanded.
NOTES
[1] The defendant, Two Thousand Fourteen Corporation, owns the residence. The Byrums are the sole stockholders in the corporation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330669/ | 413 S.E.2d 922 (1992)
105 N.C. App. 509
Sharon R. COOK, Executrix of the Estate of Everett E. Cook, Plaintiff,
v.
James Monroe MORRISON d/b/a Morrison Septic Tank and Construction Company and David H. Osteen, Defendants.
No. 9129SC397.
Court of Appeals of North Carolina.
March 3, 1992.
*923 Shuford, Best, Rowe, Brondyke & Wolcott, by Patricia L. Arcuri and James Gary Rowe, Asheville, for plaintiff-appellant.
Blue, Fellerath, Cloninger & Barbour, P.A., by John C. Cloninger, Asheville, for defendant-appellee David H. Osteen.
GREENE, Judge.
Plaintiff appeals from an order entered 12 February 1991 granting defendant-David Osteen's motion for summary judgment.
Viewed in the light most favorable to the plaintiff, the evidence produced at the summary judgment hearing tends to show the following: In December, 1986, David Osteen (defendant) bought a piece of real estate located in Henderson County, North Carolina now known as the Sunny Pines Subdivision. Sometime in the early months of 1987, the defendant decided to develop the land. Although the defendant held a residential contractor's license, he was a truck driver by trade. He had never built a house as a general contractor, other than his own home, and when he built his own home, he had nothing to do with installing the septic system. Furthermore, the defendant did not know how to dig a trench or install a sewer system.
To begin developing his property, the defendant had an engineer design a sewer system for his property. He then entered into an oral contract with James Morrison (Morrison), the sole proprietor of Morrison Construction and Septic Tank Company (Morrison Company), to install the sewer system on the defendant's property at a cost of $3.40 per foot. The system was to consist of a treatment plant and sewer lines. Morrison ordered the materials needed for the job, and Morrison Company began working on about 1 July 1987. Morrison supplied the equipment needed for the job. Although Morrison could not recall whether he had the authority under the contract to hire employees for the job, he testified that he normally used his own employees to install sewer systems, and for this job, he hired several employees. One of his employees was Everett Cook (Cook). No one besides Morrison instructed Morrison's employees as to what they were to do and how they were to do it. The only people that the defendant had on the job site were the defendant's son and a friend of his son. They helped carry pipe and retrieve materials for Morrison's employees. Neither Morrison nor the defendant paid these people for their help. During the time period of this job, Morrison submitted bids for other projects for septic tank installation. With regard to the other jobs Morrison had at this time, he, not the defendant, decided when his crew would work at the defendant's property and when they would work elsewhere. To the best of the plaintiff's knowledge, however, Cook worked only on this job site.
The defendant visited the site about every other day usually during his lunch hour to check on Morrison's progress. Occasionally, the defendant gave instructions and made suggestions to Morrison about the work related to engineering requirements *924 as set out in the blueprints for the sewer system, including the need for a certain piece of equipment, where to start, where to place the treatment plant, where to place the manholes, and how much dirt had to be on top of the pipe. Morrison, however, was in charge of digging the trench and installing the sewer system.
On 4 August 1987, Cook and two other employees were working in a newly excavated trench which was approximately twenty-six feet long, five feet wide, and thirteen feet deep when part of the trench collapsed killing Cook. The walls of the trench were vertical and had not been shored, sloped, braced, or otherwise supported to prevent a collapse. Furthermore, material removed from the trench was stored about six inches from the edge of the trench. The North Carolina Department of Labor cited Morrison for violations of the Occupational Safety and Health Act because of the absence of proper support for the walls of the trench and because of the closeness to the edge of the trench of the material removed from it. Morrison explained that the trench had not yet been prepared because he was still digging it at the time of the accident. He further explained that because his employees knew better than to enter an unprepared trench, he did not know why Cook and the other two employees were in this one. He testified that this was the first time that any of his employees had been in an unprepared trench on this job. At the time of the accident, Morrison was operating a backhoe and did not observe the collapse, and the defendant was not present at the site.
Sharon Cook (plaintiff) is the executrix of Cook's estate. On 25 July 1989, she filed this wrongful death action against the defendant and Morrison. She alleged that the defendant was liable to her for her husband's death on four theories: (1) respondeat superior, (2) breach of duty to an invitee, (3) breach of nondelegable duty, and (4) negligent hiring of an independent contractor. On 20 November 1990, the defendant filed a summary judgment motion which was granted on 12 February 1991.
The issues are (I) whether the forecast of the evidence shows that Morrison was the defendant's employee; (II) whether the forecast of the evidence shows that the defendant knew or should have known of the circumstances creating the danger to which Cook was exposed for purposes of the plaintiff's cause of action against the defendant as a landowner; (III) whether the forecast of the evidence shows that the defendant knew or should have known of these same circumstances for purposes of the plaintiff's cause of action against the defendant for breach of a nondelegable duty; and (IV) whether the estate of an employee of an independent contractor may obtain relief from a party who negligently hires the independent contractor.
I
Independent Contractor or Employee
The plaintiff argues that summary judgment on the issue of the defendant's liability under the doctrine of respondeat superior was improper because genuine issues of material fact exist as to whether Morrison was the defendant's employee. See, Harris v. Miller, 103 N.C.App. 312, 322, 407 S.E.2d 556, 561, appeal filed and disc. rev. allowed, 329 N.C. 788, 408 S.E.2d 520 (1991) (employer-employee relationship required for liability under doctrine of respondeat superior).
An independent contractor is "one who exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work." Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 384, 364 S.E.2d 433, 437, reh'g denied, 322 N.C. 116, 367 S.E.2d 923 (1988). Where, however, the hiring party "retains the right to control and direct the manner in which the details of the work are to be executed," the working party is the hiring party's employee, not an independent contractor. Id. Whether the hiring party retains the right to control and direct the manner in which the working party executes *925 the details of his task depends upon various factors which must be considered when implicated by the evidence. Id. 321 N.C. at 384-86, 364 S.E.2d at 437-39; Hayes v. Elon College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944). When viewed in the light most favorable to the plaintiff, the evidence and the factors it implicates compel the conclusion that Morrison was an independent contractor. Yelverton v. Lamm, 94 N.C.App. 536, 538-39, 380 S.E.2d 621, 623 (1989) (whether working party is independent contractor or employee is question of law for court where evidence is susceptible of only one conclusion).
First, the defendant had agreed to pay Morrison $3.40 per foot for a specific task, a factor indicative of contractorship. Hayes, 224 N.C. at 16, 29 S.E.2d at 140 (specific piece of work upon quantitative basis indicates contractorship). Second, Morrison supplied the equipment and ordered the supplies used on the job site, factors indicative of contractorship. 1C A. Larson, The Law of Workmen's Compensation § 44.34(a) (1991) [hereinafter 1C Larson]. Third, although the defendant was not in the business of installing sewer systems, Morrison was engaged in this type of business, Morrison Company, and these factors indicate contractorship. Hayes, 224 N.C. at 16, 29 S.E.2d at 140; Restatement (Second) of Agency § 220(2)(b), (h) (1957). Fourth, although the defendant volunteered his son and a friend to the job site, Morrison hired his own employees for the job. "The freedom to employ such assistants as the ... [working party] may think proper indicates contractorship." Youngblood, 321 N.C. at 384, 364 S.E.2d at 438. Fifth, Morrison had full control over his employees, a factor indicative of contractorship. Hayes, 224 N.C. at 16, 29 S.E.2d at 140. Sixth, Morrison decided when his employees would work on the defendant's project and when they would work elsewhere, a factor indicative of contractorship. Youngblood, 321 N.C. at 385, 364 S.E.2d at 438. Finally, Morrison believed that he was not the defendant's employee, a factor indicative of contractorship. Restatement (Second) of Agency § 220(2)(i). All of the factors implicated by the evidence suggest that Morrison was an independent contractor, not an employee. That the defendant occasionally gave instructions and made suggestions to Morrison concerning engineering requirements set out in the blueprints for the sewer system does not create an employer-employee relationship. As Professor Larson explains:
An owner, who wants to get work done without becoming an employer, is entitled to as much control of the details of the work as is necessary to ensure that he gets the end result from the contractor that he bargained for. In other words, there may be a control of the quality or description of the work itself, as distinguished from control of the person doing it, without going beyond the independent contractor relation.
1C Larson, supra, § 44.21. The evidence produced at the summary judgment hearing does not show that the defendant retained any right to control and direct the manner in which Morrison executed the details of his task. To the contrary, the evidence shows that Morrison was an independent contractor. Accordingly, summary judgment for the defendant on this cause of action was proper.
II
Owner-Invitee
The plaintiff argues that summary judgment on her claim against the defendant as a landowner was improper because genuine issues of material fact exist as to whether the defendant breached his duty of care to Cook, an invitee.
While working on the defendant's land as an employee of an independent contractor, Cook was an invitee of the defendant. Spivey v. Babcock & Wilcox Co., 264 N.C. 387, 388, 141 S.E.2d 808, 810 (1965). The defendant therefore owed Cook the duty "to exercise ordinary care to keep the premises in a reasonably safe condition so as not to expose him unnecessarily to danger, and to give warning of hidden conditions and dangers of which ... [he] had express or implied knowledge." *926 Southern Ry. Co. v. ADM Milling Co., 58 N.C.App. 667, 673, 294 S.E.2d 750, 755, disc. rev. denied, 307 N.C. 270, 299 S.E.2d 215 (1982); Spivey, 264 N.C. at 388-89, 141 S.E.2d at 810 (defendant owed duty to employee of independent contractor to warn of hidden danger in its plant). The defendant had no duty, however, to warn Cook of an obvious condition on the land of which Cook had equal or superior knowledge, unless the defendant should have anticipated an unreasonable risk of harm to Cook notwithstanding the obviousness of the condition. Southern, 58 N.C.App. at 673, 294 S.E.2d at 755. In such cases, the particular circumstances may require the owner or occupier of the land to take precautions beyond warning the invitee of the obvious condition. Id. at 674, 294 S.E.2d at 756.
These general rules on the tort liability of owners and occupiers of land to invitees, however, do not apply to the actual work undertaken by independent contractors and their employees. Unless the activity undertaken is inherently dangerous, an owner or occupier of land who hires an independent contractor is not required to provide employees of the independent contractor a safe place to work nor is he required to take proper safeguards against dangers which may be incident to the work undertaken by the independent contractor. Brown v. Texas Co., 237 N.C. 738, 741, 76 S.E.2d 45, 46-47 (1953); 62 Am.Jur.2d Premises Liability § 457 (1990). If, however, the activity is inherently dangerous and the owner or occupier of the land knows or should know of the circumstances creating the danger, then the owner or occupier of the land has the nondelegable duty to the independent contractor's employees "to exercise due care to see that... [these employees are] provided a safe place in which to work and proper safeguards against any dangers as might be incident to the work [are taken]." Woodson v. Rowland, 329 N.C. 330, 357, 407 S.E.2d 222, 238 (1991) (where general contractor hired subcontractor to perform alleged inherently dangerous activity, general contractor liable for breach of nondelegable duty of care if it knew of circumstances creating danger).
Assuming arguendo that the forecast of the evidence at the summary judgment hearing is sufficient to establish a genuine issue of material fact as to whether the trenching was inherently dangerous, id. at 354, 407 S.E.2d at 236, there is no evidence in the record demonstrating that the defendant knew or should have known of the circumstances creating the danger to which Cook was exposed. Although the defendant, a truck driver by trade, held a residential contractor's license, he had never built a house as a general contractor other than the one he owned, and on that house he was not involved, even in a supervisory capacity, in installing the septic system. Although the defendant visited the site approximately every other day and occasionally gave instructions and made suggestions as to how Morrison should comply with various engineering requirements, the defendant did not know how to dig a trench, did not know what "shoring" a trench meant prior to Morrison's deposition, and testified that if Morrison had been improperly installing the system, he would not have known it. Finally, Morrison testified that to his knowledge the defendant would not have seen men in a trench before the dirt had been moved away from the edges of it because the day of the accident was the first time anyone had been in such a trench. Because these facts do not show that the defendant knew or should have known of the circumstances creating the danger to which Cook was exposed, summary judgment for the defendant was proper on this cause of action.
III
Nondelegable Duty
The plaintiff argues that the trial court erred in granting summary judgment on her claim for breach of the nondelegable duty to ensure that Morrison was taking adequate safety precautions.
On these facts, this cause of action is essentially identical to the plaintiff's cause of action for liability based upon the defendant's *927 ownership of the land upon which Cook was killed. Unless the activity undertaken is inherently dangerous, one who hires an independent contractor is not required to provide employees of the independent contractor a safe place to work nor is he required to take proper safeguards against dangers which may be incident to the work undertaken by the independent contractor. Id. at 350-57, 407 S.E.2d at 234-38. If, however, the activity is inherently dangerous and the party who hired the independent contractor knows or should know of the circumstances creating the danger, then he has the nondelegable duty to the independent contractor's employees "to exercise due care to see that... [these employees are] provided a safe place in which to work and proper safeguards against any dangers as might be incident to the work [are taken]." Id. at 357, 407 S.E.2d at 238. Again, assuming arguendo that the forecast of the evidence is sufficient to establish a genuine issue of material fact as to whether the trenching was inherently dangerous, because there was no evidence in the record demonstrating that the defendant knew or should have known of the circumstances creating the danger to which Cook was exposed, summary judgment for the defendant was proper.
IV
Negligent Hiring
The plaintiff argues that summary judgment on her negligent hiring claim was improper because genuine issues of material fact exist as to whether the defendant negligently hired Morrison.
In Woodson v. Rowland, 92 N.C.App. 38, 46-47, 373 S.E.2d 674, 678-79 (1988), aff'd in part and rev'd in part, 329 N.C. 330, 407 S.E.2d 222 (1991), this Court addressed the issue of whether one who hires an independent contractor is under a duty to the independent contractor's employees to select the independent contractor with reasonable care. Stated differently, the issue is "whether an injured employee of the incompetent or unqualified independent contractor can obtain relief from the party who negligently hired or retained the independent contractor." Woodson, 329 N.C. at 358, 407 S.E.2d at 239. This Court refused to recognize any duty flowing from the one hiring the independent contractor to the independent contractor's employee. Woodson, 92 N.C.App. at 46-47, 373 S.E.2d at 678-79. Because the North Carolina Supreme Court did not disavow this Court's holding nor the reasoning underlying it, Woodson, 329 N.C. at 358, 407 S.E.2d at 239, we are bound by it and conclude that summary judgment for the defendant on this cause of action was proper. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (panel of Court of Appeals bound by decisions of prior panels unless overturned by higher court). We note, however, that courts in other states have resolved this issue contrary to the position taken by this Court. See, e.g., Cassano v. Aschoff, 226 N.J.Super. 110, 543 A.2d 973, 975 cert. denied, 113 N.J. 371, 550 A.2d 476 (1988); Schlenk v. Northwestern Bell Tel. Co., 329 N.W.2d 605, 614 (N.D.1983).
Accordingly, the trial court's order granting the defendant's motion for summary judgment is
Affirmed.
JOHNSON and COZORT, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330664/ | 307 S.C. 56 (1992)
413 S.E.2d 841
Joan Middleton MILLER, Lennie S. Middleton, Jr., Phillip Michael Rollins, and Johnny Richard Rollins, Jr., Appellants
v.
William Gary LEAIRD and Southland Forest Products, Inc., Respondents.
23348
Supreme Court of South Carolina.
Heard December 7, 1989.
Decided January 27, 1992.
Reh. Den. February 19, 1992.
*57 *58 H.F. Bell and Stephen C. Wallace, Chesterfield, for appellants.
James I. Redfearn, Chesterfield, for respondent William Gary Leaird.
Robert Wilson Davis, Kershaw, for respondent Southland Forest Products, Inc.
ON REHEARING
This matter is before the Court on Respondent William Gary Leaird's petition for rehearing on this Court's reversal of the judgment of the special referee. Miller v. Leaird, Op. No. 23348 (S.C. Sup. Ct. Filed Feb. 11, 1991). We grant respondent's petition.
Respondent contends that creation of a life estate does not suspend the running of the statutory periods for the forty-year lapse statute or the ten-year lapse statute for presumption of grant or adverse possession. We agree.
Upon reconsideration after careful review of petitioner's motion for rehearing and the record, without oral argument or briefs, we set aside Opinion No. 23348 and submit the following in lieu thereof.
Heard Dec. 7, 1989; Decided Jan. 27, 1992.
Reh. Den. Feb. 19, 1992.
Per Curiam:
This is an appeal from the judgment of a special referee in an action for trespass to try title. The referee held that Respondent William Gary Leaird (Leaird) had established title to the disputed property under S.C. Code Ann. §§ 15-3-380 and XX-XX-XXX (1976) and by acquiescence. We affirm.
Appellants Joan Middleton Miller, Lennie S. Middleton, Jr., Phillip Michael Rollins, and Johnny Richard Rollins, Jr., commenced this action in 1987 alleging that Respondents Leaird and Southland Forest Products, Inc. (Southland) had trespassed upon, cut and removed timber from land belonging to *59 the appellants. Appellants sought to have the court declare them legal owners of the disputed property, award damages, and grant injunctive relief.
Leaird asserted the defenses of the forty-year lapse statute, the ten-year adverse possession statute, acquiescence as to the boundary line, and estoppel. Leaird also counterclaimed alleging trespass by the appellants, for which he sought damages and injunctive relief. Southland answered by general denial and filed a cross-claim against Leaird.[1]
This case involves a fifteen (15) acre tract of land in Chesterfield County. Appellants' title derive from W.C. Raley, who was deeded two hundred and one (201) acres on June 5, 1905, by D.G. graham. Out of this 201 acre tract, on December 11, 1908, W.C. Raley deeded to appellants' predecessor in title, W.R. Hendricks, the 15 acres now in dispute. On December 12, 1913, W.R. Hendricks conveyed to E.H. Melton sixty-eight (68) acres, consisting of the disputed 15 acres and a fifty-three (53) acre tract. Thereafter, all deeds in appellants' chain of title refer to a 68 acre tract of land. In 1938, W.L. Jordan deeded the 68 acres to C.W. Jordan (C.W.). C.W. died in 1968 and his wife, Louise Jordan (Louise), received the 68 acres under C.W.'s will. Louise conveyed the 68 acres to the appellants in 1975, retaining a life estate unto herself. Louise died in 1987.
Respondents also trace their title back to W.C. Raley, whose heirs deeded Leaird's predecessor in title, L.E. Raley, one hundred and eighty-five (185) acres of land in 1915. In 1941, one of Leaird's predecessors in title, C.M. Jordan, was deeded a three hundred and thirty-five (335) acre tract consisting of the 185 acres from the common source and another one hundred and fifty (150) acre tract. Leaird was eventually deeded these 335 acres. The deed to this 335 acre tract incorporated a plat by Will Clark, Land Surveyor, dated April 14, 1941, and recorded July 7, 1941. Leaird's chain of title subsequent to 1941 shows boundaries in accordance with the Clark plat, which has been referenced in each deed and mortgage of *60 the respondent's chain of title since that time. The Clark plat shows, as part of the 335 acres owned by Leaird, the 15 acre tract which is the subject of this litigation.
The referee held that the respondent had satisfied the ten-year adverse possession statute, S.C. Code Ann. § 15-67-220 (1976).[2] Moreover, the referee found that forty-six years had elapsed between the date of the deed and plat of 1941 and the time when this action was instituted in 1987. Thus, Leaird had been in possession of the fifteen-acre tract for a period in excess of forty years as provided by S.C. Code Ann. § 15-3-380 (1976).[3] The referee found that respondent had shown that the line established by him had been acquiesced in and considered to be the property line between the parties for the applicable period.
Appellants alleged their record title is valid, that they and their predecessors in title have been in actual and constructive possession of the premises since 1908, and that there is a legal presumption for possession in their favor. Appellants claim no evidence was adduced before the referee to warrant the finding that Leaird obtained title by adverse possession or acquiescence. Appellants contend further that both the ten-year and forty-year statutory periods for adverse possession were suspended in 1975 by the creation of Louise Jordan's life estate.
*61 The respondent asserts that since 1941, he has been in actual, open, notorious, hostile, continuous and exclusive possession and has held a continuous, unbroken chain of title to the fifteen acres in question, entitling him to ownership under S.C. Code Ann. §§ 15-3-380 and 15-67-210 (1976), and by acquiescence.
An action of "trespass to try title" puts the title in issue and a finding determines not only the issue of trespass, but also of title. Little v. Little, 223 S.C. 332, 75 S.E. (2d) 871 (1953). Because an adverse possession claim is an action at law, the character of the possession is a question for the jury or fact finder. Lynch v. Lynch, 236 S.C. 612, 115 S.E. (2d) 301 (1960). Therefore, our review is limited to a determination of whether there is any evidence reasonably tending to support the referee's findings. Knight v. Hilton, 224 S.C. 452, 79 S.E. (2d) 871 (1954).
A plaintiff's title by adverse possession requires proof of actual, open, notorious, hostile, continuous, and exclusive possession by the claimant, or by one or more persons through whom he claimed, for the full statutory period. Crotwell v. Whitney, 229 S.C. 213, 92 S.E. (2d) 473 (1956). Adverse possession is an affirmative defense, and the burden of proof is upon the party relying thereon. Weston v. Morgan, 162 S.C. 177, 160 S.E. 436, 445 (1931).
Possession is presumed to follow the legal title to land. Knight v. Hilton, supra. However, the mere possession of land does not in and of itself show hostility to the owner. "Indeed, there is every presumption that such an occupancy is in subordination to the legal title." Hilton, 224 S.C. at 456, 79 S.E. (2d) at 873. The South Carolina Code of Laws provides as follows:
In every action for the recovery of real property or the possession thereof the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law. The occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title unless it appear that such premises have been held and possessed adversely to such legal title for ten years before the commencement of such action. *62 S.C. Code Ann. § 15-67-210 (1976).
In order for Leaird to maintain this action, he must rebut appellants' presumption of possession by proof of adverse possession; and such proof must be by clear and convincing evidence. Zinnerman v. Williams, 211 S.C. 382, 45 S.E. (2d) 597 (1947). We conclude that there is evidence in this record to support the referee's finding that Leaird has carried his burden of proof.
Leaird presented evidence that he and his predecessors paid the mortgages on the property, paid taxes on the property, and marked the boundary lines of the disputed property for the statutory periods. Moreover, there is evidence that Leaird sold timber cut from the disputed property. Hence, we are persuaded that the plat, deeds, wills, mortgages and sale of timber establish that Leaird had acquired this property by adverse possession.
Appellant also asserts that any evidence of adverse possession is negated by the creation of a life estate and remainder. We disagree.
It is well established that adverse possession does not run against a remainderman until the death of the life tenant. Phipps v. Hardwick, 273 S.C. 17, 253 S.E. (2d) 506 (1979). Similarly, presumption of grant will not be acquired against a remainderman who is unable to assert his rights until an intervening life estate is extinguished and the remainderman is entitled to possession. See Phipps v. Hardwick, supra; 10 S.C.L.Q. 292, 302 (1958) (citing Bolt v. Sullivan, 173 S.C. 24, 174 S.E. 491 (1934)). However, once the statute of limitations has commenced to run, no subsequent disability will arrest it. Milton v. Pace, 85 S.C. 373, 67 S.E. 458 (1910); Sutton v. Clark, 59 S.C. 440, 38 S.E. 150 (1901).
In Kubiszyn v. Bradley, 292 Ala. 570, 298 So. (2d) 9 (1974), the Alabama Supreme Court held that once the statutory period for adverse possession commences to run against a landowner, the running of the statutory period is not suspended by the subsequent creation of a life estate and remainders in the property. In accord with the Bradley Court is the Restatement of the Law of Property, which states in pertinent part:
Where the period of the statute of limitations or the period *63 of prescription has commenced to run against the owner of an estate in land who thereafter transfers all or part of his ownership in such a way as to create a future interest therein, such period is computed against the owner of the future interest so created in the manner as it would have been computed against the transferor had there been no transfer.
Restatement of Property, § 226 (1936).
Accordingly, we hold that once the statutory period for adverse possession is activated, the subsequent creation of a life estate will not suspend the running of such period. The findings of the special referee are affirmed. Appellants' remaining exceptions are disposed of pursuant to Supreme Court Rule 23.
Affirmed.
GREGORY, C.J., not participating.
NOTES
[1] Southland is a party to this action by virtue of a timber deed from Leaird to Southland. Since the referee found that Leaird had established title to the disputed property, Southland's cross-claim was moot and Southland is not a party to this appeal. In the event appellants prevail, Southland has reserved the right to have the case remanded for consideration of its cross-claim.
[2] S.C. Code Ann. § 15-67-220 (1976). Effect of occupation under written instrument or court decree or judgment.
Whenever it shall appear (a) that the occupant or those under whom he claims entered into the possession of premises under claim of title, exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises in question or upon the decree or judgment of a competent court and (b) that there has been a continued occupation and possession of the premises, or of some part of such premises, included in such instrument, decree or judgment under such claim for ten years, the premises so included shall be deemed to have been held adversely, except that when the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract.
[3] S.C. Code Ann. § 15-3-380 (1976). Effect of forty-year lapse.
No action shall be commenced in any case for the recovery of real property or for interest therein against a person in possession under claim of title by virtue of a written instrument unless the person claiming, his ancestor or grantor, was actually in the possession of the same or a part thereof within forty years from the commencement of such action. And the possession of a defendant, sole or connected, pursuant to the provisions of this section shall be deemed valid against the world after the lapse of such a period. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330815/ | 413 S.E.2d 169 (1991)
The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR, Complainant,
v.
Richard HESS, a Member of the West Virginia State Bar, Respondent.
No. 20225.
Supreme Court of Appeals of West Virginia.
Submitted September 17, 1991.
Decided December 19, 1991.
*170 Sherri D. Goodman, West Virginia State Bar, Charleston, for complainant.
*171 Allan H. Masinter, Charleston, for respondent.
MILLER, Chief Justice:
In this disciplinary proceeding, the Committee on Legal Ethics of the West Virginia State Bar (Committee) asks us to suspend Richard Hess's license to practice law for a period of two years and charge him costs of $694.41 for the expense of conducting the disciplinary proceedings. For the reasons stated below, we accept this recommendation of the Committee.
In 1985, Mr. Hess was a partner in the law firm of Lewis, Ciccarello & Friedberg in Charleston, West Virginia. In August of that year, unknown to his firm, he opened a settlement account for his real estate transactions which was separate from the client trust account of the firm. This account was opened in the name of "Richard H. Hess, Settlement Agent." Mr. Hess had complete control of this account (hereinafter "the Hess Account"), making all deposits and disbursements as well as keeping the books for the account. In July of 1986, Mr. Hess converted this account to an interest-bearing account without notifying or getting permission from the firm.
In June, 1989, the firm decided to audit its client trust accounts, including the Hess Account. Mr. Hess objected to the audit of his account, but ultimately turned over the books and allowed the audit to proceed. The auditor determined that the Hess Account had earned $10,304.75 in interest, of which Mr. Hess had withdrawn $6,189.25 and deposited it into his personal account. Mr. Hess had also written checks to himself on the account in the amount of $16,759.97. These funds, which had been designated as legal fees, were deposited in Mr. Hess's personal account instead of the firm's business account. As a result of these revelations, Mr. Hess resigned from the law firm in September, 1989.
The Committee contends that Mr. Hess's conduct constitutes a violation of DR 1-102(A)(4) and (6) of the Code of Professional Responsibility, which prohibit conduct involving dishonesty or fraud and conduct adverse to the fitness to practice law. Its parallel is now found in Rule 8.4 of the Rules of Professional Conduct.[1]
Implicit in our consideration of disciplinary actions recommended by the Committee is our traditional rule regarding the Committee's burden of proof, which is expressed in Syllabus Point 1 of Committee on Legal Ethics v. Smith, 184 W.Va. 6, 399 S.E.2d 36 (1990):
"`In a court proceeding prosecuted by the Committee on Legal Ethics of the West Virginia State Bar for the purpose of having suspended the license of an attorney to practice law for a designated period of time, the burden is on the Committee to prove by full, preponderating and clear evidence the charges contained in the complaint filed on behalf of the Committee.' Syllabus Point 1, Committee on Legal Ethics v. Lewis, 156 W.Va. 809, 197 S.E.2d 312 (1973)."
See also Syllabus Point 1, Committee on Legal Ethics v. Higinbotham, 176 W.Va. 186, 342 S.E.2d 152 (1986); Syllabus Point 1, Committee on Legal Ethics v. Tatterson, 173 W.Va. 613, 319 S.E.2d 381 (1984).
We find that the Committee has met its burden and that Mr. Hess's actions clearly constituted conduct involving dishonesty, fraud, deceit, and misrepresentation. He deceived and misrepresented to *172 his partners, either directly or by his failure to disclose, the nature of the Hess Account. He also took money which clearly was not his and converted it to his own use.
Mr. Hess attempts to characterize his conversion of the funds as an internal business disagreement. There is nothing in the record to reflect this. It was not until the audit was made that his partners became aware of his conduct. This is not a situation where there is a bona fide dispute as to whether, under the firm's past practice, the funds converted were authorized.
Mr. Hess also maintains that his capital account in the firm was such that if the funds converted were credited to it, he would have had a positive balance compared to some of the partners who had a negative balance. The issue here is not the partnership capital account, but is the fact that monies were taken without the knowledge or authorization of the partnership.
The fact that Mr. Hess believed that he had been unfairly treated by his partners in the allocation of the firm's profits neither justifies nor mitigates his action. To hold otherwise would allow each person in a partnership to set his or her salary without regard to the partnership arrangement. Moreover, it would ignore the general rule recognizing that in a partnership, the partners occupy a fiduciary relationship with each other which requires them to deal with each other in the utmost good faith. See 59A Am.Jur.2d Partnership § 420 (1987). We recognized this rule in Syllabus Point 1, in part, of Zogg v. Hedges, 126 W.Va. 523, 29 S.E.2d 871 (1944):
"The utmost good faith and fair dealing must be exercised toward each other by ... partners, not only after the partnership has been formed, but also during negotiations leading thereto." See also Barker v. Smith & Barker Oil & Gas Co., 170 W.Va. 502, 294 S.E.2d 919 (1982).
Throughout the respondent's argument is the implication that because no clients have suffered any particular loss, there is no disciplinary violation. Courts have held that standards of professional conduct are applicable to an attorney's relationship with his or her firm. If a lawyer converts firm monies to his or her own use without authorization, the attorney is subject to a disciplinary charge. Such conduct obviously reflects a dishonest and deceitful nature which violates the general precept that an attorney should avoid dishonesty or deceitful conduct.
In Kaplan v. State Bar of California, 52 Cal. 3d 1067, 278 Cal. Rptr. 95, 804 P.2d 720 (1991), the California Supreme Court disbarred an attorney who had converted $29,000 of firm monies to his personal account. The court found his actions violated the canon against dishonesty and concealments because they were "part of a purposeful design to defraud his partners." 52 Cal.3d at 1071, 278 Cal.Rptr. at 98, 804 P.2d at 98. As in the present case, the attorney in Kaplan had reimbursed his partners and, at their urging, had reported his conduct to the State Bar.
In Attorney Grievance Commission v. Ezrin, 312 Md. 603, 541 A.2d 966 (1988), the attorney had converted $200,000 of his firm's money to his personal use. He was charged under canons similar to ours for conduct involving dishonesty, fraud, deceit, or misrepresentation in the administration of justice. The Supreme Court of Maryland stated: "Misappropriation of funds by an attorney involves moral turpitude; it is an act infected with deceit and dishonesty and will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction." 312 Md. at 608-09, 541 A.2d at 969. (Citations omitted). The court refused to find that the attorney's "general good character, his excellent reputation as a lawyer, lack of prior misconduct, his restitution of the stolen funds, and his cooperation with the authorities... constitute[] compelling extenuating circumstances[.]" 312 Md. at 609, 541 A.2d at 969. (Citation omitted). Other courts have come to the conclusion, without any elaborate discussion, that the conversion of partnership funds is a disciplinary violation. See People v. Navran, 174 Colo. 222, 483 P.2d 228 (1971); Committee on Professional Ethics & Conduct v. Piazza, *173 405 N.W.2d 820 (Iowa 1987); In re Petition for Disciplinary Action Against Ladd, 463 N.W.2d 281 (Minn.1990).
Although not couched directly as a mitigating circumstance, we are reminded that Mr. Hess has repaid the funds to his firm. We have indicated in several cases that the repayment of funds wrongfully held by an attorney does not negate a violation of the disciplinary rule. See, e.g., Committee on Legal Ethics v. Woodyard, 174 W.Va. 40, 321 S.E.2d 690 (1984); Committee on Legal Ethics v. Pence, ____ W.Va. ____, 216 S.E.2d 236 (1975). We did recognize in Committee on Legal Ethics v. White, 176 W.Va. 753, 349 S.E.2d 919 (1986), that restitution of funds wrongfully taken by an attorney may in some instances mitigate the disciplinary punishment imposed.[2] However, we went on to state in White that "[a]ny rule regarding mitigation of the disciplinary punishment because of restitution must be governed by the facts of the particular case." 176 W.Va. at 759, 349 S.E.2d at 926. In White, the attorney had concealed his misappropriation of funds from his cotrustee for two and one-half years. After the cotrustee hired an attorney, Mr. White then repaid the funds. We declined to consider the repayment as a mitigating factor.
In the present case, the concealment lasted approximately four years. When the audit of the Hess Account was first proposed, Mr. Hess initially resisted, but ultimately consented. It was not until sometime after the audit that Mr. Hess reimbursed the firm. Under these circumstances, we decline to consider the repayment of the funds as a mitigating factor.
Mr. Hess asserts that he ceased practicing law in 1989. Under these circumstances, and in view of the severity of the offense, we believe that the recommended two-year suspension should begin upon the date of the mandate of this opinion. This will be equivalent to a four-year suspension. The costs of the Committee are to be paid by the respondent.
Two-year suspension and costs.
NOTES
[1] During most of the time that Mr. Hess was converting the partnership funds, the Code of Professional Responsibility was applicable. DR 1-102(A)(4) and (6) provided:
DR 1-102 Misconduct. (A) A lawyer shall not:
* * * * * *
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
* * * * * *
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
The Rules of Professional Conduct became effective on January 1, 1989. Rule 8.4 provides, in pertinent part:
RULE 8.4 Misconduct
"It is professional misconduct for a lawyer to:
* * * * * *
"(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
"(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]"
[2] In White, we referred to our mitigation discussion in Committee on Legal Ethics v. Tatterson, 173 W.Va. 613, 619-20, 319 S.E.2d 381, 387-88 (1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2756415/ | Affirmed and Memorandum Opinion filed December 2, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00104-CR
NO. 14-14-00105-CR
NO. 14-14-00106-CR
GEORGE WILHELM VOGEL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Court Cause No. 13-04-04450 CR
MEMORANDUM OPINION
Appellant appeals his convictions for three counts of aggravated sexual
assault of a child. Appellant’s appointed counsel filed a brief in which he
concludes the appeals are wholly frivolous and without merit. The brief meets the
requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a
professional evaluation of the record and demonstrating why there are no arguable
grounds to be advanced. See High v. State, 573 S.W.2d 807, 811–13 (Tex. Crim.
App. 1978).
A copy of counsel’s brief was delivered to appellant. Appellant was advised
of the right to examine the appellate record and file a pro se response. See Stafford
v. State, 813 S.W.2d 503, 512 (Tex. Crim. App. 1991). Appellant received the
record on July 30, 2014, and received two extensions of time to file a pro se
response. As of this date, pro se response has been filed.
We have carefully reviewed the record and counsel’s brief and agree the
appeals are wholly frivolous and without merit. Further, we find no reversible error
in the record. We are not to address the merits of each claim raised in an Anders
brief or a pro se response when we have determined there are no arguable grounds
for review. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005).
Accordingly, the judgment of the trial court is affirmed.
PER CURIAM
Panel consists of Justices McCally, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
2 | 01-03-2023 | 12-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1645960/ | 9 So.3d 619 (2009)
JURKOWICH
v.
JURKOWICH.
No. 1D09-1764.
District Court of Appeal of Florida, First District.
May 21, 2009.
Decision without published opinion. Habeas Corpus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262787/ | 84 Cal.Rptr.2d 43 (1999)
71 Cal.App.4th 782
SAFECO INSURANCE COMPANY of America, Petitioner,
v.
The SUPERIOR COURT of Contra Costa County, Respondent;
Marianne McKinney et al., Real Parties in Interest.
No. A084765.
Court of Appeal, First District, Division Five.
April 8, 1999.
Rehearing Denied May 7, 1999.
*44 William H. Staples, W. Eric Blumhardt, and Archer, McComas, Breslin, McMahon & Chritton, Walnut Creek, for Petitioner.
No appearance for Respondent.
Curtis L. Johnson, Antioch, Counsel for Respondent/Real Parties in Interest.
STEVENS, J.
The question before us in this writ proceeding is whether petitioner, Safeco Insurance Company of America (Safeco), is obligated to pay a stipulated judgment entered into by its insureds without Safeco's consent when Safeco had undertaken a defense of the liability action. We conclude that Safeco is not bound by the stipulated judgment, and we grant Safeco's petition for a writ of mandate to compel the trial court to grant its motion for summary judgment.
I. BACKGROUND
The underlying action was a wrongful death action brought by the McKinney family, real parties in interest, after Patrick McKinney was shot and killed while driving his truck. The defendants in that wrongful death action included the teenage shooter (Matthew Espinal), the teenage driver of a second car (Greg Van Huisen) accompanying the car driven by the shooter, and the parents of Greg Van Huisen (Paul and Deborah Read) at whose house all the defendant youths had been drinking that night.[1]
Safeco insured the Reads under a homeowners policy, and although the policy excludes injuries arising from the use of a motor vehicle, Safeco agreed to defend the Reads subject to a reservation of rights. Mercury Casualty Company insured the Reads plus Greg Van Huisen under an automobile policy, and Mercury, too, agreed to defend. Each insurance company retained separate counsel who acted as cocounsel in the case.
In 1995, the Reads and Van Huisen stipulated to a judgment in favor of the McKinneys in the amount of $645,000. The stipulation contained admissions of liability by Van Huisen and the Reads: that Van Huisen had *45 been tailgating Patrick McKinney and may have contributed to his death, and that the Reads had not supervised the consumption of alcohol in their home and had negligently entrusted their automobile to Van Huisen.
The stipulation provided that $145,000 was to be paid by Mercury, and the Reads assigned to the McKinneys all their rights under the Safeco policy. The McKinneys agreed not to execute against the Reads or Van Huisen in excess of $145,000, and they further agreed that the judgment against the Reads and Van Huisen would be expunged after the McKinneys had resolved their claims against Safeco.
The present lawsuit is an action by the McKinneys against Safeco seeking to recover the $500,000 liability limit on the Safeco policy pursuant to the stipulated judgment. The McKinneys' lawsuit is based upon two theories direct recovery from the insurer pursuant to Insurance Code section 11580 and damages for the insurer's bad faith based upon the assignment of rights from the Reads. Safeco moved for summary judgment, seeking a determination that Safeco has no obligation to pay the stipulated judgment. The motion was denied, and Safeco now seeks a writ of mandate to compel the trial court to grant summary judgment. Real parties in interest submitted opposition to the petition, and we issued an alternative writ.
II. DISCUSSION
A. Direct Action
An injured third party claimant has a statutory right to bring a direct action against the tortfeasor's liability insurer as long as there is a judgment against the insured. (Ins.Code, § 11580, subd. (b)(2).) This requirement of a judgment against the insured is reflected in the standard "no action" provision of a liability insurance policy. Here, Safeco's policy provided: "[N]o action... shall be brought against us until the obligation of the insured has been determined by final judgment or agreement signed by us." The first question we must decide is whether the stipulated judgment entered into by the Reads without Safeco's consent qualifies as a judgment for purposes of recovery under Insurance Code section 11580. We conclude it does not.
The "no action" clause gives the insurer the right to control the defense of the claimto decide whether to settle or to adjudicate the claim on its merits. (Clark v. Bellefonte Ins. Co. (1980) 113 Cal.App.3d 326, 335, 169 Cal.Rptr. 832.) When the insurer provides a defense to its insured, the insured has no right to interfere with the insurer's control of the defense, and a stipulated judgment between the insured and the injured claimant, without the consent of the insurer, is ineffective to impose liability upon the insurer. (Wright v. Fireman's Fund Ins. Companies (1992) 11 Cal.App.4th 998, 1024, 14 Cal.Rptr.2d 588; see Pruyn v. Agricultural Ins. Co. (1995) 36 Cal.App.4th 500, 515-516, 42 Cal.Rptr.2d 295.) "[T]he potential for abuse [is] apparent in a situation where an insurer, in the absence of a breach Of its duty to its insured, could be bound by a consent judgment of this nature." (Wright v. Fireman's Fund Ins. Companies, supra, 11 Cal.App.4th at p. 1019, 14 Cal.Rptr.2d 588; see also Doser v. Middlesex Mutual Ins. Co. (1980) 101 Cal.App.3d 883, 893-894, 162 Cal. Rptr. 115.) Even a stipulated judgment negotiated with the help of the insured's independent Cumis[2] counsel is not binding on the insurer without its consent. (Rose v. Royal Ins. Co. (1991) 2 Cal.App.4th 709, 717-718, 3 Cal.Rptr.2d 483.)
On the other hand, if the insurer wrongfully refuses to defend, leaving the insured to his own resources to provide a defense, then the insurer forfeits the right to control settlement and defense. In that event, the insured is free to settle the lawsuit on his own, and the insurer is bound by a stipulated judgment. (Isaacson v. California Ins. Guarantee Assn. (1988) 44 Cal.3d 775, 791-792, 244 Cal.Rptr. 655, 750 P.2d 297; Samson v. Transamerica Ins. Co. (1981) 30 Cal.3d 220, 240-241, 178 Cal.Rptr. 343, 636 *46 P.2d 32; Sanchez v. Truck Ins. Exchange (1994) 21 Cal.App.4th 1778, 1784, 1786, 26 Cal.Rptr.2d 812; see Pruyn v. Agricultural Ins. Co., supra, 36 Cal.App.4th at p. 515, 42 Cal.Rptr.2d 295; Diamond Heights Homeowners Assn. v. National American Ins. Co. (1991) 227 Cal.App.3d 563, 581, 277 Cal.Rptr. 906.)
In the present case, Safeco indisputably provided a defense and, accordingly, had the right to control that defense and to decide on its own whether or not to settle. The Reads had no authority to settle the matter without the consent of Safeco; the stipulated judgment between the McKinneys and the Reads is unenforceable against Safeco.
B. Bad Faith Refusal to Settle
Of course, an insurer is required to act in good faith in dealing with its insured. Thus, in deciding whether or not to settle a claim, the insurer must take into account the interests of the insured, and when there is a great risk of recovery beyond the policy limits, a good faith consideration of the insured's interests may require the insurer to settle the claim within the policy limits. An unreasonable refusal to settle may subject the insurer to liability for the entire amount of the judgment rendered against the insured, including any portion in excess of the policy limits. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658-661, 328 P.2d 198.)
When, as here, the insurer is providing a defense but merely refuses to settle, the insured has no immediate remedy. A cause of action for bad faith refusal to settle arises only after a judgment has been rendered in excess of the policy limits. (Finkelstein v. 20th Century Ins. Co. (1992) 11 Cal.App.4th 926, 929-930, 14 Cal.Rptr.2d 305; Doser v. Middlesex Mutual Ins. Co. supra 101 Cal. App.3d at pp. 891-892, 162 Cal.Rptr. 115; Brown v. Guarantee Ins. Co. (1957) 155 Cal. App.2d 679, 690, 319 P.2d 69; but see Camelot by the Bay Condominium Owners' Assn. v. Scottsdale Ins. Co. (1994) 27 Cal.App.4th 33, 48, 32 Cal.Rptr.2d 354 [dictum: bad faith may arise even without an excess judgment, though excess judgment is relevant to determination of damages].) If the insurer declines to settle and decides to go to trial and then obtains a judgment below the settlement offer or obtains a complete defense verdict, then the insured would have no
cause to complain, and the insurer would have no liability. Until judgment is actually entered, the mere possibility or probability of an excess judgment does not render the refusal to settle actionable.[3] (Finkelstein v. 20th Century Ins. Co., supra, at pp. 929-930, 14 Cal. Rptr.2d 305; Doser v. Middlesex Mutual Ins. Co., supra, at pp. 891-892,162 Cal.Rptr. 115; see Critz v. Farmers Ins. Group (1964) 230 Cal.App.2d 788, 799, 41 Cal.Rptr. 401, disapproved on other grounds in Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 432, 58 Cal.Rptr. 13, 426 P.2d 173.)
The insured's remedy to protect himself from an excess judgment is to assign to the claimant his cause of action for bad faith refusal to settle in exchange for a covenant not to enforce the judgment against the insured's personal assets. (Smith v. State Farm Mut. Auto. Ins. Co. (1992) 5 Cal. App.4th 1104, 1110-1112, 7 Cal.Rptr.2d 131.) This assignment, however, is not immediately assertable, and it does not settle the third party's claim. As long as the insurer is providing a defense, the insurer is allowed to proceed through trial to judgment. The assignment of the bad faith cause of action becomes operative after the excess judgment has been rendered. (Critz v. Farmers Ins. Group, supra, 230 Cal.App.2d at p. 799, 41 Cal.Rptr. 401.)[4]
*47 In the present case, then, the McKinneys' assigned bad faith cause of action does not now support a direct action. Because we find that Safeco was providing a defense to the Reads, Safeco was entitled to control the defense and to decide whether to litigate the McKinneys' claim. If Safeco's decision to go to trial had resulted in a verdict above the policy limits, then Safeco's refusal to settle, if found to be unreasonable, could have rendered it liable for the full amount of the verdict. But until a litigated excess judgment is obtained, Safeco's refusal to settle is not actionable.
C. Adequacy of Representation
In denying Safeco's motion for summary judgment, the trial court found triable issues of fact on whether Safeco had, by the manner in which its retained counsel handled the defense of the McKinney action, essentially abandoned the Reads, leaving them with no defense. In particular, real parties (the McKinneys) asserted that the attorney retained by Safeco did nothing to prepare for trial. He undertook no investigation, retained no experts, and made no assessment of the damages or the risk of a verdict above the policy limits. He took no depositions of the McKinneys' experts. Nor did he move for summary adjudication of any issues that could have minimized the Reads' exposure. He also failed to participate in the voluntary settlement conference. Safeco disputed at least some of those facts in its moving papers, asserting that the attorney was preparing to litigate the matter.
Safeco persuasively argues that the insurer's right to control the defense cannot be denied simply because the insured disagrees with the insurer's decision not to settle or because the insured believes the defense is being poorly handled. Safeco acknowledges that if an insurer's decision to litigate results in an excess judgment then the insured (or the claimant under an assignment of rights) may recover damages in a bad faith action. However, Safeco asserts that neither the adequacy of the representation nor the effectiveness of the defense are relevant to the question whether the insured can enter into a binding settlement without the insurer's consent. We agree.
Although there is language in Pruyn v. Agricultural Ins. Co., supra, 36 Cal.App.4th at pages 515, 517, 42 Cal.Rptr.2d 295, indicating that the insured is free to settle if he has been "abandoned" by the insurer, that language was applied in the context of the insurer's complete refusal to defend, leaving the insured exposed to the possibility of a default judgment.[5] (See also Camelot by the Bay Condominium Owners' Assn., Inc. v. Scottsdale Ins. Co., supra, 27 Cal.App.4th at p. 50, 32 Cal.Rptr.2d 354; Johnson v. Continental Ins. Companies (1988) 202 Cal.App.3d 477, 486, 248 Cal.Rptr. 412.)
In contrast, Safeco did not walk away from its duty to defend its insured. Rather, Safeco agreed to undertake the defense and retained counsel to represent the Reads. The attorney retained by Safeco filed an answer, thereby protecting the Reads from a default judgment, and it is undisputed that the attorney for Mercury was taking the lead in pursuing the litigation.[6] The fact that the attorney *48 retained by Safeco took a secondary role is not surprising since Mercury's policy was an automobile policy and Safeco's homeowners policy excluded injuries from the use of an automobile.
Because Safeco was providing a defense to the Reads, Safeco was entitled to decide whether to litigate or compromise the McKinneys' claim. Unless and until an excess judgment is rendered giving rise to a possible bad faith action for Safeco's refusal to settle, the effectiveness of the representation provided by Safeco is not at issue. Safeco is entitled to judgment as a matter of law.[7]
III. DISPOSITION
Let a peremptory writ of mandate issue commanding the Contra Costa County Superior Court to set aside its order denying summary judgment, filed October 19, 1998, in McKinney v. Safeco Insurance Co. (No. C96-00523), and to enter a new and different order granting the motion.
JONES, P.J., and HANING, J., concur.
NOTES
[1] Espinal drove his car directly in front of McKinney's truck, while Van Huisen drove immediately behind McKinney, trapping him. Espinal then changed lanes, positioning his car alongside McKinney's truck. Then Espinal shot at McKinney's tires and also shot McKinney.
[2] San Diego Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358, 208 Cal. Rptr. 494.
[3] In contrast, when the insurer wrongfully refuses to defend, the insured need not wait for a final judgment on the third party claim to sue the insurer for breach of the contractual duty to defend. (See Tan Jay Internat., Ltd. v. Canadian Indemnity Co. (1988) 198 Cal.App.3d 695, 704-705, 243 Cal.Rptr. 907.)
[4] There is a split of authority on whether the assignment of a bad faith cause of action can be made before the litigated judgment is rendered. (Compare Smith v. State Farm Mut. Auto. Ins. Co., supra, 5 Cal.App.4th at pages 1112-1116, 7 Cal.Rptr.2d 131, requiring a judgment before the assignment, with Critz v. Farmers Ins. Group, supra, 230 Cal.App.2d at page 799, 41 Cal.Rptr. 401, holding that the assignment is enforceable but only becomes operative after the excess judgment is obtained.)
[5] In the present case, the trial court erroneously relied upon the framework set out in Pruyn v. Agricultural Ins. Co., supra, 36 Cal.App.4th at pages 527-530, 42 Cal.Rptr.2d 295: If the claimant in a direct action against an insurer can present evidence that the insurer wrongfully refused to defend the insured and that the insured thereafter entered into a reasonable settlement, then the burden of proof shifts to the insurer to show that the settlement was not reasonable or was the product of fraud or collusion. If the insurer cannot meet that burden, then the stipulated judgment will be binding on the insurer despite the "no action" clause in the policy.
That framework has no application here, where Safeco undertook the duty to defend. The framework of Pruyn v. Agricultural Ins. Co., supra, 36 Cal.App.4th at pages 527-528, 42 Cal. Rptr.2d 295 is based upon the rule that in an action by the insured for breach of the duty to defend, the settlement entered into by the insured on his own is presumptive evidence of the liability of the insured and the amount thereof. (Isaacson v. California Ins. Guarantee Assn., supra, 44 Cal.3d at pp. 791-792, 244 Cal.Rptr. 655, 750 P.2d 297.) That presumption, however, does not apply when the insurer provides a defense but merely refuses to settle. (Id. at pp. 792-794, 244 Cal.Rptr. 655, 750 P.2d 297.)
[6] At the time the settlement was being negotiated, counsel for Mercury was preparing a summary judgment motion on the issue of causation. The motion was never filed because the settlement was reached.
[7] In light of our conclusion that the stipulated judgment is unenforceable, we need not reach Safeco's other arguments that the stipulated judgment was a sham and that coverage is excluded under Safeco's homeowners policy exclusion for injuries arising out of the ownership, use, or entrustment of a motor vehicle. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331100/ | 188 S.E.2d 663 (1972)
14 N.C. App. 321
W. Arthur MILLSAPS and wife, Jean Millsaps, Plaintiff-Appellants,
v.
WILKES CONTRACTING COMPANY, Defendant-Appellee,
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION and Ray Spangler, Third-Party Defendant-Appellees.
No. 7230SC26.
Court of Appeals of North Carolina.
May 24, 1972.
Certiorari Denied July 31, 1972.
*664 Williams, Morris & Golding, by James W. Williams, Asheville, for plaintiff appellants.
William J. Cocke, Asheville, for defendant appellee Wilkes Contracting Company.
*665 Atty. Gen. Robert Morgan, by H. A. Cole, Jr., Asst. Atty. Gen., for the State.
Certiorari Denied by Supreme Court July 31, 1972.
BRITT, Judge.
Although a brief was filed on behalf of third-party defendants State Highway Commission and Spangler, no appeal was perfected from the summary judgment in their favor. Therefore, the question for determination is: "Did the trial court err in entering summary judgment in favor of defendant Wilkes? We hold that it did not.
In Moore v. Clark, 235 N.C. 364, 70 S.E.2d 182 (1952), opinion by Ervin, Justice, quoted with approval in State Highway Commission v. L. A. Reynolds Co., 272 N.C. 618, 624, 159 S.E.2d 198, 203 (1968), we find the following:
"A contractor who is employed by the State Highway and Public Works Commission to do work incidental to the construction or maintenance of a public highway and who performs such work with proper care and skill cannot be held liable to an owner for damages resulting to property from the performance of the work. The injury to the property in such a case constitutes a taking of the property for public use for highway purposes, and the only remedy available to the owner is a special proceeding against the State Highway and Public Works Commission under G.S. § 136-19 to recover compensation for the property taken or damaged. (Citations.) But if the contractor employed by the State Highway and Public Works Commission performs his work in a negligent manner and thereby proximately injures the property of another, he is personally liable to the owner therefor. (Citations.)"
It is thoroughly established in the instant case that defendant Wilkes was a contractor employed by the State Highway Commission to perform work incidental to the construction of a public highway. The question then arises, did defendant Wilkes perform its work in a negligent manner and thereby proximately injure the property of plaintiffs.
Negligence is never presumed from the mere fact of an accident or injury, except in the narrow class of cases to which the doctrine of res ipsa loquitur is applicable. Coakley v. Ford Motor Co., 11 N.C.App. 636, 182 S.E.2d 260 (1971), cert. den. 279 N.C. 393, 183 S.E.2d 244. Plaintiffs do not argue nor do we think that said doctrine is applicable in this case. 20 A.L.R.2d 1372, 1397 (1951).
As was said by Judge Parker in speaking for this court in Patterson v. Reid, 10 N.C.App. 22, 28, 178 S.E.2d 1, 5 (1970): "The motion for summary judgment under Rule 56 of the Rules of Civil Procedure (G.S. § 1A-1, Rule 56) is a procedure new to the courts of this State. * * * The purpose of the rule is not to resolve a disputed material issue of fact, if one exists, but to provide an expeditious method for determining whether any such issue does actually exist."
In Pridgen v. Hughes, 9 N.C.App. 635, 639-640, 177 S.E.2d 425, 428 (1970), Judge Morris, speaking for this court, said: "The burden is on the moving party to establish the lack of a triable issue of fact. The evidentiary matter supporting the moving party's motion may not be sufficient to satisfy his burden of proof, even though the opposing party fails to present any competent counter-affidavits or other materials. Griffith v. William Penn Broadcasting Co. (E.D.Pa.1945) 4 F.R.D. 475. `But if the moving party by affidavit or otherwise presents materials which would require a directed verdict in his favor, if presented at trial, then he is entitled to summary judgment unless the opposing party either shows that affidavits are then unavailable to him, or he comes forward with some materials, by affidavit or otherwise, that show there is a triable issue of material fact. He need not, of course, show that the issue would be decided in his favor. But he may not hold back his evidence until trial; he must present sufficient materials *666 to show that there is a triable issue.' Moore's, Federal Practice, 2d Ed., Vol. 6, § 56.11(3), p. 2171."
When the motion for summary judgment is supported as provided by Rule 56, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Patterson v. Reid, supra.
At the hearing on its motion for summary judgment, defendant Wilkes presented, along with other documents and materials, the affidavit of its president, J. C. Critcher, III. Pertinent parts of this affidavit are summarized as follows: In performing the contract with the State Highway Commission, defendant encountered solid rock and blasting was required to attain the correct grade specified in the contract. In blasting the rock, defendant used approved methods in general use. Plaintiffs' structure allegedly damaged was only two hundred feet from the center line of the grading and was below the grade at an angle of declivity of at least 45 degress. Any damage to the structure was done by rocks rolling down the incline. The resident engineer and inspectors of the State Highway Commission were continually on the project during construction and during the blasting and knew of the difficulties encountered.
Defendant Wilkes also presented the affidavit of Leland L. Cochrane, pertinent parts of which are summarized thusly: Mr. Cochrane is a certified blaster (licensed in certain other states) with fifteen years experience. He did the drilling to go through the rock that was blasted. Regular 40% dynamite was used to move the rock and the charges were set in the best way to avoid any damage to any property. Two State inspectors were on the job at all times during the blasting; they observed the holes drilled, the amount of charges used, were fully informed as to the blasting, and made no objections to the procedures followed. No other precautions could have been taken to prevent the damage. More holes and less dynamite than usual were used in an effort to prevent damage.
Plaintiffs argue that the entire affidavit of Cochrane and portions of the affidavit of Critcher were inadmissible; and that without said inadmissible material there is no support for the summary judgment. They contend that Cochrane's affidavit was inadmissible for the reason that it was not attached to and served with the motion for summary judgment, thus violating the sentence of Rule 56(e) providing "(s)worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." We do not think the quoted sentence or any part of Rule 56(e) has the effect of requiring that all affidavits offered at the hearing on a motion for summary judgment be attached to and served with the motion. In 5 Wake Forest Intra.L.Rev. 91 (1969), it is said: "A motion (for summary judgment) may or may not be accompanied by affidavits, and the adverse party may serve opposing affidavits prior to the day of the hearing. Rule 6(d) provides that when a motion is supported by affidavit, the affidavit shall be served with the motion. However, in view of the express provisions of Rule 56, Rule 6(d) would likely not apply to affidavits presented in support of summary judgment. In any event, subparagraph (e) of Rule 56 gives broad discretion to the court in allowing the filing of affidavits." See also 3 Barron and Holtzoff, Federal Practice and Procedure, § 1237, p. 167 (Wright ed. 1958).
The record on appeal approved by Judge Thornburg (R. p. 67) and his judgment contradict plaintiffs' contention that the Cochrane affidavit was not introduced at the hearing on defendant Wilkes's motion for summary judgment. It appears to be well established in this State that the *667 action of the judge in settling the case on appeal, when the parties cannot agree, is final and will not be reviewed on appeal. Thompson v. Williams, 175 N.C. 696, 95 S.E. 100 (1918); State v. Gooch, 94 N.C. 982 (1886).
Although there are portions of the Critcher affidavit that would be inadmissible in evidence, i. e. "damage to said structure was inevitable," "such damage could not have been avoided in the construction and grading of this highway," a substantial portion of the testimony set forth in the affidavit would be admissible and properly supports the summary judgment.
We think defendant Wilkes carried its burden in establishing the lack of a triable issue of fact. It was then up to plaintiffs to set forth specific facts showing a genuine issue for trial. Pridgen v. Hughes, supra. With respect to negligence plaintiffs' amended complaint alleges only that defendant through blasting operations caused boulders, rocks, and debris to be hurled and deposited upon structures and property of plaintiffs; that the destruction was caused exclusively by the negligence of defendant Wilkes by conducting blasting in close proximity to plaintiffs' property, knowing such blasting would cause damage and failing to take necessary precautions. Other than the bare allegations of the amended complaint which give no specific facts as to the negligence of defendant Wilkes there is the supporting affidavit of Posey Waldroup, a blaster with 38 years of experience, who merely states that in his opinion the construction of the road could have been done without major damages to plaintiffs' property as far as blasting or construction is concerned.
The amended complaint and Waldroup's affidavit do not sufficiently allege specific facts showing a genuine issue for trial. G.S. § 1A-1, Rule 56(e). Plaintiffs failed to set forth any specific acts or omissions on the part of defendant Wilkes that would constitute actionable negligence. If the same evidence which was presented to Judge Thornburg had been presented at a trial of this action, defendant Wilkes would have been entitled to a directed verdict; that is the test in determining if a moving party is entitled to summary judgment. Pridgen v. Hughes, supra.
For the reasons stated, the judgment appealed from is
Affirmed.
CAMPBELL and GRAHAM, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331102/ | 212 Va. 856 (1972)
LOUIS ELGIN VANLANDINGHAM
v.
EUNICE B. VANLANDINGHAM, ADMINISTRATOR OF THE ESTATE OF CARROLL JETT VANLANDINGHAM, SR., DECEASED.
Record No. 7671.
Supreme Court of Virginia.
April 24, 1972.
Present, All the Justices.
1. Instruction, approved in prior cases, disapproved. Driver does not have duty to be able to stop his car within range of his vision.
2. It is only in those rare instances when plaintiff is physically incapacitated that we have a "helpless plaintiff" within the meaning of the last clear chance doctrine.
Error a judgment of the Circuit Court of Northumberland County. Hon. Dixon L. Foster, judge presiding.
Rufus G. Coldwell, Jr. (Browder, Russell, Little & Morris, on brief), for plaintiff in error.
C. Jackson Simmons; James C. Breeden (Dunton, Simmons & Dunton, on brief), for defendant in error.
HARMAN
HARMAN, J., delivered the opinion of the court.
Louis Elgin Vanlandingham (Elgin) appeals from a final order awarding a judgment on a jury verdict for $20,000.00 to the plaintiff, Eunice B. Vanlandingham (Eunice), administrator of the estate of Carroll Jett Vanlandingham (Carroll), deceased, in an action for the wrongful death of Carroll. *857
We granted a writ of error limited to a consideration of whether the trial court erred in granting instructions 5 and 8.
Carroll was killed in an accident which occurred around 9:00 p.m. on December 9, 1968, approximately three tenths of a mile west of Callao on U.S. Route 360. The road was a two-lane blacktop highway with a speed limit of 55 miles per hour. Carroll was riding in the right front seat of a car driven by Funice. Eunice, who had been traveling west, turned left into a private driveway on the south side of Route 360. Her purpose was to back her car onto the highway and to reverse her direction of travel to return east toward Callao.
Eunice testified that she stopped in the driveway, looked both ways and saw no lights of oncoming traffic. It was only after she backed onto Route 360 that she first saw the lights of Elgin's eastbound car which struck her car almost instantly. She testified that her view to the west, from whence Elgin came, was from one quarter to three quarters of a mile. [1] She attributed her failure to see the lights of Elgin's car sooner to the fact that Elgin was traveling at a high rate of speed. She described Elgin's lights as "flying" or "floating." She further testified "I attempted to get out of the road. I put my car in drive, but I couldn't get out of the way."
Eunice testified that Carroll, who was looking west prior to and at the time she commenced backing into the highway, apparently did not see Elgin's car as he said nothing to her.
Mary Jean Winder, who was riding with Elgin, was called as a witness by the attorneys for Carroll's estate. She testified that she and Elgin had been together since early afternoon. They had both been drinking beer and eggnog. She testified Elgin's speed to be approximately 70 miles per hour when she first saw the lights on Eunice's car. She testified that the cars collided but her testimony does not disclose how much time elapsed from the time she saw Eunice's lights to the time of the crash.
Elgin testified he was driving east at approximately 50 to 55 miles per hour when Eunice's car "just popped up there. I never seen any headlights or nothing. It just came out of nowhere . . . It was crossways in the road." He did not have time to apply his brakes but "swerved a little way to the left. Wasn't no way I could get around her." *858
The court, at the plaintiff's request, granted Instruction No. 5. [2] In so doing the trial court erred.
"The Court Instructs The Jury That:"
"It is the duty of all persons using the highways to exercise ordinary care to keep their vehicles under proper control at all times having due regard for the conditions, width and surface of the highway; and if you believe from a preponderance of the evidence that the defendant immediately before or at the time of the collision, was operating his car in such way and manner that he could not stop his car after he saw, or in the exercise of reasonable care should have seen, the plaintiff's car, then he was negligent."
"And if you further believe from such evidence that any such negligence was a proximate cause of the collision, then, unless the plaintiff was guilty of negligence which proximately contributed to cause the collision, you shall find your verdict in favor of the plaintiff."
While the language of the instruction has been approved by us in several cases, including Twyman Adkins, 168 Va. 456, 191 S.E. 615 (1937), Body, Fender & Brake Corp. Matter, 172 Va. 26, 200 S.E. 589 (1939) and Roberts Mundy, 208 Va. 236, 156 S.E.2d 593 (1967), further consideration convinces us that this instruction is not only misleading and confusing but that it is not a correct statement of the law.
The fatal vice in the instruction is that it makes the defendant negligent if he is unable to stop his car within the range of his vision. The law in Virginia imposes no such duty. Finch McRae, 206 Va. 917, 922, 147 S.E.2d 83, 87 (1966); Yates Potts, 210 Va. 636, 640, 172 S.E.2d 784, 787 (1970).
Therefore, we disapprove the instruction and overrule Twyman, Body, Fender & Brake and Roberts insofar as they are inconsistent with our holding here.
We also hold that the trial court erred in granting Instruction No. 8. This instruction, a last clear chance instruction dealing with a helpless plaintiff, has no application to this case as the facts here do not disclose a helpless plaintiff.
Our prior decisions as to the meaning of "helpless plaintiff" have been misunderstood. In the sequence of events leading to an accident a point of time is reached when one of the parties becomes helpless in the sense that no action on his part could avoid the accident. But this is not what is meant by the term "helpless plaintiff." For it is only in those rare instances where the plaintiff is physically incapacitated that we have a "helpless plaintiff" within the meaning of the last clear chance doctrine.
Reversed and remanded.
NOTES
[1] The other evidence establishes the sight distance to the west to be one quarter of a mile.
[2] "INSTRUCTION NO. 5 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331104/ | 125 Ga. App. 435 (1972)
188 S.E.2d 142
BUTLER
v.
MOORE.
46801.
Court of Appeals of Georgia.
Argued January 3, 1972.
Decided January 19, 1972.
Rehearing Denied February 8, 1972.
Greer & Murray, Frank J. Klosik, Jr., for appellant.
E. H. Stanford, for appellee.
EVANS, Judge.
Harvey E. Moore sued Clarence A. Butler for personal injuries incurred as the result of a fall while plaintiff was assisting defendant in the maintenance of electrical wiring in the defendant's home. In order to perform the work, it was necessary for plaintiff to enter the attic of the defendant's residence by way of a disappearing, spring-loaded stairway, which was so constructed as to pull down from the ceiling when access thereto is desired. While the plaintiff was in the process of using said stairway to descend from the attic, the staircase and frame fell from the ceiling, and severely injured him. Plaintiff alleged that defendant was aware of the precarious nature of this stairway, and of its tendency to fall, but failed to warn plaintiff of said peril. He alleged that as a direct and proximate result of defendant's negligence plaintiff sustained the injuries for which he seeks judgment. The defendant denied the allegations of the complaint and thereafter filed a motion for summary judgment based upon the pleadings, depositions and an affidavit.
The substance of the defendant's motion for summary judgment was that although the stairway had fallen with defendant's minor son, age 18, some years before, the son had never told him about the stairway having fallen with him, and that he had replaced it with nails, and defendant thus insists he was not responsible since he had no knowledge of the dangerous condition of the stairs. After a hearing, the defendant's motion for summary judgment was overruled and the appeal is from this judgment. Held:
*436 1. On a motion for summary judgment by the defendant the complaint is to be construed liberally in favor of the complainant, and the burden is upon the movant to show no genuine issue as to any material facts since the opposing party is given the benefit of all favorable inferences that may be drawn from the evidence. Candler General Hospital v. Purvis, 123 Ga. App. 334 (1) (181 SE2d 77), and cases cited therein.
2. Relationship of principal and agent arises whenever one, expressly, or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf; and this includes the acts of an infant agent of the principal. Code § 4-101, 4-102.
3. Every person shall be liable for torts committed by his wife, child or servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary. Code § 105-108. While the word "business" is commonly employed in connection with an occupation for livelihood or profit, it is not limited to such pursuits. See Stanford v. Smith, 173 Ga. 165, 167 (159 SE 666). Thus, under the evidence submitted here, which shows that the son assisted in doing little things around the home, making minor repairs, and that the stairway fell when the son was using it, and he repaired it with some nails, there was some direct evidence of agency.
4. Under the law as to summary judgment, as all inferences are construed most favorably towards the party opposing the motion, in this case an inference could very well have arisen that the stairway fell with plaintiff because of having been improperly nailed back into place by defendant's son, while said son was acting as agent of defendant.
5. The minor son had first-hand knowledge of the previous falling of the stairway and of his conduct in nailing the stairs back into place, and if done defectively, he was chargeable with notice thereof. The father in this case, being the principal, was chargeable with whatever notice *437 the son had. And, of course, the father was, at the very least, therefore chargeable with notice the stairway had previously fallen. Code § 4-309.
6. The lower court did not err in denying the motion for summary judgment.
Judgment affirmed. Bell, C. J., concurs. Eberhardt, J. concurs in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331105/ | 125 Ga. App. 596 (1972)
188 S.E.2d 401
HANNAH
v.
THE STATE (two cases).
46916, 46917.
Court of Appeals of Georgia.
Submitted February 7, 1972.
Decided February 25, 1972.
*597 Sanders, Mottola & Haugen, Gus L. Wood, for appellants.
*598 DEEN, Judge.
1. The lethal character of the weapon used in making an assault may be inferred from the nature of the weapon and effect of the wound inflicted. Nelson v. State, 4 Ga. App. 223 (60 SE 1072); Hardy v. State, 24 Ga. App. 141 (100 SE 20); Jackson v. State, 56 Ga. App. 374 (1) (192 SE 633); Wells v. State, 125 Ga. App. 579. It may also be inferred from the circumstances under which the weapon is used. It appears here, as to the pistol, that James Hannah left the restaurant and returned almost immediately with it, pointing it at Goforth, and stating he was going to kill him. Absence of positive testimony that the weapon was loaded at the time does not negate the conviction since from all the circumstances the jury might infer equally with the participants that it was. As to the knife, it was actually exhibited to the jury and additionally there was testimony both as to the wound in the arm and a cut down Goforth's back which at the same time completely severed a leather belt which he was wearing. Count 1 of the indictment in each case was sufficiently supported by evidence of the lethal character of the weapon used.
2. Under Code Ann. § 26-801 (b) (3), a person may be charged with and convicted of a penal offense where he intentionally aids or abets in the commission of the crime although it was committed by another. Thus although the terminology of parties to a crime as principals in the first and second degree has been abolished, the concept, as relating to criminal responsibility, remains constant. "Aid or abet" as used here should be given the same meaning as in former Code § 26-501 defining a principal in the second degree as one "who is present, aiding and abetting the act to be done." While Clarence Hannah might have been convicted for the offense of aggravated assault under Count 1 by reason of his stabbing Goforth, regardless of whether or not there was any relation between his act and those of his brother, under Counts 2 and 3 his conviction is justifiable only if the evidence warrants a finding that he aided and abetted his brother, the only defendant who had a pistol. Additionally, the question is raised whether, even if he did *599 aid and abet, he can be convicted of the offense of battery with a pistol where James Hannah is the only person connected by any testimony whatever with the act of striking Richard Addison with a pistol, and on his own trial on the day following Clarence Hannah's conviction James was in fact acquitted. The question is answered by Code Ann. § 26-802 which stated specifically that a party to a crime who did not directly commit the crime may be convicted on proof that (a) the crime was committed and (b) that he was a party thereto as defined in Code Ann. § 26-801 "although the person claimed to have directly committed the crime... has been acquitted." The same result was reached under the former law in those cases where a principal in the second degree was indicted as a principal in the first degree but found guilty as an aider and a bettor and subjected to the same punishment. "Where A and B are present, and A commits an offense in which B aids and abets him, the indictment may either allege the matter according to the facts, or charge them both as principals in the first degree, for the act of one is the act of the other, and upon such indictment B who was present, aiding and abetting, may be convicted, though A is acquitted." Maughon v. State, 9 Ga. App. 559 (2) (71 SE 922). While such a result is difficult to defend as a moral principle, its legal pedigree is well established.
Nor can it be said that when Clarence Hannah launched himself into the fray on the side of his brother he still maintained a complete separation between his acts and those of the co-defendant. Under the evidence the jury had to choose between his theory, that he came to the defense of a family member threatened by physical harm, and the State's theory that James Hannah gratuitously reentered the restaurant from which he had been expelled, after procuring a weapon, and attempted to terrorize those present, and that his brother was supporting him in this project. In Pope v. State, 13 Ga. App. 711, 713 (79 SE 909), where it was urged that the defendant could not be convicted of manslaughter in a homicide not perpetrated by himself, the *600 court said: "A principal in the second degree, however, is one who is present, aiding and abetting the act to be done, and the same causes which influence the principal in the first degree to be suddenly overwhelmed with the impulse to kill may operate upon a friend or near relative who may be present. Two friends may be traversing together a public highway; one of them may be assaulted by a third person, and, under the sudden impulse of passion engendered in the principal's companion by the natural bias of friendship, he may participate in acts that show participation in the intent to kill which has only instantaneously developed in the mind of his fellow. The human mind operates with such celerity that this is only one of the many illustrations which might be given to show that one in aiding and abetting another to commit a homicide may be mastered by the impulse, and his act may be the result of an intent entertained in common with another although there was no premeditation and no conspiracy." It follows that the conviction of James Hannah under Count 2 and of Clarence Hannah under Counts 2 and 3 is supported by evidence.
3. The remaining enumeration of error is disposed of by the reasoning above set out. The defendant James Hannah objected to the court's permission granted to Goforth to exhibit the scar made by Clarence Hannah's knife on his person, on the ground that the wound was not inflicted by the defendant on trial. But James could be an aider and abettor of and a party to the criminal act of Clarence just as Clarence aided and abetted in the acts of James. Whether a witness may be permitted to exhibit wounds or injuries to the jury is a matter largely within the discretion of the trial court. Pidcock v. West, 24 Ga. App. 785 (3) (102 SE 360); 32 CJS 769, Evidence, § 610.
Judgments affirmed. Jordan, P. J., and Clark, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262836/ | 236 P.3d 153 (2010)
236 Or. App. 239
STATE
v.
KRUSE.
A137832.
Court of Appeals of Oregon.
July 7, 2010.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2421375/ | 145 F.Supp.2d 960 (2001)
Dianne L. MEYER, an individual and one of the successors in interest of Hydro-Dynamics, Inc., a dissolved Arizona corporation, and J. Robert Meyer, in his capacity as trustee of JM Trust No. 1, a trust and one of the successors in interest of Hydro-Dynamics, Inc., a dissolved Arizona corporation, Plaintiffs,
v.
ERJ, INC., a New York corporation, De Baron, Inc., a New Jersey corporation, ERJ De Baron, Inc., a corporation, James Debark, an individual, Ron Focazio, an individual, and Ed Liguori, an individual, Defendants.
No. 96 C 143.
United States District Court, N.D. Illinois, Eastern Division.
March 27, 2001.
J. Robert Meyer, Hinsdale, IL, for Plaintiffs.
Gary A. Hood, Peterson & Ross, Chicago, IL, John G. Sestak, Jr., Jennings, Strouss & Salmon, P.L.C., Phoenix, AZ, H. Evan Williams, IV, O'Hagan, Smith & Amundsen, Wheaton, IL, James W. Ozog, Heather Lynn Genck, Momkus, Ozog & McCluskey, Downers Grove, IL, for Defendants.
MEMORANDUM AND ORDER
MORAN, Senior District Judge.
Both plaintiffs and respondent Wal-Mart Stores, Inc. (Wal-Mart) have moved for summary judgment on plaintiffs' claim that Wal-Mart owes money to judgment debtor ERJ, Inc. or related companies (ERJ). We grant Wal-Mart's motion and deny plaintiffs' motion.
Neither ERJ nor the secured lender that succeeded to its assets has ever claimed that Wal-Mart owes anything to ERJ. That claim is advanced by plaintiffs, who have a judgment against ERJ and want to recover on that judgment. They first sought to establish that Wal-Mart had outstanding balances owing. The Wal-Mart director of accounts payable said "no," but because the accounting records were not self-explanatory we granted plaintiffs leave to take a deposition of someone who could explain them. The deposition was taken and we have heard nothing further claiming that the accounting records reflect any balance outstanding. And the director of accounts payable filed an amended affidavit updating and reenforcing his prior affidavit.
Plaintiffs now claim that their review of inventory and other records disclose unexplained inventory on hand and various unexplained credits. They rely heavily on a claimed lack of documentation for those amounts. In doing so, they seek to open up the relationship between Wal-Mart and ERJ over a several-year period to advance claims never made by ERJ or the secured lender. But they have never obtained any court orders requiring production of additional documents and have not even filed any formal requests. It is up to plaintiffs to prove that Wal-Mart owes money to ERJ; it is not up to Wal-Mart to justify its transactions. Even so, Wal-Mart has filed various affidavits which respond to plaintiffs' claims. Wal-Mart's bedding buyer has no reason to believe that defective merchandise was not returned by the respective stores, according to established procedures, ERJ has never claimed to the contrary, and certain $25,000 credits were by agreement with ERJ. Other affidavits discuss the inventory system and inbound freight credits. The end result is that plaintiffs have at most an unsupported *961 speculation that Wal-Mart did not pay all that was due. And that is not enough. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330730/ | 159 Ga. App. 366 (1981)
283 S.E.2d 298
McMILLAN
v.
DAY REALTY ASSOCIATES, INC.
60682.
Court of Appeals of Georgia.
Decided June 29, 1981.
Rehearing Denied June 22, 1981.
Louis F. McDonald, for appellant.
William S. Goodman, for appellee.
QUILLIAN, Chief Judge.
For a full statement of the facts see McMillan v. Day Realty Assoc., 156 Ga. App. 660 (275 SE2d 352), where we held that since there was no probable cause to believe the lawn mower had been purloined by the plaintiff, it was error to direct a verdict for the defendant.
On certiorari the Supreme Court answered in the negative the following question: "Is a jury question presented in an action for malicious prosecution where the defendant obtains an arrest warrant for theft by taking of several items and the evidence, as a matter of law, supports a finding of probable cause for some items, but not for all of them?" The rationale for the decision was predicated on public policy of not favoring suits for malicious prosecution. Our decision was therefore reversed and remanded for determination of whether there was a lack of probable cause to prosecute for theft of any of the *367 other items.
On remand the appellant has argued public policy should forbid prosecution based on mere possession of missing items. While sympathizing with that position, precedent dictates that we leave such determination to our highest court. This case is controlled by the principles enunciated in West v. Baumgartner, 228 Ga. 671, 676, 677 (187 SE2d 665): "`"The burden of proving the want of probable cause is on the plaintiff" (Auld v. Colonial Stores, 76 Ga. App. 329, 335 (45 SE2d 827)), and he does not in any reasonable sense carry this burden unless he shows by his evidence that, under the facts as they appeared to the prosecutor at the time of the prosecution, the prosecutor could have had no reasonable grounds for believing the plaintiff to be guilty of the charge for which he was prosecuted. [Cit.]' ... `In actions for malicious prosecution, the question is not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution. [Cit.]'" The court there held that a judgment was demanded for defendant where the plaintiff failed to show that, at the time of prosecution, the defendant had no reasonable grounds for believing the plaintiff was guilty. Likewise, in the case sub judice the circumstances were such that it could not be said that there was no reasonable cause to believe that the plaintiff was guilty of a crime.
Moreover, another major factor which must be shown is malice. The applicable precepts are contained in Brown v. Scott, 151 Ga. App. 366, 368 (259 SE2d 642) from which we quoted extensively in our original opinion. The Brown case relied upon Darnell v. Shirley, 31 Ga. App. 764 (122 S.E. 252) wherein this Court made the determination that the direction of a verdict for the defendant (prosecutor) would be in order where there was no evidence of defendant's fraudulent conduct or improper motive, the plaintiff (accused) was bound over by magistrates, subsequently indicted, and there were "some slight circumstances pointing to his guilt, though not enough to exclude every other reasonable hypothesis ..."
We are, therefore, constrained by the cited authority to find that the trial judge did not err in directing a verdict for the defendant.
Judgment affirmed. Shulman, P. J., and Carley, J., concur.
*368 ON MOTION FOR REHEARING.
1. Contrary to movant's assertions the issue of whether the question of probable cause should be determined by the court or by the jury was discussed in our original opinion. See McMillan v. Day Realty Assoc., 156 Ga. App. 660, 661 (275 SE2d 352). Nevertheless, we reiterate the well established principle: "The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to show probable cause existed is a matter of fact, to be determined by the jury, but whether they amount to probable cause is a question of law for the court." Hearn v. Batchelor, 47 Ga. App. 213, 214 (3) (170 S.E. 203) and cases therein cited. Accord, South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 7 (182 S.E. 61); Tanner-Brice Co. v. Barrs, 55 Ga. App. 453, 454 (4) (190 S.E. 676); American Plan Corp. v. Beckham, 125 Ga. App. 416 (4) (188 SE2d 151); S. S. Kresge Co. v. Kicklighter, 135 Ga. App. 114 (2) (217 SE2d 418); Williamson v. Alderman, 148 Ga. App. 297 (1) (251 SE2d 153); Hicks v. Brantley, 102 Ga. 264, 272 (29 S.E. 459). Moreover, "where it is clear from the evidence that the prosecutor did have probable cause for the prosecution of the plaintiff, a verdict for the defendant is demanded." Morgan v. Mize, 118 Ga. App. 534 (2b) (164 SE2d 565).
2. Statutory authority for our decisions, such as Brown v. Scott, 151 Ga. App. 366, 368 (259 SE2d 642), is found in Code § 105-804 which provides: "A total want of probable cause is a circumstance from which malice may be inferred ..." Thus, we find no basis, as suggested by movant, to repudiate the holding of Brown v. Scott, 151 Ga. App. 366, 368, supra, that malice can be inferred only where there is a total want of probable cause. "And where there is no evidence of malice other than such inference as may be drawn from proof of the want of probable cause, and that proof shows some circumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for malicious prosecution to recover . . ."
Judgment adhered to. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330728/ | 159 Ga. App. 190 (1981)
283 S.E.2d 69
FOWLER
v.
AETNA CASUALTY & SURETY COMPANY et al.
61482.
Court of Appeals of Georgia.
Decided July 8, 1981.
Roy J. Leite, Jr., Thomas R. Luck, Jr., for appellant.
Maurice M. Sponcler, Jr., for appellees.
SHULMAN, Presiding Judge.
This appeal was allowed pursuant to Code Ann. § 6-701.1 (1) to determine whether appellant Fowler was entitled to refile a workers' compensation appeal in the Superior Court of Whitfield County within six months of the prior dismissal of the appeal by the Superior Court of Gordon County on the ground of improper venue. The pertinent facts and dates follow:
On July 18, 1979, the State Board of Workers' Compensation issued a final award denying compensation to appellant-claimant. On July 27, 1979, appellant applied to the board for an appeal to the *191 Superior Court of Gordon County. The board allowed the appeal and forwarded the requisite documents to the Superior Court of Gordon County on August 15, 1979. On November 2, 1979, the appeal was dismissed by the Superior Court of Gordon County "due to the fact that since the injury did not occur in Gordon County, [that court] was without jurisdiction to entertain the appeal and was required by law to dismiss it . . ." The injury upon which the claim was based occurred in Whitfield County, which was, therefore, the proper venue for appeal. Code Ann. § 114-710. On March 25, 1980, appellant, represented by different attorneys, applied to the board for an appeal to the Superior Court of Whitfield County, relying, among other things, on Code Ann. § 3-808. The board denied this appeal, ruling that it had no authority under Code Ann. § 114-710 to transmit an appeal unless it was filed within 30 days from the date of the final award. On April 23, 1980, appellant sought review in the Superior Court of Whitfield County of "the Award of the State Board of Workers' Compensation of April 15, 1980, denying his appeal to the Whitfield Superior Court, as refiled to that Court within six months of the dismissal for improper venue by the Gordon Superior Court of a timely filed appeal of the Board's denial of his claim on July 18, 1979. Claimant also appeals the Board's denial and overruling by implication of his motion to allow said refiled appeal and . . . assigns error [in that] the Board acted without or in excess of its powers in denying said appeal and refusing to certify and forward the record of this claim to the Whitfield Superior Court." On September 15, 1980, the Superior Court of Whitfield County affirmed the April 15, 1980 award of the board and denied appellant's motion to allow the appeal. Because of a constitutional issue raised in the Whitfield County appeal, discretionary appeal was applied for in the Supreme Court, which ordered that the appeal be granted and transferred to the Court of Appeals.
The decisive issue in this case is whether Code Ann. § 3-808 applies to an appeal to a superior court from an award of the State Board of Workers' Compensation. If it does, appellant's attempt to refile his appeal in the Superior Court of Whitfield County should have been allowed.
"If a plaintiff shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case .. ." Code Ann. § 3-808.
1. The first question to address is whether an appeal to a superior court is a "case" within the meaning of the statute. We believe it is and find support for that position in Ga. R. & Power Co. v. J. M. High Co., 15 Ga. App. 243 (1) (82 S.E. 932). There it was held that *192 a petition for certiorari was such a case. We find an appeal to the superior court from an administrative tribunal to be on the same footing insofar as § 3-808 is concerned.
Cases such as Gordy v. Calloway Mills Co., 111 Ga. App. 798 (143 SE2d 401), do not require a different conclusion. Those cases held that Code Ann. § 3-808 did not apply to claims before the State Board of Workers' Compensation. We deal now with an action in a court of this state, not a claim before an administrative agency.
2. The fact that the dismissal in Gordon County was involuntary does not prevent the application of Code Ann. § 3-808. "Code Ann. § 3-808 applies to involuntary as well as voluntary dismissals, where the merits are not adjudicated. [Cits.]" Bowman v. Ware, 133 Ga. App. 799, 800 (213 SE2d 58).
3. It is well settled that Code Ann. § 3-808 applies only if the original action is a valid suit. Cutliffe v. Pryse, 187 Ga. 51 (200 S.E. 124). Appellees argue, that because the appeal was filed in the wrong county, the superior court in which the action was filed lacked subject matter jurisdiction, rendering the original action void. That being so, appellees argue, there was no case to renew and the second appeal was barred by the period of limitation in Code Ann. § 114-710.
Generally speaking, improper venue does not deprive a court of subject matter jurisdiction. A cogent explanation of subject matter jurisdiction and the effect of improper venue thereon appears in Keramidas v. Dept. of Human Resources, 147 Ga. App. 820 (250 SE2d 560). There, an appeal from a decision by the State Personnel Board was filed in the wrong county, voluntarily dismissed after the statutory period of limitation had passed, and refiled in the correct county. This court examined the nature of subject matter jurisdiction and found that it means "jurisdiction of the class of cases to which that particular case belongs." Id., p. 822. Applying that analysis to the case before it, this court found that Code Ann. § 40-2207.1 conferred "[j]urisdiction to hear that class of appeals . . . on the superior courts of this state." Id., p. 823. The language used in that Code section to confer subject matter jurisdiction on the superior courts was as follows: "Any party . . . who is aggrieved by a final decision . . . of the board . . . may seek judicial review of the final decision . . . of the board in the superior court of the county of the place of employment of the employee." (Emphasis supplied.) Code Ann. § 40-2207.1 (h).
Turning to the appellate venue provisions of the Workers' Compensation Act we find no significant difference. Code Ann. § 114-710 provides that either party may ". . . appeal to the superior court of the county in which the injury occurred . . ." It would seem obvious, therefore, that § 114-710 confers subject matter jurisdiction on the superior courts of this state and that the original action in this *193 case was not void.
However, there stands opposed to the lucid reasoning of Keramidas, supra, the 1952 decision of this court in Porter v. Employers Liability Ins. Co., 85 Ga. App. 497 (69 SE2d 384). It was there held that ". . . where an injury occurs in Walton County and an award of the Workmen's Compensation Board is appealed to the Superior Court of Fulton County, that court is without jurisdiction of the subject-matter and its judgment is void." Id. Although the reasoning supporting that holding is not set out in the opinion, some insight may be gathered from cases following Porter. In Geo. Washington Life Ins. Co. v. Peacock, 90 Ga. App. 296, 298 (82 SE2d 875), while discussing venue, this court held that "[t]here are some mandatory and exclusive provisions for the county in which certain actions must be brought, and these provisions may not be waived, since they operate to limit the jurisdiction of a court over the subject matter. See, for instance, Porter v. Employers Liability Ins. Co., [supra], and Code § 114-710; also Code § 94-1101 . . ." Subsequently, in Standford v. Davidson, 105 Ga. App. 742 (125 SE2d 720), the question of venue as a limitation on subject matter jurisdiction was raised again, this time in relation to the Nonresident Motorists Act: "Plaintiff in error contends that the evidence showed the residence of the plaintiff in the trial court to have been in a county other than that in which the action was brought and that therefore the court was without jurisdiction of the subject matter and cites cases relating to actions against railroad companies under Code § 94-1101. The answer to this contention lies in the fact that Code § 94-1101 specifically provides that `any judgment rendered in any county other than the one herein designated shall be utterly void.' (Italics ours.) There is no such provision in the Nonresident Motorists Act. The provision in the railroad act does not mean that the question of bringing an action in the wrong county is jurisdictional as to subject matter."
An examination of Code Ann. § 114-710 reveals that it, like the Nonresident Motorists Act, lacks the restrictive language which made the venue provision of Code Ann. § 94-1101 mandatory and exclusive. As was shown above, the language of § 114-710 is much closer to that of § 40-2207.1, which was held not to affect subject matter jurisdiction in Keramidas, supra. We believe the reasoning in Keramidas should apply with equal force in this case. To continue with the restrictive rule expressed in Porter, supra, would thwart the remedial purpose of Code Ann. § 3-808 and the compensatory purpose of the Workers' Compensation Act. It is necessary, therefore, that we overrule Porter v. Employers Liability Ins., Co., supra; Gerrell v. Jackson, 85 Ga. App. 707 (70 SE2d 105); Burnett v. Burnett, 87 Ga. App. 322 (73 SE2d 569); Continental Cas. Co. v. Pace, 96 Ga. *194 App. 317 (99 SE2d 836); and Geo. Washington Life Ins. Co. v. Peacock, supra, insofar as they hold that the venue provisions of Code Ann. § 114-710 limit the subject matter jurisdiction of the superior courts of this state.
From our foregoing holdings, it may be seen that the Superior Court of Gordon County had jurisdiction over the subject matter of the appeal appellant had filed there. That being so, the original action was not void and Code Ann. § 3-808 applies. Therefore, it was error for the board to refuse to forward the record in this case to the Superior Court of Whitfield County and error for that court to refuse to entertain the appeal. Appellant must have an opportunity to contest in court the award of the State Board of Workers' Compensation.
Judgment reversed. Quillian, C. J., Deen, P. J., McMurray, P. J. Banke, Birdsong, Carley, Sognier and Pope, JJ., concur. | 01-03-2023 | 10-30-2013 |
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