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https://www.courtlistener.com/api/rest/v3/opinions/1330733/ | 159 Ga. App. 386 (1981)
283 S.E.2d 630
STARR
v.
THE STATE.
61713.
Court of Appeals of Georgia.
Decided July 10, 1981.
Rehearing Denied July 23, 1981.
*389 Harry J. Fox, Jr., for appellant.
Theron Finlayson, District Attorney, Tony H. Hight, Stephen Pace, Jr., for appellee.
CARLEY, Judge.
Appellant was convicted of armed robbery. The sole issue on appeal is whether appellant's motion to suppress was erroneously denied.
The relevant facts are as follows: On March 2, 1980, at approximately 3:35 p. m. an armed robbery occurred, the robber apparently leaving the scene on foot. Within five minutes an officer had been dispatched to the scene and he obtained a description of the perpetrator which was then radioed to other law enforcement officers. An immediate lookout was posted for a "white male, . . . , around 25 to 30 years of age, approximately six feet, medium build, mustache, possibly a beard, wearing some type of a yellow cap, long white coat down below the knees, yellow gloves." An off-duty officer radioed that he had seen a man of medium build wearing "a yellow type hat and a long light-colored coat" running to the Colonial Motel. An officer responding to this report went to the motel and ascertained from the desk clerk that a room had just been rented to an individual *387 who had not arrived in an automobile, having checked in as a "hitchhiker." This officer then radioed that he had located a possible suspect at the motel and another officer arrived within a very short period of time. Further inquiry of the desk clerk was made concerning the physical description of the "hitchhiker" and, while the clerk could not remember "what type of clothing he was wearing," she recalled "he was a fairly young fellow and . .. believed he had a mustache, [but] couldn't remember whether he had a beard or not." Armed with this information and about "15 or 20 minutes" having elapsed since the time of the robbery, the two officers approached the "hitchhiker's" room and knocked on the door. A third officer was stationed some distance away as a "backup." Appellant, apparently having just stepped from the shower and wearing a towel, opened the door to the room. From their position in the open doorway, the officers observed a pair of yellow gloves. Appellant, who otherwise fit the general physical description of the armed robber, was then asked to step back into the room and he was advised that he was a suspect in an armed robbery. The backup officer, seeing his two fellow officers go into the room, also entered. The appellant was asked "to just sit down there on the bed temporarily" while the bathroom was checked to see if appellant was the sole occupant of the room. One of the officers "proceeded to look for weapons" on the bed where appellant had been instructed to sit. When the officer "pulled the mattress back," he discovered "quite a bit of loose change and rolled change underneath . . ."
The coins and the yellow gloves were seized and introduced into evidence at appellant's trial after his motion to suppress those items had been denied. Appellant urges that his motion to suppress this evidence should have been granted because his arrest was illegal under Code Ann. § 27-207 and the warrantless search of his motel room was in violation of the Fourth Amendment.
It is beyond dispute and appellant does not contest that, prior to knocking on the door, the officers had sufficient reason to conduct an investigation of the suspicious hitchhiker to ascertain any possible connection with the armed robbery. State v. Carter, 240 Ga. 518 (242 SE2d 28) (1978); Silas v. State, 133 Ga. App. 560 (211 SE2d 609) (1974); State v. High, 145 Ga. App. 772 (244 SE2d 888) (1978). Thus, when appellant responded to the knock on the door, the police officers, "while rightfully standing before the open doorway of the hotel room for purposes of investigation, observed within the room in plain view" both the yellow gloves and appellant, who matched the general description of the armed robber. Brooks v. State, 129 Ga. App. 393, 394 (199 SE2d 578) (1973). At this point the officers had probable cause to arrest appellant without a warrant for the armed *388 robbery. "After discovering the [yellow gloves], the officer[s] had sufficient information to warrant the reasonable belief that the appellant was in fact the [armed robber] described in the police reports. [They were] accordingly authorized to make the arrest pursuant to Code Ann. § 27-207 to prevent a `failure of justice for want of an officer to issue a warrant.' [Cits.]" Reese v. State, 145 Ga. App. 453, 454 (243 SE2d 650) (1978). "[U]pon the policemen's recognition of appellant as fitting the perpetrator's description and their noticing he [had in his possession a pair of yellow gloves], they obtained probable cause to arrest." State v. High, 145 Ga. App. 772, 774, supra. "Here the information provided by the complainant to the police station, which was broadcast over the radio, was verified by on site observation. Under these circumstances, the trial court did not err in concluding there was probable cause for an arrest. [Cits.]" Bradford v. State, 149 Ga. App. 839, 841 (256 SE2d 84) (1979).
Appellant contends that because the officers had drawn their guns before knocking he was under "arrest" at the very instant he began to open the door and there was no probable cause to arrest him at that time. This argument is without merit. It is apparent that under the circumstances the officers had drawn their guns prior to the door opening because they were conducting an investigation of a possible suspect in the commission of an armed robbery and not because they were effectuating an arrest of the suspect in the crime. The drawn guns were "authorized to protect the officer[s] who had been notified the robber was armed. . ." Butts v. State, 149 Ga. App. 492, 493 (254 SE2d 719) (1979). In short, the guns were exposed out of an understandable prudence and caution for the situation they might face when the closed door was opened and not specifically for the purpose of restraining the freedom of appellant. It is clear that, under the facts of this case, appellant was restrained from "walking away" and therefore "arrested" only when he was asked to step back into the room and to sit on the bed. See Kelly v. State, 129 Ga. App. 131, 133 (2) (198 SE2d 910) (1973). At that point the officers had observed that appellant matched the physical description of the perpetrator and that he possessed a pair of yellow gloves and, as discussed above, at that time they had probable cause to make an arrest.
Appellant's arrest being lawful though warrantless, a search pursuant to Code Ann. § 27-301 of the "area within [his] immediate presence," including the bed upon which he had been directed to sit, was authorized. See Humphrey v. State, 231 Ga. 855 (204 SE2d 603) (1974); State v. Mathis, 143 Ga. App. 121 (237 SE2d 643) (1977). Appellant's motion to suppress was properly denied.
Judgment affirmed. Deen, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330744/ | 159 Ga. App. 202 (1980)
283 S.E.2d 1
BROOME
v.
GINSBERG; and vice versa.
62058, 62063.
Court of Appeals of Georgia.
Decided June 17, 1980.
Rehearing Denied July 9, 1981.
Roland B. Williams, F. Saunders Aldridge, for appellant.
Fred S. Clark, for appellee.
DEEN, Presiding Judge.
Dr. Murray Ginsberg, a dentist, formed a professional corporation in 1970 of which he was the sole stockholder. In the fall of 1976 he employed Dr. Broome, also a dentist, to work for the firm. Dr. Ginsberg died on November 17, 1976, leaving all the stock in the professional corporation to his wife, a non-medical person. Dr. Broome entered into his employment on January 2, 1977, and worked for the corporation until May 17, 1977, at which time he left and opened up a private practice.
Mrs. Ginsberg, as sole owner of the stock of the appellee corporation, caused suit to be filed in its name against Dr. Broome alleging breach of a restrictive covenant in the employment contract which stipulated that Broome "agrees not to compete directly or indirectly in the practice of periodontics in Chatham County, Georgia, for a period of two years from the termination of employment . . . unless he shall pay to the corporation 20 percent of his gross income from his periodontic practice in Chatham County, Georgia, during the first year following such termination and 15 percent of his gross income from said practice during the second year following such termination."
Both sides moved for summary judgment, and both motions were denied. Broome filed an interlocutory appeal which was granted by this court; we have also accepted the plaintiff's cross appeal. Held:
1. This corporation was chartered under Code Chapter 84-54, The Georgia Professional Corporation Act. It may exist for the practice of only one profession, in this case dentistry. Code § 84-5404 (a). It may not engage in the practice of such profession except through a duly licensed member of that profession. Code § 84-5404 (b). Shares of a professional corporation in the name of a deceased shareholder must within six months of the date of death of the holder be redeemed, cancelled, or transferred to a licensed person authorized to hold them. Code § 84-5405 (c). A personal representative of a deceased person may not participate in or vote upon any matter concerning the rendering of personal professional services. Id. Such decisions must be vested in persons who are licensed to practice the profession. Code § 84-5404 (c). A professional corporation which ceases to have a licensed shareholder actually practicing in the profession ceases after six months to be a professional corporation; its only viability from that time is the right to liquidate in accordance with the statutes relating to the Georgia Business Corporation Code, Code § 22-101 et seq. Accordingly, when after the death of Dr. Ginsberg six months passed during which time *203 no eligible person licensed to practice dentistry in this state held any shares in the professional corporation it ceased to be such by operation of law, and it remained a business corporation only for the purpose of liquidation of assets.
2. Restrictive covenants in employment contracts tend to lessen competition and, thus being in partial restraint of trade, are narrowly scrutinized. Barrett-Walls, Inc. v. T. V. Venture, Inc., 242 Ga. 816, 818 (251 SE2d 558) (1978). To be enforceable they must not be unreasonable in other respects. Nationwide Mut. Ins. Co. v. Elder, 240 Ga. 592 (242 SE2d 97) (1978); Orkin Exterminating Co. v. Pelfrey, 237 Ga. 284 (227 SE2d 251) (1976); Purcell v. Joyner, 231 Ga. 85 (200 SE2d 363) (1973). This is a question of law for the court. Stein Steel &c. Co. v. Tucker, 219 Ga. 844, 846 (136 SE2d 355) (1964); Dixie Bearings, Inc. v. Walker, 219 Ga. 353, 356 (133 SE2d 338) (1963). When the contract involves the practice of a profession, it will be held void if it needlessly oppresses one of the parties without affording any corresponding protection to the other. In particular, it should not so operate as to cause one party to abstain from practicing his profession at a time or place when so doing would not benefit the other contracting party. Rakestraw v. Lanier, 104 Ga. 188 (30 S.E. 735) (1898). "The restrictions imposed upon the promisor must not be larger than necessary for the protection of the promisee." Taylor Freezer Sales Co. v. Sweden Freezer Eastern Corp., 224 Ga. 160 (1) (160 SE2d 356) (1968).
3. Applying the above law to the facts of this case, we are constrained to hold that, six months having passed after the death of the sole shareholder of the plaintiff corporation qualified to carry on the business of the firm, plaintiff ceased to be a professional corporation, and the only thing it could do thereafter was, as a business corporation, to liquidate its assets. It will be observed that the defendant continued for the requisite period of six months after Ginsberg's death to carry on as an employee. Had the plaintiff reorganized during that time, by transfer of shares to a qualified person or otherwise, a different situation might obtain. When, however, the plaintiff's life as a professional corporation ceased, the practice of his profession by Broome could in no way harm it, since there could thereafter be no professional competition between the two. To hold under such circumstances that the income from Broome's personal practice or any part of it could be seizable as damages by the defunct corporation when such practice could no longer damage it would be to render the covenant "otherwise unreasonable" within the language of the statute.
Accordingly, the trial court did not err in denying summary judgment to the plaintiff, but erred in denying Broome's motion for *204 summary judgment in his favor.
Judgment reversed in case no. 62058. Judgment affirmed in case no. 62063. Banke and Carley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330724/ | 283 S.E.2d 502 (1981)
STATE of North Carolina
v.
Thomas Walter WRIGHT.
No. 39.
Supreme Court of North Carolina.
November 3, 1981.
*503 Atty. Gen., Rufus L. Edmisten by Associate Atty. Gen. Lisa Shepherd, Raleigh, for the State.
Public Defender, Wallace C. Harrelson and Asst. Public Defender Hugh Davis North, III, Greensboro, for defendant.
COPELAND, Justice.
At the outset, we note that defendant has abandoned assignments of error 1, 2, 3, 4, 8 and 9 by failing to advance any argument to support them in his brief. Rule 28(a), North Carolina Rules of Appellate Procedure. By the assignments of error properly preserved for our review, defendant raises two basic questions: (1) whether the trial court should have instructed the jury about certain lesser included offenses, as requested, and (2) whether the trial court should have instructed the jury sua sponte to disregard the district attorney's reference to the facts of a decided case in his closing argument. A careful examination of this record, and the law applicable thereto, compels us to conclude that defendant's contentions, in both regards, are void of merit.
It is, of course, clear that a judge must declare and explain the law arising on all of the evidence, G.S. 15A-1232, and that this duty necessarily requires the judge to charge upon a lesser included offense, even absent a special request therefor, whenever there is some evidence to support it. State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970); State v. Little, 51 N.C.App. 64, 275 S.E.2d 249 (1981). The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense. State v. Gadsden, 300 N.C. 345, 266 S.E.2d 665 (1980); State v. Redfern, 291 N.C. 319, *504 230 S.E.2d 152 (1976). Here, defendant argues that there was at least some evidence to support submission of the following lesser included offenses: non-felonious breaking and entering, upon the first degree burglary charge, and attempted rape and assault with a deadly weapon, upon the first degree rape charge. To the contrary, we find that all of the pertinent evidence is susceptible to but one reasonable interpretation, to wit, that defendant, if he was guilty of anything at all, was guilty of the higher degree crimes only.
The victim testified that, upon entering her bedroom, defendant immediately asked her, "Where is Johnny?" Defendant relies upon this single fact as evidence tending to show that he did not possess the requisite felonious intent when he broke into and entered the dwelling. It is, of course, true that, to make out a case of burglary in the first degree, the State had to show that defendant broke into and entered an occupied dwelling or sleeping apartment in the nighttime with the intent to commit a felony therein. State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976); State v. Bell, 284 N.C. 416, 200 S.E.2d 601 (1973). Defendant contends that his inquiry about "Johnny" was at least some evidence that he did not initially intend to commit the felony of rape when he illegally entered the victim's home; rather, he was merely trying to find an acquaintance. If this evidence truly had any tendency to negate the existence of defendant's felonious intent, it would have unquestionably required the judge to submit the lesser crime of non-felonious breaking and entering, G.S. 14-54(b), in addition to the indicted charge of first degree burglary, G.S. 14-51. See also State v. Cooper, 288 N.C. 496, 219 S.E.2d 45 (1975). We are not, however, persuaded that defendant's opening query about "Johnny's" whereabouts, standing alone, had any such proclivity whatsoever. The State's uncontradicted evidence showed the following.
Ms. Womble was aroused from her sleep in the early morning hours of 23 September 1980 by someone "knocking and bamming" on the front door of her apartment. Her husband was at work. She did not get up to see who was at the door. A few minutes later, she heard someone pulling at the screen to her bedroom window. She asked, "Who is it?" and saw an individual run away. That man was wearing light-colored pants and shirt. [When police officers later apprehended defendant in Ms. Womble's apartment, he was wearing khaki pants and a white striped shirt.] Ms. Womble got up, shut the window and barred it. After her return to bed, she rolled over and glanced through the other bedroom into the kitchen. She saw a man's hand by the refrigerator. She began screaming, jumped up and locked her bedroom door. The man pushed the door open and stood there swinging an opened hawkbill knife back and forth. He asked her, "Where is Johnny?" Thereupon, Ms. Womble immediately recognized the intruder as Thomas Walter Wright, the defendant, a man who had been to her apartment once before, some two months earlier, in the company of Johnny Richardson. She told defendant that Johnny did not live there. He then asked, "What are we going to do?" Ms. Womble asked him what he wanted, and he replied, "You know what I want." Defendant put the knife against her throat and ordered her to take off her clothes. After she undressed, he pushed her onto the bed and pulled his pants down. As he continued to hold the knife against her head, defendant got on top of her and had sexual intercourse with her.
In light of these facts, it would indeed stretch one's imagination to the breaking point to say that defendant's question about "Johnny" was some indication, however slight, that his entry into the victim's home was not precipitated by a felonious intent. First, considering defendant's overall conduct throughout this continuous series of criminal events, his question, "Where is Johnny?" can be deemed as nothing more than a means to make certain that the victim was alone and that his evil design would not be thwarted, or interrupted, by unexpected interference. Second, it is evident that an individual, having only innocent intentions, does not break into another's *505 home in the middle of the night and break through a locked bedroom door, while carrying an opened knife, just to find out where someone else might be. In sum, the State's evidence, if believed, compelled a single rational conclusion: that defendant unlawfully entered an occupied dwelling in the nighttime with only one thing on his mindto rape this woman. Thus, it was not error on this record for the trial court to reject defendant's requested instructions on non-felonious breaking and entering.
Defendant also believes that the trial court should have instructed the jury about attempted first degree rape and assault with a deadly weapon. In this, too, he is mistaken. Instructions on the lesser included offenses of first degree rape are warranted only when there is some doubt or conflict concerning the crucial element of penetration. See State v. Hall, 293 N.C. 559, 238 S.E.2d 473 (1977); State v. Davis, 291 N.C. 1, 229 S.E.2d 285 (1976). Such is not the case here, and defendant's argument in this regard simply misses the mark.
In pertinent part, the victim testified on direct examination, as follows, about what happened after defendant pushed her onto the bed:
After he said, "I'm not going to keep on laying here," he kept on saying what we were going to do, and, "I'm not going to keep on laying here," and he said, "You know what I want you to do," so I reached down and I inserted his penis inside my vagina.
....
After I inserted his penis into my vagina, he started to having sex with me. I couldn't think of no way to get him off. I didn't know how to get him up. Yes, he was moving, in a round ways position. He was just moving this part of his body, right here, around his hips.
On cross-examination, the victim again stated:
We were lying on the bed and he said, "I'm not going to keep lying here." At that time he almost asked me to put his penis in my vaginahe had a knife in the top of my head and was asking me what we going to do, and "I'm not going to keep lying here." At that time, it wasn't a thing to itthat I thought he wanted to put his penis in, I knew what he wanted me to do. So, I put his penis into my vagina because he told me he'd find me before the police found me if I turned him in.
This evidence plainly established the accomplishment of penetration and performance of the sex act. Nonetheless, defendant contends that the victim contradicted this testimony upon further cross-examination:
Q. Didn't you make this statement to Detective Brady, he then tried to put his penis inside my vagina but couldn't get it in?
A. Yes, I did, but he did get inside me.
Q. Then you did tell Mr. Brady that he could not get his penis in your vagina, didn't you?
A. Yes, I did.
Q. So that is correct, isn't it, you told Mr. Brady that?
A. Yes, but I said he put it in himself. He kept right on trying and he would not get up.
I said that I did it, that I put it in, but he did not get up. By he did not get up, I mean he would not get up until he got himself up to the point where he wanted to be and that's when I asked him right after he penetrated inside of me and he started having sex with me, I did not move. I just laid there, and I asked him did he want something to eat. I made him mad when I asked him that. In other words, we were having sex and I said something about eating in the middle of it and that made him mad.
(Emphases added.)
It suffices to say that, at most, this testimony raised a question or conflict about how defendant's penis initially entered the victim's vagina. It had absolutely no tendency to negate the occurrence of penetration itself. Indeed, we find that the State presented overwhelming and uncontradicted evidence on this point. This being so, *506 defendant has failed to show the existence of any evidence in this record to support submission of attempted rape and assault with a deadly weapon to the jury as possible alternative verdicts. Defendant was either guilty of first degree rape, or not guilty. The assignment of error is overruled.
Defendant finally argues that certain remarks of the district attorney, in his closing argument to the jury, require a new trial. We disagree. Although counsel must respect certain well delineated boundaries thereto, wide latitude is permitted in jury argument. However, only the law and facts in evidence, as well as all reasonable inferences arising therefrom, may be properly argued to the jury. State v. Lynch, 300 N.C. 534, 268 S.E.2d 161 (1980); State v. King, 299 N.C. 707, 264 S.E.2d 40 (1980); State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974). Indeed, fair play prohibits counsel from travelling outside the trial record and propounding extraneous facts to the jury. See State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), death sentence vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972). In the instant case, defendant contends that the district attorney did just that by attempting to argue as follows:
While we're talking about it, I want to say to you, first of all, that force can be the threatened use of force such as holding a knife to the victim's throat to procure her submission.
The Supreme Court in 1967 did address that and said that evidence tending to show that four defendants had the sixteen year old victim alone at night in an automobile driven by them
MR. HARRELSON: I object.
THE COURT: Objection sustained as to that.
Only this excerpt was printed in the record for our review.
We perceive that the facts of other cases would ordinarily be inappropriate topics for jury argument. State v. Spence, 271 N.C. 23, 155 S.E.2d 802 (1967), vacated on other grounds, 392 U.S. 649, 88 S. Ct. 2290, 20 L. Ed. 2d 1350 (1968); State v. Board, 37 N.C.App. 581, 246 S.E.2d 581 (1978), rev'd on other grounds, 296 N.C. 652, 252 S.E.2d 803 (1979); State v. Royal, 7 N.C.App. 559, 172 S.E.2d 901 (1970). See generally, 75 Am.Jur.2d Trial § 279 (1974). Nevertheless, we need not specifically decide here whether the district attorney should have been allowed to refer to the facts of another case for the apparent purpose of explaining the law regarding the element of force in rape cases. The district attorney was interrupted in mid-sentence by defendant's objection and did not complete the analogy. Since the trial judge promptly sustained defendant's objection, defendant's only cause for complaint now is that the trial court did not, on its own motion, give some sort of curative instruction on the matter. We hold that the judge was not obligated to do so in the absence of a request and that the district attorney's incomplete remark, about the 1967 case, if it was improper at all, was at most a "minor transgression" which was adequately cured by the judge's immediate sustention of defendant's objection thereto. See State v. Monk, 286 N.C. 509, 516, 212 S.E.2d 125, 131 (1975). A new trial is warranted only where the judge has failed to correct a gross or extreme impropriety in jury argument. State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979); State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976). Consequently, this assignment of error must be overruled.
Our review of the record discloses no prejudicial error.
NO ERROR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4216627/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
ANDRE MIMS, : No. 134 MM 2017
:
Petitioner :
:
:
v. :
:
:
PENNSYLVANIA BOARD OF :
PROBATION AND PAROLE AND :
ATTORNEY GENERAL JOSH SHAPIRO, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 31st day of October, 2017, the Application for Leave to File
Original Process is GRANTED, and the Petition for Writ of Mandamus and/or
Extraordinary Relief is DENIED. | 01-03-2023 | 10-31-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/2262744/ | 207 F.Supp. 718 (1962)
SHOPPERS FAIR OF ARKANSAS, INC., et al., Plaintiffs,
v.
The SANDERS COMPANY, Inc., Defendant.
No. 1616.
United States District Court W. D. Arkansas, Fort Smith Division.
August 17, 1962.
*719 Cole, Friedman & Deitz, New York City, Warner, Warner & Ragon, Fort Smith, Ark., for plaintiffs.
Bryan & Fitzhugh, Fort Smith, Ark., for defendant.
JOHN E. MILLER, Chief Judge.
STATEMENT
The above named plaintiffs filed their original complaint on October 25, 1961, in which they alleged that the acts of defendant, d/b/a "IGA Shoppers Fair," in Fort Smith, Arkansas, since its commencement in June 1961, constitute unfair competition with plaintiffs and an infringement of the rights of plaintiffs; that as a result of the sale operations and advertising of the plaintiffs and affiliates in states bordering Arkansas, the trade name and style, "Shoppers Fair," and distinctive means of plaintiffs' merchandising have developed and now have a secondary and distinctive trade name meaning to the public, and have come to and now do mean and stand for the stores, products and business operations of plaintiffs to the general public and to the general merchandising business throughout the United States; that the acts of the defendant impose a likelihood of injury to the business reputation of the plaintiffs, and that the distinctive quality of the trade marks, trade names, labels and forms of advertising of the plaintiffs would be diluted; that the plaintiffs intend to expand their line of business into the State of Arkansas and that the acts of the defendant are calculated to avail defendant of plaintiffs' valuable good will and are calculated to deceive and confuse the general public as to the source of goods purchased by them, so that the public is likely to believe that the goods of the defendant are goods of the plaintiffs, or that the plaintiffs are in some way connected with or in some way sponsors of defendant.
The defendant filed its answer on November 17, 1961, in which it denied the allegations of the complaint and specifically alleged that it commenced business as a retail grocery in Fort Smith under the name "IGA Shoppers Fair," at a time prior to incorporation of plaintiffs' Shoppers Fair of Arkansas, Inc., under the laws of the State of Delaware, or its qualification to do business in Arkansas; that the defendant operates a retail grocery store in which approximately 95 *720 percent of its sales in dollar volume are of groceries; that the defendant has not been in competition with any of the plaintiffs or their affiliates at any time or any place in that only 6 percent of defendant's sales are of wearing apparel, hardware, household appliances, sporting goods, cosmetics, etc., which are the line of goods sold by the plaintiffs or their affiliates; that the plaintiffs and affiliates have carried on none of their merchandising operations in the Fort Smith trade territory in particular, whereas the defendant's retail grocery operation has been carried on exclusively in Fort Smith.
Defendant further alleges that the words "IGA Shoppers Fair" have acquired a secondary meaning in the Fort Smith trade territory by means of advertising over radio and TV broadcasting stations and the newspapers, and in this manner has acquired valuable good will throughout the Fort Smith trade territory; that the words "Shoppers Fair" constitute a common name which the defendant had a right to appropriate in operation of its retail grocery store by using the trade name "IGA Shoppers Fair"; that the names "IGA Shoppers Fair" and "Shoppers Fair" are so dissimilar that no injury will result to the plaintiffs or affiliates by the defendant's use of its trade name, and that defendant commenced operations under the name "IGA Shoppers Fair" in good faith without prior knowledge of the use of the trade name "Shoppers Fair" by plaintiffs or affiliates.
On December 14, 1961, plaintiffs filed an amendment to their original complaint, in which they admitted that the plaintiff, Shoppers Fair of Arkansas, Inc., is a corporation organized under the laws of the State of Delaware, and maintains its principal offices in said state, that said plaintiff, Shoppers Fair of Arkansas, Inc., does no business in the State of Arkansas and does not maintain a place of business in the State of Arkansas at the present time.
On April 14, 1962, the plaintiffs filed a second amended complaint in which they reaffirmed and restated all allegations contained in the original complaint, and added as party plaintiffs the following:
Shoppers Fair of Baltimore, Inc.,
Shoppers Fair of Syracuse, Inc.,
Shoppers Fair of Rochester, Inc.,
Shoppers Fair of Evansville, Inc.,
Shoppers Fair of Indianapolis, Inc.,
Shoppers Fair of Detroit, Inc.,
Shoppers Fair of Akron, Inc.,
Shoppers Fair of Connecticut, Inc.,
Shoppers Fair of Flint, Inc.,
Shoppers Fair of Gary, Inc.,
Shoppers Fair of Columbus, Inc.,
Shoppers Fair of Dayton, Inc.,
Shoppers Fair of Saginaw, Inc.,
Shoppers Fair of South Bend, Inc.,
Shoppers Fair of West Vale, Inc.,
Shoppers Fair of Cleveland, Inc.,
Shoppers Fair of Wilmington, Inc.,
Shoppers Fair of East Detroit, Inc.,
Shoppers Fair of Livonia, Inc.,
Shoppers Fair of Pensacola, Inc.,
Shoppers Fair of Canton, Inc.,
Shoppers Fair of Down River, Inc.,
Shoppers Fair of Greece, Inc.,
Shoppers Fair of Speedway, Inc.,
Shoppers Fair of Battle Creek, Inc.,
Shoppers Fair of Jackson, Inc.,
Shoppers Fair of Lansing, Inc., and
Mangel Stores Corporation.
The plaintiffs further alleged that all of the plaintiffs including the additional ones are corporations organized and existing under the laws of the State of Delaware and constitute the affiliated corporations referred to in the original complaint, and that Mangel Stores, Inc., is the parent corporation and is the owner of all outstanding common stock of each of the co-plaintiffs.
On May 21, 1962, the defendant filed its answer to the amended complaint, in which it reaffirmed and restated all the allegations and statements set forth in its original answer as to each added plaintiff set forth in the amended complaint.
The case was tried to the court on May 22 and 23, 1962, and at the conclusion of the presentation of the testimony, it was *721 taken under advisement by the court subject to submission by the parties of briefs in support of their respective contentions. The briefs have been received, and the court, having considered the pleadings, the testimony adduced at the trial, the exhibits and briefs of counsel, now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.
FINDINGS OF FACT
1.
The plaintiff, Mangel Stores, Inc., is a corporation incorporated under the laws of the State of Delaware with its principal office and place of business in New York City, New York.
2.
The plaintiff, Shoppers Fair of Arkansas, Inc., is a corporation incorporated under the laws of the State of Delaware. On the 11th day of August, 1961, it filed its application with the Secretary of State of Arkansas for authority to do business in Arkansas. However, Shoppers Fair of Arkansas, Inc., does no business in the State of Arkansas and does not maintain a place of business in the State of Arkansas, but it has designated an agent for service of process, which agent is a resident of Little Rock, Arkansas.
3.
The remaining co-plaintiffs are corporations incorporated under the laws of the State of Delaware with their principal offices and places of business in states other than the State of Arkansas.
4.
The defendant is a corporation incorporated under the laws of the State of Arkansas with its principal office and place of business in the City of Fort Smith, Arkansas.
5.
The amount in controversy in this cause exceeds the sum of $10,000.00, exclusive of interest and costs.
6.
The plaintiff, Mangel Stores, Inc., hereinafter called Mangel, was incorporated in 1929 and has been in continuous operation since that date. Prior to 1956 Mangel was the parent corporation of a chain of downtown retail department stores with department stores downtown in the larger cities in several states. These department stores operated in a conventional manner to the extent that sales people were employed to wait on customers and sell items in each individual department.
Later in 1955 Mangel became aware of a falling-off of business in its downtown department stores, and its officers sought a new means of merchandising its usual department store items. At that time Mangel became interested in developing another method of merchandising retail items, which consists of a self-service discount type of operation similar to the operation of supermarkets located in suburban shopping centers. The virtue of this new operation was that it would allow the plaintiff to continue to sell high-quality national brands of merchandise at discount prices by eliminating the need of sales people along with increasing the volume of sales characteristic of supermarket types of operations.
Mangel adopted the name "Shoppers Fair," which was to be applied to each of these new supermarket-type department stores because it considered the name to be an apt description of this form of retail merchandising. Since it contemplated more than one of this type department store, it distinguished each Shoppers Fair corporation by adding its geographical location either by designation of the city or the state in which it was to carry on its operations. Although Mangel did not register this particular trade name, it investigated the possibility of prior appropriation, and did not find there had been any prior users of the trade name "Shoppers Fair."
The first of the new enterprises, designated "Shoppers Fair of Bridgeport, Inc.," commenced operations early in 1956, and since that date Mangel has *722 caused to be incorporated an increasing number of Shoppers Fair discount department stores in various states throughout eastern, southern, southwestern and midwestern United States. This adopted method of retail merchandising has proven so successful that Mangel has been disposing of its conventional downtown department stores at every opportunity, and in the last two or three years has put into operation nine or ten new Shoppers Fair discount department stores each year.
7.
Each of the co-plaintiffs, the various Shoppers Fair discount department stores with the exception of Shoppers Fair of Arkansas, Inc., which has not commenced to do business in Arkansas, is actively engaged as a discount department store, the essence of which operations is uniformity. This results from the fact that each of these co-plaintiffs, including Shoppers Fair of Arkansas, Inc., is a wholly owned subsidiary of Mangel, the parent corporation and owner of all outstanding common stock of each of the co-plaintiffs.
Since Shoppers Fair of Tulsa, Inc., is located the shortest distance from Fort Smith (138 miles), and since the only evidence and testimony introduced that pertained to the operations of a Shoppers Fair store in particular was based on the operations of the Shoppers Fair of Tulsa, this court assumes that these operations represent a typical method of the operation of the other Shoppers Fair stores, aside from any special facts existing in the Tulsa trade area itself.
The Shoppers Fair of Tulsa, Inc., hereinafter called Tulsa, commenced its operations on September 29, 1960, at its present location in the Nathan Hale Shopping Center in Tulsa. There are a number of other retail establishments located in this same shopping center, all of which are considered by the plaintiff to be noncompetitive. Such establishments include, but are not confined to, a grocery supermarket, florist, pharmacy, hardware store, appliance dealer and shoe repair.
Tulsa's line of goods sold by the various departments consists of what is known as "hard" and "soft" goods, i. e., ready-to-wear clothing, cosmetics, appliances, hardware and a number of other nonperishable items. Shopping carts are made available for the use of customers while serving themselves, and most of the employees, other than the manager and his office staff, are engaged either in stocking the counters or shelves, or in checking out the customers after they have completed their shopping.
The name "Shoppers Fair" figures prominently in the store's operations. Although it appears on very few items of merchandise offered for sale, it does appear on the smock-like uniforms worn by the employees, on all of the price tags, on banners and signs posted throughout the interior of the store, and on paper bags and other wrappings of the packages. In these instances the name "Shoppers Fair" appears in light-colored letters on a dark oval background. The above device is in two forms. The first has no other lettering other than "Shoppers Fair." The other form has the words "Shoppers Fair" in large letters and above them appears the following in smaller letters: "Complete discount department store," and under the words "Shoppers Fair" appears the following in smaller letters: "Everything for the family and home." The same device appears in the newspaper ads, on the store's stationery, and on boxes and tape used in mailing. The store building proper is designated as "Shoppers Fair," which words consist of large free-standing letters. Also, in the parking lot in front of the building the words "Shoppers Fair" appear on a pylon-type of sign.
Since it commenced operations in 1960 the plaintiff has carried on an extensive campaign of advertising by use of the following media: both of the Tulsa newspapers, the Tulsa radio stations, both Tulsa TV stations, billboards on roads leading to and from downtown Tulsa, and by the use of direct mailing to Tulsa residents of sale notices. Tulsa has ordered no advertising through the *723 Fort Smith newspapers, radio stations, or the one Fort Smith TV station.
The trade area of the City of Tulsa, named the "Magic Empire," is stated by Tulsa businessmen to extend out to approximately a 150-mile radius, which would include eastern Oklahoma and western Arkansas. However, this trade area does not apply to Tulsa's line of business, which attracts the great majority of its customers from the metropolitan and suburban areas of the city proper. There have been only isolated instances, in which a customer has been asked to identify himself in connection with check cashing, by which Tulsa has ascertained that a customer is from eastern Oklahoma or western Arkansas.
8.
The defendant was incorporated in 1961 and began doing business under the trade name of "IGA Shoppers Fair" on June 8, 1961, in Fort Smith, Arkansas, as a grocery supermarket. The initials "IGA" stand for Independent Grocers Alliance, of which the defendant is a member. Under the terms of its written agreement with IGA, defendant has agreed to buy its merchandise from a central warehouse set up by the IGA and to use its initials in designating the name of its retail store. IGA on its part permits the defendant to purchase its grocery items at a reduced price made possible by volume buying, and it services defendant's accounts and assists in setting up the store and maintaining its operation. Approximately 95 percent of the goods sold by the defendant consists of fresh fruits, milk products, canned vegetables, frozen vegetables, cereals, dried fruits, fresh vegetables, frozen fruits, canned fruits, meats, spices, dried vegetables, bread, pastries, milk, eggs and flour. Most of these items sold are national brands and IGA brands, and are competitively priced. The remaining 5 percent of the items sold consist of cosmetics and various small items for the home.
Prior to and at the time the defendant was ready to open its new grocery supermarket for business, it had not selected a suitable name. The President of the defendant, Mr. Bob Sanders, wanted to use the name "Shopper" or "Shoppers" in the new name but could not think of a suitable combination of words. The new store building, which had been painted in bright colors and had been gaily decorated for the opening, attracted much attention from various passers-by, one of whom suggested to Mr. Sanders that the store was decorated "just like a fair." Upon hearing this comment, Mr. Sanders combined the words "Shoppers" and "Fair" and decided on the name "Shoppers Fair," by which name, preceded by the initials "IGA", the store has been identified since its opening. At the time he named the store Mr. Sanders had never heard of the name "Shoppers Fair" either in Tulsa or anywhere else. Approximately two weeks after the defendant's opening as "IGA Shoppers Fair," Mr. Sanders was informed of Tulsa's existence, and it was not until he received a certified letter from the plaintiffs' attorneys, dated August 15, 1961, that he became aware of plaintiffs' extensive use of the trade name "Shoppers Fair" in trade areas other than that of Tulsa. In compliance with his agreement with IGA, those initials precede the name "Shoppers Fair" at all times and in every transaction and connection in which the store's name is used. The IGA products that the store sells bear no other name than the initials "IGA", such products being sold in all IGA stores irrespective of the store's local designation.
The IGA Shoppers Fair is the only business activity of the defendant, and that activity is confined to that of a grocery supermarket, which depends upon self-service by the customers and large volume sales for its income and is typical of any other grocery supermarket-type of operation.
The defendant has confined its daily advertising coverage to Fort Smith newspapers, radio stations, and Fort Smith's only TV station. The area of coverage of these advertising media roughly corresponds to what is known as the Fort *724 Smith trade area, which area covers between 10 and 14 counties in western Arkansas and eastern Oklahoma within a 50-60 mile radius, and is considered to be an isolated trade area among advertising and mercantile circles. In his testimony, Mr. Paul Latture, President of the Fort Smith Chamber of Commerce, characterized the Fort Smith trade area as an "isolated market." When asked the meaning of this term and its origin, Mr. Latture stated that such a term means that a given trade area is independent, i. e., it has all the services from its own advertising media; that it enjoys its own social, agricultural, and economic activities; and that all of the above services and activities can be found within this territory. With respect to Fort Smith, Mr. Latture stated that within the city limits, "we have all the services that are necessary for human beings to live." The vast majority of defendant's customers reside in the Fort Smith area proper.
9.
There have been very few incidents of confusion between the discount department store operation known as "Shoppers Fair of Tulsa, Inc.," and the grocery supermarket operation known as "IGA Shoppers Fair." In November 1961 an invoice for chocolates from the Rockwood Chocolate Company of Brooklyn, New York, to IGA Shoppers Fair was billed to Mangel as the parent corporation of the several Shoppers Fair discount department stores, which misunderstanding was cleared up when Mangel refused to pay same and returned the bill to the candy company, which then proceeded to correctly bill IGA Shoppers Fair for the shipment of candy. Salesmen for various suppliers from time to time have asked the personnel of Shoppers Fair of Tulsa, Inc., whether they have a branch in Fort Smith. In these cases their misapprehension was corrected by personnel of plaintiff, and there has been no record of any sales made or lost because of such mistake. Some customers have asked the same question of sales persons, but there, too, their mistakes have been pointed out and there is no record of any purchases having been made based on such mistakes. Within the last few months the Shoppers Fair discount department stores have begun to stock such items with the trademark "Shoppers Fair" as regular coffee, instant coffee, liquid detergent, all-purpose cleaner, floor wax, regular cleaner and floor cleanser. Milk and tea bags of the same trademark are programmed to be sold in the near future.
10.
The only indication of actual competition between the defendant and Tulsa appears to occur in those food and non-food items which both parties sell in their retail stores. Such items will include coffee, various cleansers, and cosmetics and toiletries, as well as minor household items. However, the overlap appears to occur mainly in those non-food items which the defendant stocks in order to supply any needs of the "impulse" grocery buyer, and in the case of Tulsa any food items that it stocked appear to cater to the same impulses of its customers. In other words, the overlap occurs in more or less subsidiary items carried by each party, Tulsa being primarily engaged in the selling of hard and soft nonperishable goods, and the defendant being engaged in the selling of various food items.
There is no indication that either party has lost business because of the other party's merchandising operations, nor does it appear that either party has traded upon or benefited from the other party's trade name.
11.
In keeping with its program of expansion, Mangel has incorporated "Shoppers Fair of Arkansas, Inc.," with an end in view of locating a store either in Little Rock or Fort Smith, and Mangel, through its officers, has conducted a thorough investigation of each location. At each location there are many factors to be taken into consideration, the most important of which consist of the situation of the store proper, leasing arrangements *725 that are available and potentialities of the trade area in general. At this time there is no indication as to whether Mangel has chosen either or both Little Rock or Fort Smith as a proposed location for a Shoppers Fair discount department store, and furthermore there is no indication as to the date that such choice will be made, or if made, when it will be acted upon.
DISCUSSION
The court's jurisdiction is based on diversity of citizenship and amount involved. The claim of plaintiffs is based upon the alleged infringement of a common-law trade name and not a federally registered trade name, and the court must follow the conflict of laws rule prevailing in the state in which it sits. Therefore, the whole substantive law of Arkansas is the applicable law. Klaxon Co. v. Stentor Electric Mfg. Co., (1941) 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; and Addressograph-Multigraph Corp. v. American Expansion Bolt & Mfg. Co., (7 Cir. 1941) 124 F.2d 706.
Since the plaintiffs conduct their operations in the State of Oklahoma and other states and the defendant conducts its operations in the State of Arkansas, the court is required to determine which law, under the Arkansas rules of conflict of laws, would govern the present case. In 148 A.L.R., page 142, this problem is taken up, and the editors of the annotation conclude that the rule that issues of substantive law in an action for unfair competition are governed by the law of the place of wrong requires a definition of what constitutes the place of wrong. In the situation before the court the question then arises whether the place of wrong is (1) the place where the plaintiffs conduct their business, or (2) the place where the defendant conducts its business and from which it sells its goods, or (3) the place where the defendant's goods are actually delivered to the purchaser who is allegedly deceived as to their origin. There have been no Arkansas cases or cases from any other jurisdiction which directly answer this question. However, in Leflar, The Law of the Conflict of Laws, (1959) Sec. 111, p. 210, it is stated:
"* * * The orthodox rule, with torts as with crimes, is that when an act operates across a state line its legal character is determined by the law of the place where it first takes harmful effect or produces the result complained of."
Taking these rules into consideration and the fact that the defendant conducts its business in Arkansas and its goods are actually delivered to the purchasers who are allegedly deceived in Arkansas, therefore the first harmful effect has occurred in Arkansas. Then it is apparent that under the Arkansas conflict of laws rules, the Arkansas substantive law governing unfair competition would apply to the instant case.
It has often been held that Arkansas law is in accord with the general law governing unfair competition, and a recent statement to this effect was made in the case of Liberty Mutual Ins. Co. v. Liberty Ins. Co. of Texas, (E.D.Ark. 1960) 185 F.Supp. 895, at page 903:
"To the extent that the rights of the parties to this action may be governed by Arkansas law, it may be said that the Arkansas law of trade-marks, trade names, and unfair competition appears to be orthodox and in accord with the general principles heretofore stated. See Liberty Cash Groceries, Inc. v. Adkins, 190 Ark. 911, 82 S.W.2d 28; Fine v. Lockwood, 179 Ark. 222, 14 S.W.2d 1109; Beneficial Loan Corporation v. Personal Loan & Finance Corporation, supra [D.C.], 100 F.Supp. [838], at page 845."
A preliminary contention of the plaintiffs is that the defendant, being a corporation, has no legal right to carry on its business under an assumed name, to-wit: "IGA Shoppers Fair." Actually this contention is not material at this stage of the proceedings since it was not pleaded in the complaint nor was any evidence introduced to support it. Ark. *726 Stat.Ann., Sec. 70-401 (1957 Repl.), which prohibits any person from conducting business under an assumed name unless duly registered, does not apply to any domestic or foreign corporation lawfully doing business in the state. Ark. Stat.Ann., Sec. 70-404 (1957 Repl.).
The main issue in the case is whether the defendant is guilty of unfair competition by means of trade name infringement. In answering this question the court must resolve the subsidiary issues of (1) whether the trade names involved in the present action have acquired a secondary meaning in the Fort Smith trade area; and (2) whether confusion exists at present or is likely to arise in the future in the mind of the ordinary purchaser which would result in one party gaining an unfair advantage over the other.
Although neither side has registered the trade name "Shoppers Fair," all contend that the name has acquired a secondary meaning in the Fort Smith trade area which entitles each of them to protection from infringement by the other, which amounts to unfair competition. This court and many other courts have had occasion to put the concept of unfair competition by means of trade infringement, as well as the subsidiary concept of secondary meaning which a trade name must acquire in order to be protected in the first place, in their proper relationship, as well as to give consideration to the public policy on which such actions as the present one are based. In King Pharr Canning Operations v. Pharr Canning Company, 85 F.Supp. 150, at page 153 (W.D.Ark.1949), this court stated:
"The law of trade-marks is ordinarily inseparably connected with the law of unfair competition, with the former being but a part of the broader field of the latter. Thus, even though a mark has not been registered or is incapable of becoming a valid trade-mark, because it may not be exclusively appropriated by any one person, still, in a proper case, one may be protected under the law of unfair competition from the acts of another in passing off the latter's goods or business for the goods or business of the former. The protection, of course, runs to the business man or merchant injured and to the public, the protection of the public from such deceitful practices being of primary consideration. Too, there is the underlying principle of promoting honesty and fair dealing. See: Nims, Unfair Competition and Trade-Marks, Volume 1, Chapter 11, page 36, for a discussion of the basis of the action for unfair competition."
Several decisions on this subject deal in matters involving trade-marks of goods rather than in trade names as are involved in the present case. The case of American Steel Foundries v. Robertson, 269 U.S. 372, at page 380, 46 S.Ct. 160, at page 162, 70 L.Ed. 317 (1926), clears up any confusion as to the difference between a trade-mark and a trade name, in which the court stated:
"Whether the name of a corporation is to be regarded as a trade-mark, a trade name, or both, is not entirely clear under the decisions. To some extent the two terms overlap, but there is a difference more or less definitely recognized, which is, that, generally speaking, the former is applicable to the vendible commodity to which it is affixed, the latter to a business and its good will. See Ball v. Broadway Bazaar, 194 N.Y. 429, 434-435, [87 N.E. 674]. A corporate name seems to fall more appropriately into the latter class. But the precise difference is not often material, since the law affords protection against its appropriation in either view upon the same fundamental principles."
The two essential elements of an unfair competition action based on trade-name infringement were stated in the case of McGraw-Hill Publishing Co. v. American Aviation Associates, 73 App. D.C. 131, 117 F.2d 293, at page 296 (D.C. *727 Cir.1940), in which the court made this statement:
"* * * Unfair competition in the trade name field is not concerned with intent or plan; it is enough if the acts of the defendant in light of the plaintiff's reputation result in an unfair benefit to the former. To constitute unfair competition in respect to a trade name, two elements must be present. The name must have acquired a secondary meaning or significance that identifies the plaintiff; the defendant must have unfairly used the name or a simulation of it against the plaintiff."
The concept of secondary meaning has been defined recently in the case of Liberty Mutual Ins. Co. v. Liberty Ins. Co. of Texas, 185 F.Supp. 895, at page 903 (E.D.Ark.1960), in which the court stated:
"There are certain names, marks, and symbols which in their primary sense are merely generic or descriptive and do not ordinarily indicate the origin of goods or services. Such names, marks, or symbols, when used in their primary sense, cannot form the subject matter of a trade or service mark. However, a name, mark, or symbol by long and exclusive use and advertising by one person in the sale of his goods and services may become so associated in the public mind with such goods or services that it serves to identify them and distinguish them from the goods or services of others. When such an association exists, the name, mark, or symbol is said to have acquired a `secondary meaning' in which the original user has a property right which equity will protect against unfair appropriation by a competitor. Armstrong Paint & Varnish Works v. Nu-Enamel Corporation [305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195], supra; Katz Drug Co. v. Katz, 8 Cir., 188 F.2d 696; Beneficial Industrial Loan Corporation v. Kline, 8 Cir., 132 F.2d 520; Beneficial Loan Corporation v. Personal Loan & Finance Corporation, D.C.Ark., 100 F.Supp. 838; 87 C.J. S., [Trade-Marks, Trade-Names and Unfair Competition] supra, § 90. A trade-mark or a trade name may have acquired a secondary meaning in one locality but lack such a meaning in another. Schwartz v. Television Center, 89 U.S.App.D.C. 30, 189 F.2d 691; Beneficial Industrial Loan Corporation v. Allenstein, 5 Cir., 173 F.2d 38; Griesedieck Western Brewery Co. v. Peoples Brewing Co., 8 Cir., 149 F.2d 1019. Whether in a given case a name, mark, or symbol has acquired a secondary meaning is a mixed question of law and fact `with the factual aspects predominating.' Beneficial Loan Corporation v. Personal Loan & Finance Corporation, supra, 100 F.Supp. at page 846."
Under the above definition plaintiffs contend that the name "Shoppers Fair" has become universally associated with its discount retail operations in the sale of hard and soft goods as carried on in Tulsa and in trade areas located in other states. By the same token the defendant contends that the name "Shoppers Fair" preceded by the initials "IGA" conveys only one meaning in the Fort Smith trade area, and that is the defendant's operation of the retail grocery supermarket.
This court, having carefully considered all of the facts and the applicable law, is of the opinion that insofar as the plaintiff, "Shoppers Fair of Tulsa, Inc.," and other plaintiffs are concerned, their trade name of "Shoppers Fair" has acquired a secondary meaning limited to the Tulsa trade area and other trade areas, which areas do not include Fort Smith. As for the defendant, the name of its supermarket, "IGA Shoppers Fair," has acquired a secondary meaning in the Fort Smith trade area only. As for the plaintiff, "Shoppers Fair of Arkansas, Inc.," since it has not commenced operation at all, its name has no secondary meaning in any trade area of the State of Arkansas. As stated by the *728 court in the case of Beneficial Loan Corp. v. Personal Loan & Finance Corp., (E.D. Ark.1951) 100 F.Supp. 838, at page 848:
"* * * The fact that a trade mark or trade name may have acquired a secondary meaning in one locality does not mean that it has acquired such meaning in an entirely different trade area where the public is unfamiliar with such name or mark. Liberty Cash Groceries, Inc. v. Adkins [190 Ark. 911, 82 S.W.2d 28], supra; Fine v. Lockwood [179 Ark. 222, 14 S.W.2d 1109], supra; Katz Drug Co. v. Katz, both decisions, supra; Griesedieck Western Brewery Co. v. Peoples Brewing Co., 8 Cir., 149 F.2d 1019, 1022; Beneficial Industrial Loan Corporation v. Allenstein, 5 Cir., 173 F.2d 38; Schwartz v. Television Center, [89 U.S.App.D.C. 30] D.C.Cir., 189 F.2d 691, 692. In the case last cited the Court quoted with approval from Nims, `Unfair Competition,' 3d Ed., Section 37, where it is said: `Secondary meaning is association, nothing more. It exists only in the minds of those of the public who have seen or known or have heard of a brand of goods by some name or sign and have associated the two in their minds.'"
The association in the public mind in each of the above trade areas has been confined to the secondary meaning of the dominant trade name in the respective trade area, and there has been no overlapping of one secondary meaning into another trade area to any noticeable extent.
In this connection plaintiffs contend that due to the large number of their sister stores, which surround the State of Arkansas, the secondary meaning of the name "Shoppers Fair" has all but pervaded the atmosphere of the whole State of Arkansas, and the Fort Smith trade area particularly, and since the property right of the prior appropriator or user in the name follows the business, defendant has no right to continue to use the same name in the conduct of its retail operations in the Fort Smith trade area. This reasoning is without merit and carries little weight, for as the court said in the case of Katz Drug Co. v. Katz, (E.D.Mo.1950) 89 F.Supp. 528, at page 536:
"Plaintiff, in support of its argument, emphasizes the fact that it operates a system of chain stores. `It makes no difference that the first user of a trade name operates his own business through multiple units located in different parts of the state. The right of a chain store operator is no different than that of others. (Citations.)' Direct Service Oil [Co.] v. Honzay, 1941, 211 Minn. 361, 2 N.W.2d 434, 437, 148 A.L.R. 1."
The Eighth Circuit Court of Appeals in its opinion affirming the same case stated in 188 F.2d 696, at page 699, as follows:
"It appeared to the trial court that although the cases of Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713, United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141, and Sweet Sixteen Co. v. Sweet `16' Shop, 8 Cir., 15 F.2d 920, do not present the particular state of facts found to exist in this case, they do furnish a guide to the law to be applied. They settle in this circuit that there is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade with which the mark is employed and that as stated by the trial court, `An injunction [to protect exclusive enjoyment of trade name] must be limited in regard to territory.' See Cook Chemical Co. v. Cook Paint & Varnish Co., 8 Cir., 185 F.2d 365.
* * * * * *
"The appellant's contention that because its trade name has had secondary meaning in Kansas City, Missouri, it should be held to have the same meaning throughout the state of Missouri and therefore in the St. Louis area, appears to be *729 without merit. It is in conflict with the concept of property in a trade name being exclusively a right appurtenant to an established business or trade with which the mark is employed. The exception appears to be the cases that rest on state statutes conferring state-wide protection. See e. g. ABC Stores, Inc. v. T. S. Richey & Co., Tex.Com.App., 280 S. W. 177."
The plaintiffs further contend that their trade name is "coined" and "fanciful", and therefore under the rule in the case of Stork Restaurant v. Sahati, (9 Cir. 1948) 166 F.2d 348, it is entitled to a higher degree of protection. This court does not agree that under the present facts plaintiffs' name is so unique as to deserve extra protection. Since it has not attained the status of a technical name, plaintiffs must rely on the doctrine of secondary meaning in order to gain protection, and in this respect any peculiar characteristic of the name in question is but one of many factors to be taken into consideration. In the case of Landers, Frary & Clark v. Universal Cooler Corp., (2 Cir. 1936) 85 F.2d 46, at page 48, Judge Learned Hand aptly evaluated the possibility of degrees of secondary meaning as follows:
"* * * It is quite true that, just as a coined word is easier to protect than a word of common speech upon goods on which the owner has used it, so it is easier to prevent its use upon other kinds of goods. The proprietary connotation, `secondary meaning,' of a word of common speech is harder to create and easier to lose, and its fringe or penumbra does not usually extend so far as that of a coined word. But that is matter of proof and of that alone; if the owner can in fact show that the fringe does extend to other goods there is no reason why his interest should not be recognized. His interest is exactly the same as though the mark were a coined word (his reputation and his chance to extend his sales); and while the plagiarist has a better excuse because the law recognizes that all have an interest in the free use of the language, the conflict is between the same interests as when the owner seeks to protect the name upon goods which he has sold. It would therefore be wrong to make any absolute distinction between coined, and colloquial, names. Nor do such cases as Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713, and United Drug Co. v. [Theodore] Rectanus Co., 248 U. S. 90, 39 S.Ct. 48, 63 L.Ed. 141, offer any difficulty."
Therefore to the extent that the doctrine of secondary meaning is applicable to the instant case, it is the opinion of the court that the trade name "Shoppers Fair" as used by any of the plaintiffs as discount department stores does not extend beyond the boundaries of any of their respective trade areas, and in no case has their use of the name "Shoppers Fair" extended to any part of the State of Arkansas. Specifically this applies to the plaintiff "Shoppers Fair of Tulsa, Inc.," with reference to the Fort Smith trade area in western Arkansas. As for the defendant, its use of the trade name "IGA Shoppers Fair" has acquired a secondary meaning in the Fort Smith trade area as a grocery supermarket, but it is limited to this particular trade area.
Since the element of secondary meaning applies to the use of "Shoppers Fair" as a trade name by the plaintiffs and the defendant in their respective spheres of operation, the court must determine whether the defendant is guilty of unfair competition by the present use of the name "IGA Shoppers Fair" and whether its further use will result in unfair competition.
The doctrine of unfair competition with respect to infringement on a trade name was recently defined in the case of Liberty Mutual Ins. Co. v. Liberty Ins. Co. of Texas, 185 F.Supp. at page 903, supra, as follows:
"In a case of this kind `unfair competition' may be defined, in general, *730 as a course of dealing which leads, or is likely to lead, the public into believing that the goods or services of one supplier are those of another. 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 13, and cases there cited. While it has been held that a charge of unfair competition cannot be sustained absent proof of subjective fraudulent intent on the part of the defendant, the rule now seems to be that `proof of a fraudulent intent is not required where the necessary and probable tendency of defendant's conduct is to deceive the public, and pass off his goods or business as and for that of plaintiff, especially where only preventive relief against continuance of the wrong is sought or granted.' 87 C. J.S., supra, § 93, pages 334-335. And in Armstrong Paint & Varnish Works v. Nu-Enamel Corporation, supra, 305 U.S. at page 325, 59 S.Ct. at page 196, it was said that the facts supporting a suit for infringement of a trade-mark and one for unfair competition are substantially the same."
This court has had occasion to define unfair competition by appropriation of another's trade name in advertisements in the case of Heuer v. Parkhill, (W.D. Ark.1953) 114 F.Supp. 665, at page 670:
"The following quotations illustrate the law relating to the copying of advertising matter by competitors:
"`The general rule is that the appropriation of another's advertising matter or method is not of itself unfair competition, although it may become such where it induces or may induce the public to suppose that in dealing with the appropriator they are dealing with or obtaining the product or services of the originator * * *'. 52 Am.Jur., Trademarks, Tradenames, and Trade Practices, Section 116, Page 595.
"`Unfair competition begins where imitation results in the deception of the customers of the party complaining.' International Heating Co. v. Oliver Oil Gas Burner & Machine Co., 8 Cir., 288 F. 708, 711, 30 A.L.R. 611.
"`At 26 R.C.L. 875 it is stated: "Unfair competition ordinarily consists in the simulation by one person for the purpose of deceiving the public, of the name, symbols, or devices employed by a business rival, or the substitution of the goods or wares of one person for those of another, thus falsely inducing the purchase of his wares and thereby obtaining for himself the benefits properly belonging to his competitor."' Esskay Art Galleries v. Gibbs, 205 Ark. 1157, 1162, 172 S. W.2d 924, 926."
See, Southwest Industrial Products, Inc. v. Ezee Stone Cutter Mfg. Co., (W.D. Ark.1957) 157 F.Supp. 208, aff'd 8 Cir., 262 F.2d 183.
In actions similar to the instant one the general rule was that the prior appropriation of the trade name was protected so long as there was direct competition from any other would-be appropriator. This rule was stated by the Eighth Circuit in the case of Sweet Sixteen Co. v. Sweet "16" Shop, (8 Cir. 1926) 15 F. 2d 920, at page 923:
"Confessedly, then, the general rule is that, while the first appropriator and user of a trade-mark owns such mark and is entitled to protection by the courts in the use thereof, against subsequent users on the same class of goods, such protection will not be afforded as against a subsequent user and appropriator, who in good faith adopts and uses the mark in territory into which the goods of the first appropriator have not penetrated and have not been used or sold. Hanover Milling Co. v. Metcalf, supra; United Drug Co. v. Theodore Rectanus Co., suppra."
However, the trend is away from this strict requirement of direct competition, and the Eighth Circuit Court of Appeals *731 has had occasion in two contemporaneous cases to express this modern trend. In the case of General Finance Loan Co. v. General Loan Co., 163 F.2d 709, at page 711, the court made the following statement:
"It is true that under the early English and American cases absence of direct competition in the same identical field of business was a good defense to a charge of unfair competition. But in this country that rule has been progressively relaxed in many jurisdictions in suits to enjoin unfair competition. 52 Am.Jur., Trademarks, Tradenames, Etc., §§ 97, 142; Lady Esther, Ltd., v. Lady Esther Corset Shoppe, Inc., 317 Ill.App. 451, 46 N.E.2d 165, 148 A.L.R. 6; Aunt Jemima Mills Co. v. Rigney & Co., 2 Cir., 247 F. 407, L.RA.1918C, 1039; British-American Tobacco Co., Ltd. v. British-American Cigar Stores Co., 2 Cir., 211 F. 933, Ann.Cas.1915B, 363."
The same court in the case of Hanson v. Triangle Publications, 163 F.2d 74, at page 78, then stated the present law on this subject:
"* * * Under present general law, the use of another's mark or name, even in a noncompetitive field, where the object of the user is to trade on the other's reputation and good will, or where that necessarily will be the result, may constitute unfair competition. See e.g. Yale Electric Corporation v. Robertson, 2 Cir., 26 F.2d 972, 974; Del Monte Special Food Co. v. California Packing Corporation, 9 Cir., 34 F.2d 774; Atlas Diesel Engine Corp. v. Atlas Diesel School, D.C., E.D.Mo., 60 F.Supp. 429. This inherently would seem to imply though the cases are not unanimous in their theory such a reputation and good will in the circumstances as to make it likely that the public will be confused or deceived by the particular use."
Returning to the General Finance Loan Co., 163 F.2d at page 712, supra, the court considered what it described as "the ultimate question" of the effect of confusion on the general public:
"* * * The ultimate question is not, therefore, whether the evidence shows actual confusion but whether confusion is likely to result in the use of similar corporate names of parties engaged in kindred businesses in the same territory, or whether the names of the defendants are so distinguished from that of the plaintiff as to prevent any probable confusion. Furniture Hospital v. Dorfman, 179 Mo.App. 302, 166 S.W. 861, 863. The question of confusion is one of fact, but it is not incumbent upon the plaintiff to allege and prove actual confusion or deception, but only such similarity of names with other facts and circumstances as to show that confusion may result. Supreme Lodge of World, Loyal Order of Moose v. Paramount Progressive Order of Moose, 224 Mo.App. 276, 26 S.W.2d 826; Mary Muffet, Inc., v. Smelansky, Mo.App., 158 S.W.2d 168."
Thus, under the present general rule the criteria of confusing the public mind has been carried to the extent of eliminating the necessity of direct competition not only in a geographical sense but also in the same class goods. This rule was stated in Brown & Bigelow v. B · B Pen Co., (8 Cir. 1951) 191 F.2d 939, at page 944:
"* * * But when considering the question whether or not confusion will be caused in the minds of purchasers as to the origin of products, the existence or absence of competition does not rule out consideration of the fact that the parties are engaged in business with different classes of trade. In Cook Chemical Co. v. Cook Paint & Varnish Co., supra, the court recognized and gave consideration to the fact that the parties were not selling the same product, but the court found in that case that there was nevertheless confusion in the minds of the public *732 and a mistaken belief that Cook Chemical's products emanated from the Cook Paint & Varnish Company."
In spite of the judicial trend which acknowledges that actual competition is not the sole criteria of unfair competition, and that the latter may result from the dilution of business good will in ways not connected directly with the possible loss of a sale through deception or confusion as established in the case of Stork Restaurant v. Sahati, supra; yet in cases where there is an absence of market competition or confusion of source, the courts have placed considerable weight on the factor of complete absence of any competition at all. Fairway Foods v. Fairway Markets, (9 Cir. 1955) 227 F.2d 193. In the case of Sunbeam Furniture Corp. v. Sunbeam Corp., (9 Cir. 1951) 191 F.2d 141, the court stated as follows beginning at page 144:
"The California corporation also claims that the trial court erred in issuing its injunction against its use of the name `Sunbeam Furniture Corp.' As to this aspect of the case, the evidence reveals neither market competition nor confusion of source. The business to which the word `Sunbeam' is applied as a mark is entirely different from that of the Illinois corporation. It is true that actual competition, while an important factor to consider, is not a necessity to the granting of relief. Del Monte Special Food Co. v. California Packing Corp., 9 Cir., 1929, 34 F.2d 774; Stork Restaurant v. Sahati, 9 Cir., 1948, 166 F.2d 348; Safeway Stores, Inc., v. Dunnell, 9 Cir., 1949, 172 F.2d 649, certiorari denied, 337 U.S. 907, 69 S.Ct. 1049, 93 L.Ed. 1719; Lane Bryant Inc., v. Maternity Lane, Limited, of California, 9 Cir., 1949, 173 F.2d 559. Nevertheless, where market competition is absent, it is a corollary that the likelihood of confusion in the mind of the buyer decreases."
In the instant case the evidence does not establish direct market competition between the parties either geographically or by similarity of goods sold. Each party is situated in a different and distinct trade area and is engaged in high volume sales of low-cost merchandise, of which there is not more than a 5 to 6 percent overlap in similarity of the goods sold.
Thus, in the absence of competition plaintiff must establish confusion of source which includes dilution of the senior appropriator's trade name by a knowing junior appropriator.
The doctrine of confusing similarity and its factors, upon which an action for unfair competition based on trade-name infringement lies, is stated in the recent case of Standard Oil Co. v. Standard Oil Co., (10 Cir. 1958) 252 F.2d 65, beginning at page 72:
"* * * There is confusing similarity `if prospective purchasers are likely to regard it [the offending designation] as indicating the source identified by the trade-mark or trade-name.' Factors bearing on the question of confusing similarity as stated in Restatement of the Law, Torts, vol. 3, sec. 729, pp. 592-593, were listed with approval by this court in Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568, 572. So far as pertinent these factors are:
"(1) Degree of similarity in appearance, sound and meaning;
"(2) Intent of the defendants in adopting and using the term * *; and
"(3) The degree of care likely to be exercised by purchasers.
* * * * * *
"While in some cases, particularly those involving labels, the question of confusing similarity may be determined by visual observation of the words, signs, or symbols involved, the test is not solely such a `juxtaposition comparison.' The setting in which the designations are used must be considered. As said in Avrick, *733 supra, 155 F.2d at pages 572-573:
"`It is the total effect produced by the designation in the mind of the ordinary purchaser, exercising due care in the market place.'"
* * * * * *
"Infringement is not to be determined on the basis of the words or symbols themselves to the exclusion of other considerations. It is not necessary for similarity to go only to the eye or the ear for there to be infringement. The use of a designation which causes confusion because it conveys the same idea, or stimulates the same mental reaction, or has the same meaning is enjoined on the same basis as where the similarity goes to the eye or the ear. Confusion of origin of goods may be caused alone by confusing similarity in the meaning of the designations employed. The whole background of the case must be considered."
As stated above, the first factor is degree of similarity of the trade names in question. As for the similarity of meaning, this court has stated already that the name "Shoppers Fair" in the Tulsa trade area has a secondary meaning distinct from the name "IGA Shoppers Fair" as used in the Fort Smith trade area both among retail customers and trades people. Of course, the names have a similar sound, but the initials "IGA" are sufficiently distinct to set apart the defendant's trade name from that of the plaintiff.
As to appearance, this court has found that the trade name of each party is depicted in a different manner, the most important of which is that the defendant's name is preceded by the initials "IGA". Plaintiffs contend the addition of these initials to a common trade name is not significant, but in the case of Daggett & Ramsdell, Inc. v. I. Posner, Inc. (C.C.P.A.1960) 277 F.2d 952, at page 954, the court stated the rule as follows:
"On several other occasions various courts have disregarded the surname in a trademark because it was determined that the rest of the mark was dominant. See California Prune & Apricot Growers Association v. Dobry Flour Mills, Inc., 101 F.2d 838, 26 CCPA 910; Ambassador East, Inc. v. Orsatti, Inc., 3 Cir., 1958, 257 F.2d 79; Miles Shoes, Inc. v. R. H. Macy & Co., Inc., 2 Cir., 1952, 199 F.2d 602. On the other hand, in a number of instances the surname has been found to be the dominant part of the mark, or at least significant (and perhaps no less dominant than the rest of it), and has, accordingly, been considered by the courts in determining the issue of the likelihood of confusion. Yard-Man, Inc. v. Savage Arms Corp., 220 F.2d 782, 42 CCPA 862; Best & Co. v. Miller, 2 Cir., 1948, 167 F.2d 374; New Yorker Hotel Corporation v. Pusateri, D.C.W.D. Mo.1949, 87 F.Supp. 294. Thus, it is apparent that a surname can be a significant or co-equal portion of a trademark and must not always be totally disregarded in deciding a question of confusing similarity."
This court is of the opinion that the presence of the initials "IGA," as a "surname" or "family" name denoting a "family" of grocery supermarkets, is significant in the present case not only because its distinctive appearance sets apart defendant's trade name of "Shoppers Fair" from the same trade name used by the plaintiffs, but the "IGA" itself has a secondary meaning in the trade areas of Tulsa and Fort Smith as well as in several other trade areas in Arkansas, Missouri and Oklahoma as an independent grocery supermarket chain. Thus, any use of the distinctive initials "IGA" by any merchant in the above trade areas, regardless of the name that follows, would designate him as a retail grocery supermarket proprietor, who is a member of the Independent Grocers Alliance.
The second factor bearing on the factor of confusing similarity is that of intent of the defendant in adopting and using the name "Shoppers Fair." A recent *734 statement of the liability of a knowing junior user is stated in the case of Pike v. Ruby Foo's Den, Inc., (1956) 98 U.S. App.D.C. 126, 232 F.2d 683, at page 686 as follows:
"The Federal cases are virtually unanimous against a knowing junior user. See, for example, Food Fair Stores, Inc., v. Food Fair, Inc., 1 Cir., 1949, 177 F.2d 177; Stork Restaurant, Inc., v. Sahati, 9 Cir., 1948, 166 F.2d 348; White Tower System, Inc., v. White Castle System, 6 Cir., 1937, 90 F.2d 67; Buckspan v. Hudson's Bay Co., 5 Cir., 1927, 22 F.2d 721, certiorari denied, 1928, 276 U. S. 628, 48 S.Ct. 321, 72 L.Ed. 739; Sweet Sixteen Co. v. Sweet `16' Shop, Inc., 8 Cir., 1926, 15 F.2d 920. Although all of these cases involve at least minor contacts by the senior user with the locale in which the junior user is doing business, so that knowing junior use is not the sole factor present, at least one commentator has concluded that `the presence of notice is the determinative factor, usually sufficient in itself to bar the second user's claim.' Developments in the Law Trade Marks and Unfair Competition, 68 Harv.L.Rev. 814, 858 (1955). The only Federal case we have found which seems to point in the opposite direction is Lerner Stores Corp. v. Lerner, 9 Cir., 1947, 162 F.2d 160, but in that case the trade name was the personal name of the junior user and he went to considerable pains to distinguish his enterprise from that of the senior user."
See, Faciane, d/b/a White Kitchen, v. Starner, (5 Cir. 1956), 230 F.2d 732.
The plaintiffs contend that not only did the defendant know of its prior use of the name "Shoppers Fair" when it opened its Fort Smith supermarket but the defendant continued to use the same name in order to fraudulently gain business for its grocery operations by trading on a nationally known name. The cases relied on by the plaintiffs are mostly cases in which the court found an express fraudulent intent or, at best, a weak excuse for the appropriation of a senior user's trade name. Lincoln Restaurant Corp. v. Wolfies Restaurant, Inc. (2 Cir. 1961) 291 F.2d 302; Ambassador East, Inc. v. Orsatti, Inc. (3 Cir. 1958) 257 F.2d 79; Stork Restaurant v. Sahati, supra; Sweet Sixteen Co. v. Sweet "16" Shop, supra. Courts are quick to grant relief in cases of fraud or bad faith, even though the businesses of the litigants are not in competition. 52 Am.Jur., Trademarks, Tradenames, etc., Sec. 101. One of the reasons is well expressed in A.L.I. Restatement of Torts, Vol. III, p. 595:
"But if he adopts his designation with the intent of deriving benefit from the reputation of the trademark or trade name, his intent may be sufficient to justify the inference that there is confusing similarity. Since he was and is intimately concerned with the probable reaction in the market, his judgment manifested prior to the controversy, is highly persuasive. His denial that his conduct was likely to achieve the result intended by him will ordinarily carry little weight."
Plaintiffs argue that the court must find fraud or deceit on the part of the defendant because at the time of the establishment of the defendant's business either it or the representatives of the Independent Grocers Alliance had knowledge of the plaintiffs' business and use of their trade name in Tulsa, if not in the other trade areas as well. A careful consideration of the record and exhibits leaves this court in no doubt that by the preponderance of the evidence there was no fraud nor deceit by the defendant in the continuation of its business nor in its original establishment. There is no evidence that indicates that the defendant knew that the name "Shoppers Fair" was used by the plaintiffs in Tulsa and appeared on some of the products sold, but even if the evidence indicated otherwise it would be fair for the defendant to have inferred from such notice that the plaintiff did not have an exclusive right to such use as against a *735 noncompeting business where there was no likelihood of confusion as to source and in the absence of an intent to benefit from the reputation of good will of the plaintiff. El Chico, Inc. v. El Chico Cafe, (5 Cir. 1954) 214 F.2d 721.
The third factor is based upon the degree of care likely to be exercised by the ordinary prudent purchaser. Plaintiffs contend that due to their retail operations in many states, as well as their extensive advertising program and partial similarity of goods sold, that customer confusion has resulted even though the customer is one possessing ordinary discrimination. The effect of extensive advertising on customer confusion is analyzed in the case of Fairway Foods, Inc. v. Fairway Markets, Inc., supra, 227 F.2d at page 196 as follows:
"It is not a convincing argument that because radio advertising and newspaper advertising are not physically contained within state lines, someone in the territory wherein plaintiff sells groceries might be induced thereby to buy some groceries from defendant or that such person might in so doing mistakenly think he was buying of plaintiff or buying plaintiff's goods."
Plaintiffs have not shown actual customer confusion outside of a few isolated instances, and the case of American Automobile Ins. Co. v. American Auto Club, (9 Cir. 1950) 184 F.2d 407, at page 410, states the applicable rule as follows:
"If no likelihood of deception appears the plaintiffs cannot prevail even though the absence of competition be treated as no objection. As `probable confusion cannot be shown by pointing out that at some place, at some time, some one made a false identification', so the possibility that in rare and isolated instances relatively few persons may carelessly mistake the source does not warrant relief."
Therefore, the court is of the opinion that there has been no confusing similarity by the defendant's use of the trade name "IGA Shoppers Fair" in the Fort Smith trade area.
However, plaintiff contends that it is entitled to injunctive relief because there is the likelihood of future confusing similarity for two reasons: (1) plaintiff has expanded its line of goods to include some food and grocery items as heretofore listed, and (2) plaintiff intends to expand its discount department store operation into Arkansas at either Little Rock or Fort Smith.
In the case of S. C. Johnson & Son, Inc. v. Johnson, (2 Cir. 1940) 116 F.2d 427, at page 429, Judge Learned Hand lays down the ground rules for the expansion of a prior user of a trade name into sales of a different line of goods:
"Obviously the plaintiff cannot stand upon the usual grievance in such cases; i. e. that the defendant is diverting its customers. * * * Therefore it invokes the doctrine that when a good will is established under the owner's name, given or assumed, he may protect it, not only against the competition of those who invade his market, but also against those who use the name to sell goods near enough alike to confuse his customers. We have often so decided, and it is not necessary to do more than refer to our last discussion. Emerson Electric Mfg. Co. v. Emerson Radio & Phonograph Corp., [D. C.] 105 F.2d 908. Since in such a situation the injured party has not lost any sales, the courts have based his right upon two other interests: first, his reputation with his customers; second, his possible wish to expand his business into the disputed market. The first of these is real enough, even when the newcomer has as yet done nothing to tarnish the reputation of the first user. Nobody willingly allows another to masquerade as himself; it is always troublesome, and generally impossible, to follow the business practices of such a competitor closely enough to be sure that they are not damaging, and the harm is frequently done *736 before it can be prevented. Yet even as to this interest we should not forget that, so long as the newcomer has not in fact misconducted himself, the injury is prospective and contingent, and very different from taking away the first user's customers. The second interest is frequently less palpable. It is true that a merchant who has sold one kind of goods, sometimes finds himself driven to add other `lines' in order to hold or develop his existing market; in such cases he has a legitimate present interest in preserving his identity in the ancillary market, which he cannot do, if others make his name equivocal there. But if the new goods have no such relation to the old, and if the first user's interest in maintaining the significance of his name when applied to the new goods is nothing more than the desire to post the new market as a possible preserve which he may later choose to exploit, it is hard to see any basis for its protection. The public may be deceived, but he has no claim to be its vicarious champion; his remedy must be limited to his injury and by hypothesis he has none. There is always the danger that we may be merely granting a monopoly, based upon the notion that by advertising one can obtain some `property' in a name. We are nearly sure to go astray in any phase of the whole subject, as soon as we lose sight of the underlying principle that the wrong involved is diverting trade from the first user by misleading customers who mean to deal with him. Unless therefore he can show that, in order to hold or develop his present business, he must preserve his identity in the disputed market, he cannot rely upon the second of the two interests at stake. We discussed this in Emerson Electric Mfg. Co. v. Emerson Radio & Phonograph Corp., supra (105 F.2d 908) but the decision did not depend upon it. It follows from what we have said that the newcomer will be subject to stricter limitations upon the use of his name when he is competing in the first user's own market, than if, as here, he has been the first to enter a new, though closely related, market."
The rule governing protection of a trade name on the basis of natural expansion is stated as follows in the case of Katz Drug Co. v. Katz, 89 F.Supp. 528, beginning at page 534:
"A number of cases have been cited by plaintiff's counsel in support of the field of natural expansion theory. It is readily seen that these cases do not require the plaintiff to show competition or loss of trade in order to obtain injunctive relief; but it is also apparent that in these cases there was present a showing of one of the following facts: either (1) that the junior appropriator adopted the senior user's mark with a `design inimical to the interests' of the latter, that is, adopted it in bad faith; or (2) that the senior user, at the time of the adoption of the mark by the junior user and in the territory in which the junior user employed the mark, had something variously denominated by different courts as `secondary meaning', `good-will', or `reputation'.
* * * * * *
"* * * In adopting a trade name or trade-mark, how far must the adopter look to see if a similar mark is in use? If a similar mark is in use, and it is wholly unknown in the area in which the so-called adopter wishes to use it, there is nothing to put him on notice. If the adopter in such a case wishes to open a retail drugstore in St. Louis, must he search Kansas City? Chicago? Des Moines? Denver? It seems unnecessary."
A recent statement applies the good faith of the junior user as a standard in the case of Food Fair Stores, Inc. v. Lakeland Grocery Corp., (4 Cir. 1962) *737 301 F.2d 156, beginning at page 162 as follows:
"The existence or non-existence of good faith on the part of the second user of the trade name is a powerful factor in determining whether the name is entitled to protection in an area to which the business it identifies has not actually extended. Indeed, it is pointed out in Nims on Unfair Competition and Trademarks, Section 218b, page 649, that to some extent the emphasis of the inquiry has been shifted in determining whether a trademark or trade name is entitled to extra-territorial protection, so that in some cases much more stress is placed upon the question of good faith and much less on the extent to which the name is known in a given area. See Pike v. Ruby Foo's Den, 98 U. S.App.D.C. 126, 232 F.2d 683; Lincoln Restaurant Corp. v. Wolfies Restaurant, Inc., supra; Safeway Stores, Inc. v. Sklar, E.D.Pa., 75 F. Supp. 98; Adam Hat Stores v. Scherper, E.D.Wis., 45 F.Supp. 804; Ammon & Person v. Narragansett Dairy Co., 1 Cir., 262 F. 880; Maison Prunier v. Prunier's Restaurant & Cafe, Inc., 159 Misc. 551, 288 N. Y.S. 529."
As stated above, this court has found no evidence of bad faith or fraudulent intent on the part of the defendant in the choice of and continued use of its trade name "IGA Shoppers Fair." Thus, under the rule set forth it is not liable to be enjoined from further use of its trade name.
In conclusion, the plaintiffs have sought injunctive relief on the basis that (1) there is confusing similarity by means of defendant's present scope of operation under the trade name of "IGA Shoppers Fair," and (2) if not at present, there is the likelihood of customer confusion due to the plaintiffs' plans for expansion both as to the variety of goods sold and the contemplated entry of the plaintiff, Shoppers Fair of Arkansas, Inc., into either the Little Rock or Fort Smith trade areas. This court is of the opinion that under the rule of law heretofore set out that there is no confusing similarity in the retail operations of the parties at present, and as to the possibility of future expansion, there are no present grounds to support an injunction against the defendant. However, this does not preclude the plaintiffs from injunctive relief at such time as their plans for expansion become a reality and they can show positive damages due to unfair competition arising out of defendant's operations in the Fort Smith trade area as "IGA Shoppers Fair." In the case of Food Fair Stores v. Food Fair, (1 Cir. 1949) 177 F.2d 177, in which there were cross appeals from a final decree enjoining the defendant from using the words "Food Fair" in its business unless such words were prefaced by a descriptive word or words, the court stated, beginning at page 185, as follows:
"Traditionally `The essence of equity jurisdiction has been the power of the Chancellor [i. e. the trial court] to do equity and to mould each decree to the necessities of the particular case.' Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S. Ct. 587, 592, 88 L.Ed. 754. Hence as an appellate tribunal we are loath to interfere with the scope of the injunctive relief afforded. Nor do we feel inclined to do so for the reason that at the moment the parties are not in direct competition and such relatively minor confusion as now exists, it seems to us, can be obviated by the expedients required by the decree as it stands. Perhaps this may not always be so. Should the plaintiff expand its chain into Massachusetts and the parties come into direct competition, then it may be that the relief granted would not give the plaintiff adequate protection. But it will be time enough to consider this question when it arises, for the parties are not irrevocably bound by the decree as it stands. If circumstances change the court below is open to the plaintiff to seek *738 modification of the present decree under the principle enunciated in United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999, in which Mr. Justice Cardozo, speaking for the court, said that even when power to modify a decree of injunction has not been reserved therein, that power nevertheless exists `by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need', and then, after citing cases, continued: `The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative * * * a court does not abdicate its power to revoke or modify its mandate, if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.' See also S. C. Johnson & Son v. Johnson, 2 Cir., 175 F.2d 176, 177."
A similar statement appears in the case of Fairway Foods v. Fairway Markets, supra, 227 F.2d at page 198 as follows:
"There remains for disposition on this appeal, the injunction which enjoins plaintiff from using the word `Fairway' in the territory now occupied by defendant, should plaintiff at some time in the future act upon its asserted intention of extending its business into such territory. Government by injunction is never favored, and the discretion of the chancellor in favor of granting the writ is withheld except to prevent impending injury or wrong, and is not granted upon indefiniteness and remote possibilities. No present impending injury can be found in this case. It may well be that if and when plaintiff acts to carry out its expressed intention to expand into the territory presently occupied by defendant, the facts will be sufficiently different from those of the instant case as to commerce and otherwise, and as to the validity of the claimed trade-mark, as to present additional and different issues."
See, Katz Drug Co. v. Katz, 188 F.2d at page 700; American Automobile Ins. Co. v. American Auto Club, supra, 184 F.2d at page 410; and Save-A-Stop, Inc. v. Sav-A-Stop, Inc., 230 Ark. 319, 322 S.W.2d 454 (1959).
CONCLUSIONS OF LAW
1.
The court has jursidiction of the parties to and the subject matter of this cause of action.
2.
The defendant, Sanders Company, Inc., has a legal right to conduct its retail supermarket operations under the name of "IGA Shoppers Fair."
3.
In view of the law and facts heretofore stated, it is clear that the defendant in commencing operation of a retail grocery supermarket without prior notice under the trade name "IGA Shoppers Fair" in Fort Smith, Arkansas, at a date subsequent to plaintiffs' commencement of operations as a retail discount department store under the trade name "Shoppers Fair" in Tulsa, Oklahoma, was not guilty of unfair competition, and the plaintiffs are not entitled to an injunction against defendant's use of the above trade name.
4.
In view of the law and facts heretofore stated, it is clear that the plaintiffs in planning to expand their operations into Arkansas under the trade name "Shoppers Fair of Arkansas, Inc.," and to increase their variety of merchandise to include food and grocery items are not entitled to an injunction at the present time on the basis of unfair competition *739 by defendant's prior use of the trade name "IGA Shoppers Fair" in the State of Arkansas in general and in the Fort Smith trade area in particular.
Therefore, a judgment dismissing plaintiffs' complaint is being entered today. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330878/ | 262 Ga. 26 (1992)
413 S.E.2d 732
ANDERSON
v.
THE STATE.
S91G1155.
Supreme Court of Georgia.
Decided February 28, 1992.
Harrison & Harrison, Samuel H. Harrison, for appellant.
Gerald N. Blaney, Jr., Solicitor, for appellee.
WELTNER, Presiding Justice.
We granted certiorari in this case, Anderson v. State, 199 Ga. App. 595 (405 SE2d 504) (1991), to consider two issues: the charge to the jury and the submission to the jury of written jury instructions.
1. The charge to the jury included all of the provisions of OCGA § 40-6-391 (a) (as did Count 1 of the accusation), although some of them were not applicable.[1] Anderson was convicted of Counts 1 and 2, *27 and sentenced under Count 1.
(a) Our appellate courts often have held:
"It is not usually cause for new trial that an entire Code section is given ... even though a part of the charge may be inapplicable under the facts in evidence." [Cits.] [Jolley v. State, 254 Ga. 624, 628 (331 SE2d 516) (1985).][2]
(b) However, the Court of Appeals also has held:
Where the inapplicable instruction authorizes the jury to reach a finding of guilty by a theory not supported by the evidence of record, we cannot say as a matter of law that the charge was neither confusing nor misleading. [Stanley v. State, 153 Ga. App. 42, 47 (264 SE2d 533) (1980).]
(c) The record in this case indicates that the jury was confused about the charge.[3] No remedial instruction was given, nor did the accusation clarify the charge.
2. Because "we cannot say as a matter of law that the charge was neither confusing nor misleading," we conclude that the trial court's charge in this case requires reversal.
3. The Court of Appeals, quoting Davis v. Ins. Co. of N. A., 163 Ga. App. 280, 282 (1) (294 SE2d 353) (1982), suggests that the submission to the jury of written jury instructions is "an irregular practice and not to be condoned."
(a) Practices that have served adequately in former times may *28 not remain forever the best. In an age of expanding technology, complete and accurate written jury charges can be created within a few minutes.
In Llewellyn v. State, 241 Ga. 192, 195 (243 SE2d 853) (1978), we cited with approval a United States Court of Appeals decision:
"But we think it is frequently desirable that instructions which have been reduced to writing be not only read to the jury but also be handed over to the jury. This course is required in some states, and is widely practiced. United States courts are free to follow it. We see no good reason why the members of the jury should always be required to debate and rely upon their several recollections of what a judge said when proof of what he said is readily available." [Emphasis supplied.] [Citing Copeland v. United States, 152 F2d 769, 770 (D.C. Cir.) (cert. den. 328 U. S. 841 (66 SC 1010, 90 LE 1815) (1946)).]
(b) We do not wish that any beneficial trial process should be prohibited by an adherence to the mechanistic regimes of the past.
4. We agree with the Court of Appeals that the submission of written charges to the jury in this case is not cause for reversal.
Judgment affirmed in part and reversed in part. Clarke, C. J., Benham and Fletcher, JJ., concur; Bell, J., concurs in the judgment only as to Divisions 1 and 2; Hunt, J., dissents as to Divisions 1 and 2 and the judgment. HUNT, Justice, concurring in part, dissenting in part.
I agree entirely with Divisions 3 and 4, but respectfully disagree that the court's instructions to the jury were so erroneous as to require a reversal.
NOTES
[1] (a) Count 1 of the accusation stated that Anderson operated a motor vehicle on a public road "while under the influence of intoxicating liquors, drugs to a degree rendering him incapable of safely driving a vehicle."
Count 2 stated that Anderson operated a motor vehicle on a public road "while there was a .12 percent or more by weight of alcohol in his blood."
Count 3 accused him of "following another motor vehicle more closely than is safe or lawful."
(b) The charge to the jury included the following:
This Defendant is charged with the offenses of driving under the influence and following too close. I charge you that a person shall not drive or be in actual physical control of any moving vehicle while: (1) Under the influence of alcohol; (2) Under the influence of any drug to a degree which renders him incapable of driving safely; (3) Under the combined influence of alcohol and any drug to a degree which renders him incapable of driving safely; or (4) While there is a .12 percent or more by weight of alcohol in his blood.
(c) There was no evidence presented that Anderson was under the influence of any drugs; the blood test indicated a level of.22 percent of alcohol in his blood.
[2] See, e.g., Brooks v. State, 250 Ga. 739, 741 (300 SE2d 810) (1983) (charge viewed in its entirety and no prejudicial error); Lumpkin v. State, 249 Ga. 834 (2) (295 SE2d 86) (1982) (remedial instruction given); Keller v. State, 245 Ga. 522 (1) (265 SE2d 813) (1980) (erroneous charge was deemed beneficial to the defendant); McBurse v. State, 182 Ga. App. 759, 760 (357 SE2d 144) (1987) (erroneous instruction was given only on a recharge); Brown v. State, 159 Ga. App. 901, 902-903 (285 SE2d 552) (1981) (charge erroneous, but accusation correct and judge read accusation verbatim).
[3] During deliberations, the jury sent to the judge a series of questions, including these two:
(a) "Why are there two Counts of DUI?" The judge answered, "I can't help you. You should just render separate verdicts on each Count."
(b) "Can the Judge explain the first Count to us again?" This the judge answered by addressing the jury as follows:
Y'all had a note wanting to know if I could explain Count I of the accusation to you, and I'm sorry, I can't help you. The answer is no. You will have to go with the Charge and the evidence that you have. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330905/ | 159 Ga. App. 53 (1981)
283 S.E.2d 30
CLUB MEDITERRANEE, S. A. et al.
v.
STEDRY.
61659.
Court of Appeals of Georgia.
Decided June 24, 1981.
James J. Brissette, Lowell S. Fine, for appellants.
Steven D. Harris, Robert B. Harris, for appellee.
DEEN, Presiding Judge.
1. We do not agree with the appellant that the damages were based on the plaintiff's "subjective evaluation of defendants' brochure," or on mere puffing. The line between advertising which merely creates a promise, prophecy or expression of opinion, and advertising, although structured to future results, which conveys a false impression so intentionally overreaching as to rise to the level of an implied contract is often a fine line but it exists nevertheless. "If by number of statements you intentionally give a false impression and induce a person to act upon it, it is not the less false although if one takes each statement by itself there may be a difficulty in showing that any specific statement is [deliberately] untrue." Downey v. *54 Finucane, 205 N. Y. 251, 264, 98 NE 391, 395. An excellent example may be found in Stad v. Grace Downs Model and Air Career School, 319 N. Y. S. 2d 918, where strong and overreaching blandishments of the result to be obtained from the courses offered ("If you were accepted you may rest easy about your future in the fascinating airlines field"; "Free Placement to Graduates," etc.) were held to create an implied contract to secure employment for the school's graduates and acted to create an atmosphere of guaranty of placement which became a part of the enrollment contract under the entire climate of the situation, instead of the "laminated 3 1/2 by 2 1/2 inch card diploma" which proved to be the plaintiff's only reward for the investment of her time and money.
The trial judge in a lengthy and accurate analysis went over the evidence as it contrasted with the specific promises of the brochures on which the plaintiff acted. Guaranteed air reservations were nonexistent, and the family underwent several days of standby wait both coming and going between Los Angeles and Papeete. On arrival there was also a lengthy wait for a cottage. Promised sports, tennis, scuba, boat transportation to reefs, etc. were unavailable except at undesirable hours and after long waits. The same was true of meals. All facilities were overcrowded. Rooms were bug infested, promised services were not provided, and so on. After numerous complaints the family was offered a transfer to Club Med's other village at Bora Bora. They tried this, found it worse than the first one, and eventually moved to a hotel where they completed their vacation. The judge found the factual evidence a total misrepresentation of the vacation offered: "The good life . . . A carefree ambiance . . . a casual yet elegant reflection of the local environment . . . facilities with the emphasis on fun . . . uncrowded white beaches. . . active sports . . . The Club gives them all to you . . . first class equipment rent-free and instruction at all levels for sports . . . Tranquility is yours . . . a fun-filled vacation to remember . . . Lots of space to be alone . . . Fall under the spell of our gentle natural lifestyle as you begin discovering the true meaning of the Tahitian saying . . . only happiness is important." Here, as in Stad, supra, the court concluded that this fairly costly vacation raised a reasonable expectation that a certain ambiance and amenities were guaranteed which in fact degenerated into a hot, buggy, overcrowded and unpleasant experience with few services provided.
2. The award of punitive damages is supported by some evidence relative to each of the five elements of fraud: that the representations were made, that they were false, that the defendant necessarily knew of their falsity at the time the offer was made to the plaintiff and was intended to deceive him, and that the plaintiff did in *55 fact suffer damages as a result of his reliance on the offers made. City Dodge, Inc. v. Gardner, 232 Ga. 766 (208 SE2d 794) (1974). It is true that this case differs from the usual fraudulent advertising situation in that the defendant did in fact have an apparent ability to offer each of the factually listed elements of the vacation the flower filled paths, turquoise reefs, uncrowded white beaches, clean comfortable living quarters, ambiance of relaxation, array of sports, and so on. But the vacation which is what the customer thinks he is buying, was destroyed by lack of services, overcrowding of facilities, and failure to make the individual arrangements guaranteed. Under the evidence offered punitive damages were authorized. It cannot be argued that the plaintiff failed to exercise diligence to discover the true situation ahead of time (Lawton v. Byck, 217 Ga. 676 (4) (124 SE2d 369) (1962)) since he could hardly explore Papeete and Bora Bora personally in advance, nor that he had no right to rely on the representations made, since he had in fact had a prior vacation at the defendant's facilities in Mexico which he had found satisfactory.
3. There was no error in failing to reduce the plaintiff's damages by sums which he had contracted to pay. Certainly the defendant was not entitled to keep sums for which it had put out nothing after the defendant and his family departed the premises nor sums as to which there had been a failure of consideration. From that point until they were at last able to arrange for and obtain transportation back to Los Angeles their damages were the amount it was necessary for them to spend for room, board and other essentials in the meantime. These were the costs the plaintiff necessarily incurred after declaring a breach of contract and thus repudiating the remainder of performance on the part of the defendant. "Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered." Code § 105-2009. The case might be analogized to Brown v. Ga. C. & N. R. Co., 119 Ga. 88 (3, 4) (46 SE 71) (1903), where the defendant breached its contract to transport its passengers, who in consequence suffered damage from being forced to spend the night in a station-house lacking minimum facilities. Here the plaintiff not only proved failure of consideration under the contract but was forced to spend additional funds for other facilities. The amount of damages is supported by the evidence.
Judgment affirmed. Quillian, C. J., McMurray, P. J., Banke, Birdsong and Pope, JJ., concur. Shulman, P. J., concurs specially. Carley and Sognier, JJ., dissent.
SHULMAN, Presiding Judge, concurring specially.
In this case the claims and representations for a vacation paradise far exceeded ordinary advertising "puffing." If the *56 appellants did not know that the adverse conditions existed and that their brochure was totally inaccurate, it was their business to determine its accuracy before its exploitation to the public. To me, this is fraud; the change in the travel arrangements and other material misrepresentations show a total disregard for the rightful expectations of the customer. The final reality of what he received in exchange for his money was just the opposite of what appellee was led by appellants to expect. I consider this case closely akin to McClure v. Thomas Cook, Inc., 158 Ga. App. 467 (280 SE2d 876) (1981), and I therefore agree with the majority and would affirm.
CARLEY, Judge, dissenting.
A review of the record in this case leaves one convinced that, indeed, plaintiff-appellee had a lousy vacation. However, the question to which that conclusion is a response is not the issue which we must decide from an appellate standpoint; nor was it the issue before the trial judge. I can even go so far as to agree with the majority that the circumstances show a breach of contract so that compensatory damages may be allowable. But I simply cannot find that the conduct of the defendant here rises to the level of fraud so as to authorize the award of punitive damages. Contrary to the majority, I do feel that plaintiff contends he was defrauded because what he got was not what he "saw" when he focused his eyes, which were filled with subjective anticipation, upon the rather grandiose enticements of defendant's travel brochure. As the majority concedes, all of the facilities offered were available, albeit not at the time nor in the exact manner which plaintiff felt they should be. Evidently plaintiff desired and the trial court thought he should obtain access to all of the promised facilities upon demand. However, I do not find that the material containing the alleged representations by the defendant made such a "guarantee." Apparently, the plaintiff feels that the defendant promised him: "You will have a good vacation." I believe that a promisor's compliance with such a subjective guarantee, varying in interpretation with every recipient thereof, is too speculative and nebulous to be capable of judicial measurement by a court charged with determining the existence of fraud. "Representations under the general head of `dealer's talk' are regarded as mere commendations, `puffing,' or expressions of opinion, and do not, though untrue, constitute false representations which will avoid a contract. [Cit.] The representations to support a claim must relate to an existing fact and not a future event, unless it be an event which the party making the representation knows will never occur. Mere broken promises, unfulfilled projections, and erroneous conjectures do not meet this test." American Food Services, *57 Inc. v. Goldsmith, 121 Ga. App. 686, 688 (175 SE2d 57) (1970).
McClure v. Thomas Cook, Inc., 158 Ga. App. 467 (280 SE2d 876) (1981) does not require a different result from that which I urge in this case. In McClure, the defendant made to the plaintiff a specific unambiguous representation (that there would be young people on plaintiff's tour) which was false, and plaintiff made out a prima facie case as to all of the other requirements for showing fraud. If the ruling of the majority here is to be the rule of law applicable to similar situations, no travel agency or other enterprise sponsoring or having involvement with any type of recreational facility could promote or produce a "vacation" without separately evaluating the subjective construction placed upon each of their representations by each and every prospective customer. I do not believe that our law providing for redress for fraudulent conduct is that broad. I respectfully dissent.
I am authorized to state that Judge Sognier joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330913/ | 188 S.E.2d 281 (1972)
281 N.C. 300
Annie Neal STEVENSON, Sister, et al.,
v.
CITY OF DURHAM, Employer, Self-Insurer.
No. 3.
Supreme Court of North Carolina.
May 10, 1972.
*282 Mason H. Anderson, Shallotte, for plaintiff appellants.
C. V. Jones, S. F. Gantt by S. F. Gantt, Durham, for defendant appellee.
BRANCH, Justice.
The question presented by this appeal is whether "brothers" and "sisters" who are eighteen years of age, or older, and married are "next of kin" as defined in G.S. § 97-40.
At the time of O'Neal Daniels' injury and death, G.S. § 97-40, in part, provided:
Subject to the provisions of G.S. 97-38, if the deceased employee leaves neither whole nor partial dependents, then the compensation which would be payable under G.S. 97-38 to whole dependents shall be commuted to its present value and paid in a lump sum to the next of kin as herein defined. For purposes of this section and G.S. 97-38, "next of kin" shall include only child, father, mother, brother or sister of the deceased employee . . . For all such next of kin who are neither wholly nor partially dependent upon the deceased employee and who take under this section, the order of priority among them shall be governed by the general law applicable to the distribution of the personal estate of persons dying intestate. . . .
If the deceased employee leaves neither whole dependents, partial dependents, nor next of kin as hereinabove defined, then no compensation shall be due or payable on account of the death of the deceased employee, except that the employer shall pay or cause to be paid the burial expenses of the deceased employee not exceeding five hundred dollars ($500.00) to the person or persons entitled thereto. (Emphasis ours)
G.S. § 97-38 classifies those persons eligible to receive, and determines the amount of, death benefits payable under the Workmen's Compensation Act to persons wholly or partially dependent upon the earnings of a deceased employee. If the deceased employee leaves neither whole nor partial dependents, as here, then G.S. § 97-40 provides for the commutation and payment of compensation to the "next of kin" as therein defined.
The Court of Appeals, relying on the case of Jones v. Sutton, 8 N.C.App. 302, 174 S.E.2d 128, affirmed the opinion and award of the Industrial Commission. The rationale of the majority decision of the Court of Appeals is that G.S. § 97-40 and G.S. § 97-2(12) are in pari materia and therefore should be construed with reference to each other. G.S. § 97-2(12) provides:
Child, Grandchild, Brother, Sister. The term "child" shall include a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent upon him. "Grandchild" means a child as above defined of a child as above defined. "Brother" and "sister" include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers nor married sisters unless wholly dependent on the employee. "Child," "grandchild," "brother," and "sister" include only persons who at the time of the death of the deceased employee are under eighteen years of age.
After the Court of Appeals filed its decision in this case, this Court, in the case of *283 Smith v. Allied Exterminators, 279 N.C. 583, 184 S.E.2d 296, in construing G.S. § 97-38 and G.S. § 97-40, stated:
". . . Thus, G.S. § 97-40 determines the person or persons entitled to receive the death benefits provided in the Act, but the amount payable to the person or persons entitled thereto is determined by G.S. § 97-38, commuted to its present, lump sum value. When, as here, the deceased employee left no dependent, whole or partial, the amount payable is not reduced from the amount which would have been payable had the deceased employee left a person wholly dependent upon him unless there is no person surviving who falls within the term `next of kin,' as defined in G.S. § 97-40...." (Emphasis ours)
G.S. § 97-40 as rewritten by the 1965 General Assembly added "next of kin" as a category of persons entitled to death benefits under the Workmen's Compensation Act. The rewritten statute defined the term "next of kin" and specified the order of priority among "next of kin" who are neither wholly nor partially dependent upon the deceased employee and who take under the section.
The primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute. In seeking to discover this intent, the court should consider the language of the statute, the spirit of the act, and what the act seeks to accomplish. Galligan v. Chapel Hill, 276 N.C. 172, 171 S.E.2d 427; State v. Spencer, 276 N.C. 535, 173 S.E.2d 765; Freeland v. Orange County, 273 N.C. 452, 160 S.E.2d 282. Equally well recognized is the rule that the Workmen's Compensation Act should be liberally construed so that the benefits under the Act will not be denied by narrow, technical or strict interpretation. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874; Cates v. Hunt Construction Co., 267 N.C. 560, 148 S.E.2d 604; Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342. "In seeking to discover and give effect to the legislative intent, an act must be considered as a whole, and none of its provisions shall be deemed useless or redundant if they can reasonably be considered as adding something to the act which is in harmony with its purpose. In re Watson, 273 N.C. 629, 161 S.E.2d 1; Jones v. Board of Education, 185 N.C. 303, 117 S.E. 37." State v. Harvey, N.C., 187 S.E.2d 706.
Imposition of the restrictions contained in G.S. § 97-2(12) upon the definition of "next of kin" as defined in G.S. § 9740 would require that we ignore the unambiguous language contained in G.S. § 9740 that "next of kin" be as "herein defined." Further, a child, brother or sister who is partially or wholly dependent and under eighteen years of age would take death benefits under the provisions of G.S. § 97-38. Thus, the imposition of the restrictions of dependency and age contained in G.S. § 97-2(12) would result in a narrow and technical interpretation of the Workmen's Compensation Act.
We conclude that the 1965 re-write of G.S. § 97-40 shows a clear intent by the General Assembly to remove the requirements of dependency, age and marital status from the definition of "next of kin" who are entitled to death benefits under Section 40 of the Workmen's Compensation Act. This conclusion draws strength from the fact that the 1971 General Assembly (after the decision in Jones v. Sutton, supra) further amended G.S. § 97-40 so as to include adult children or adult brothers and adult sisters in the definition of "next of kin" contained in that section. By this amendment the General Assembly again evidenced its intent that the definition of "next of kin" as contained in G.S. § 97-40 should not be narrowly and strictly limited by the provisions of G.S. § 97-2(12). Cates v. Hunt Construction Co., supra.
We note with approval the reasoning and conclusions in the dissenting opinion filed in the Court of Appeals by Mallard, Chief Judge.
*284 The doctrine of pari materia does not apply and the provisions of G.S. § 97-40 should not be construed with the provisions of G.S. § 97-2(12).
We hold that brothers and sisters who are eighteen years of age or older, and who are married, are "next of kin" as defined in G.S. § 97-40.
The decision of the Court of Appeals is
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330924/ | 202 Ga. App. 43 (1991)
413 S.E.2d 238
EXXON CORPORATION
v.
DEPARTMENT OF TRANSPORTATION.
A91A1126.
Court of Appeals of Georgia.
Decided November 22, 1991.
Alston & Bird, Walter G. Elliott II, Earle B. May, Jr., for appellant.
Evans & Flournoy, Charles A. Evans, for appellee.
Judge Arnold Shulman.
The Department of Transportation (DOT) condemned a 360-square-foot triangle of land located at the intersection of I-75 and Delk Road in Cobb County, on which the Exxon Corporation maintained a large sign advertising one of its service stations. The remainder of the property on which this triangle of land was located was owned by Motel 6 and was being used for motel purposes, while the service station advertised by the sign was located on the other side of the motel property, on an adjacent parcel of land owned by Exxon. Motel 6 had ceded to Exxon the perpetual right to erect and maintain a high-rise interstate highway sign at the location in question, along with the perpetual right to go upon and across the remainder of its property for the purpose of accessing the sign. The trial court granted a motion in limine filed by the DOT seeking to prevent Exxon from introducing evidence that its service station property had sustained consequential damages as a result of the taking of the sign, and the case is before us pursuant to our grant of Exxon's application for interlocutory review of that ruling.
1. "[A]n asserted insufficiency in the condemnee's evidence... is not appropriately resolved on a motion in limine. A motion in limine determines the admissibility of evidence. A motion for summary judgment or for a directed verdict would be the appropriate means by which to invoke a ruling as to the sufficiency of the condemnee's evidence." Buck's Svc. Sta. v. Dept. of Transp., 191 Ga. App. 341 (381 SE2d 516) (1989), aff'd 259 Ga. 825 (387 SE2d 877) (1990). It follows that a motion in limine was not the proper procedural vehicle by which to adjudicate Exxon's entitlement to seek consequential damages in the present action for the injury to its service station property allegedly caused by the taking of its sign. The order *44 appealed from is accordingly reversed; however, inasmuch as Exxon's entitlement to assert its consequential damage claim in the present action must ultimately be adjudicated, and inasmuch as the trial court has, by its grant of the DOT's motion in limine, effectively ruled against Exxon on the issue, we will nevertheless proceed, in the interest of judicial economy and efficiency, to address the merits of that ruling.
2. "Consequential damages to a contiguous tract of land having a different ownership from that in which the taking occurs may be real and may in fact exist, but a separate owner's claim for consequential damages to his land contiguous to the tract where the taking occurs cannot be asserted in a condemnation action. Consequential damages to `the remainder of the tract in which the taking occurs' are the only consequential damages that may be recovered in the condemnation action." Georgia Power Co. v. Bray, 232 Ga. 558, 560 (207 SE2d 442) (1974). See also Gaines v. City of Calhoun, 42 Ga. App. 89, 93 (155 SE 214) (1930) (holding that "where adjoining or contiguous parcels of land belonging to the same owner are put to separate and distinct uses, and do not together constitute one entire tract, damage to one of the parcels, as a result of the performance of public work in the neighborhood, is determinable without reference to the effect of the work upon the adjoining land"). (Emphasis supplied.)
Exxon argues that there was a "substantial unity of ownership" between its service station property and the contiguous Motel 6 property on which the taking occurred by virtue of its perpetual easement "to go upon and across any and all of the remainder of [the Motel 6 property] for the purpose of accessing the sign along the most direct and practical route from [its service station property]." Citing this Court's holding in Department of Transp. v. Arnold, 154 Ga. App. 502, 503 (268 SE2d 775) (1980), for the proposition that "substantial, not perfect, unity of ownership" is all that is needed to authorize a recovery of consequential damages for injury to a contiguous property caused by a taking, it contends that it is therefore authorized to seek consequential damages in the present action.
We find this contention to be without merit for three reasons. First, we do not believe Exxon's generalized right to go across the Motel 6 property to access its sign can reasonably be considered an ownership interest in the entire property. Second, even it if could be, this would not create, in our view, either a substantial unity of ownership or a substantial unity of use between the motel property and the service station property. And finally, the decision in Dept. of Transp. v. Arnold, supra, had nothing to do with consequential damages. The taking in that case had occurred on a parcel of land owned by three persons, each of whom had previously treated the parcel as part of a larger tract formed by it and an adjoining parcel owned by only two *45 of them, and this court's holding was simply that the jury was authorized to consider the estimated per-acre value of the combined tract in determining the value of the land taken. More on point with the present case is Georgia Power Co. v. Bray, supra, which involved the condemnation of a tract of land jointly owned by two condemnees, one of whom was seeking to recover consequential damages for injury to a contiguous five-acre tract which he owned separately. The Supreme Court ruled that he was not entitled to make such a claim in the condemnation proceeding, holding that "[i]f the 5-acre tract ... suffered damages by virtue of the taking which occurred on the joint-ownership tract, then such damages must be asserted in a separate action against the condemnor." Id., 232 Ga. at 561. Accord Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980); Southwire Co. v. Dept. of Transp., 147 Ga. App. 606 (249 SE2d 650) (1978).
Based on these authorities, and on our conclusion that the Motel 6 property was not, in any event, a joint-ownership property, we hold that the trial court was correct in its conclusion that Exxon was not entitled to claim consequential damages in the present case for the alleged injury to its service station property caused by the taking of its sign.
Judgment affirmed in part and reversed in part. Carley, P. J., and Beasley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330930/ | 413 S.E.2d 3 (1992)
105 N.C. App. 302
Phillip C. WIGGINS, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, Respondent.
No. 918SC52.
Court of Appeals of North Carolina.
February 4, 1992.
*5 Paul L. Jones, Kinston, for petitioner appellee.
Attorney General Lacy H. Thornburg by Special Deputy Atty. Gen. David M. Parker, Raleigh, for respondent-appellant.
WELLS, Judge.
As his first assignment of error, respondent contends the trial court erred in concluding the findings of fact did not support the Commission's conclusion that petitioner was dismissed for just cause. We find no merit to this assignment.
A reviewing court may modify or reverse the agency's decision if the substantial rights of the petitioner may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:
(4) Affected by other error of law;
(5) Unsupported by substantial evidence... in view of the entire record as submitted; or
(6) Arbitrary or capricious.
N.C. Gen.Stat. § 150B-51(b) (1991). In the petition for judicial review, petitioner alleged, among other things, that respondent had "failed to provide sufficient evidence to overcome its burden of proof to support petitioner's dismissal." Petitioner further contended the Commission erred in concluding respondent had just cause to terminate his employment. If it is alleged on appeal that the agency's findings, conclusions, or decisions are unsupported by substantial evidence or that they are arbitrary or capricious, then the proper standard of review is the whole record test. Brooks, Com'r of Labor v. Rebarco, Inc., 91 N.C.App. 459, 372 S.E.2d 342 (1988). Our review of a final agency decision is limited to the question of whether the trial court failed to properly apply the review standard set forth in N.C. Gen.Stat. § 150B-51 (1991). In re Kozy, 91 N.C.App. 342, 371 S.E.2d 778 (1988), disc, review denied, 323 N.C. 704, 377 S.E.2d 225 (1989). Thus, the question on appeal is whether the trial court properly applied the whole record test in this case.
The Commission adopted the findings of fact contained in the recommended decision of the ALJ. If, at the superior court level, the party appealing to this Court did not object to the findings of fact adopted by the Commission, those findings are binding on the superior court and binding for purposes of our review. Walker v. N.C. Dept. of Human Resources, 100 N.C.App. 498, 397 S.E.2d 350 (1990), cert. denied, 328 N.C. 98, 402 S.E.2d 430 (1991). The respondent did not note any objection or exception to those findings at the superior court level. Therefore, the findings of fact, as found by the ALJ and adopted by the Commission, were binding on the trial court and constitute the whole record. Id. Thus, the trial court had to determine whether those findings reflected substantial evidence to support the Commission's conclusion that respondent had just cause to terminate petitioner's employment.
A permanent employee, subject to the State Personnel Act, can only be discharged for just cause. N.C. Gen.Stat. § 126-35(a) (1991). The statute does not define "just cause" but the words are to be given their ordinary meaning. Reed v. Byrd, 41 N.C.App. 625, 255 S.E.2d 606 (1979). Petitioner was dismissed for "personal conduct including insubordination, conduct unbecoming to a state employee, failure to maintain a satisfactory and harmonious relationship with employees, and serious disruption of the normal operations of [his] work unit, affecting both the residents and employees of the unit." We find the facts adopted by the Commission do not reflect substantial evidence to support the Commission's conclusion that "petitioner's behavior constituted personal conduct and in fact was just cause for his dismissal."
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and is more than a scintilla or a permissible inference. Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977). (Citations omitted). The findings indicate that petitioner was not insubordinate. He *6 did not refuse to bathe his patients and in fact did bathe his patients on the day in question. Furthermore, there was no indication the incident caused a serious disruption of the normal operations of his work unit which affected both the residents and employees of the unit. The findings reflect petitioner was not abusive. He did nothing to harm the residents. His questioning the change in procedure did not rise to the level of insubordination. Further, every other staff member also questioned the change. Although petitioner's anger did not fit the circumstance and he briefly argued with the charge nurse, he subsequently apologized for upsetting her. The argument between petitioner and the charge nurse lasted about 5 minutes and the entire incident only lasted for approximately one hour. Based on the findings in the record before us, we conclude that the trial court properly concluded the findings did not adequately support the Commission's conclusion that respondent had just cause to dismiss petitioner.
We have carefully reviewed respondent's other two assignments of error and find them to be without merit.
Affirmed.
PARKER and WYNN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330936/ | 202 Ga. App. 95 (1991)
413 S.E.2d 215
PULLIAM
v.
NICHOLS.
A91A1150.
Court of Appeals of Georgia.
Decided October 29, 1991.
Reconsideration Denied November 27, 1991.
John P. Howell, for appellant.
Samuel D. Ozburn, for appellee.
COOPER, Judge.
This is an appeal from the trial court's orders denying opening of default and entering default judgment against appellant.
The parties have stipulated to the following facts: Appellee filed suit against appellant on June 15, 1990, for sums due under a construction contract. The complaint and summons were personally served on appellant at his business address on June 27, 1990. Appellant alleges that he gave instructions to his office manager to promptly transmit the service copy of the complaint and summons to *96 his attorney for response. Prior to the filing of the suit by appellee, counsel for both parties had been involved in negotiations to resolve the dispute. No courtesy copy of the complaint or notice of the suit was given to appellant's counsel until after the action had gone into default. Although appellant's office manager acknowledges that she was allegedly instructed by appellant to deliver the complaint to appellant's counsel, no copy of the complaint was received by appellant's counsel. Appellant did not attempt to contact his counsel about the action from June 27, 1990, until after September 10, 1990. Appellant asserts that he made no inquiry because he relied upon the transmission of the complaint to his attorney by his office manager. Actual notice of the suit was received by appellant's counsel by verbal notice from appellee's counsel on September 10, 1990. On that same day, appellant's counsel informed appellant, through his office manager, of the default and requested instructions regarding the filing of a motion to open default. One week later, appellant told his attorney that he would have instructions for him by September 22, 1990. On October 5, 1990, a motion to open default was filed on behalf of appellant. That motion was denied, and default judgment was entered on December 5, 1990. The trial court found that appellant's failure to timely forward the complaint and summons to his attorney due to a mix-up in appellant's office does not constitute excusable neglect, providential cause or a proper case for the opening of default under OCGA § 9-11-55 (b).
Appellant raises three related enumerations of error, contending that the trial court erred in denying appellant's motion to open default judgment and in entering default judgment against appellant. "Pursuant to OCGA § 9-11-55 (b), a prejudgment default may `be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. (Cit.)' [Cit.]" Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 834 (4) (360 SE2d 280) (1987). "Opening a default is a matter resting within the sound discretion of the trial court which will not be disturbed absent an abuse of discretion. [Cit.]" Id. The trial judge did not abuse his discretion in the instant case. Based on the facts as stipulated by the parties, we cannot conclude that either providential cause or excusable neglect was the reason behind the default of appellant. For two-and-one-half months, appellant neither followed up with his office manager nor with his attorney to determine the status of the case. "`The press of business ... is no ground to open a default.' [Cit.]" U. S. Xpress v. W. Timothy Askew & Co., 194 Ga. App. 730 (391 SE2d 707) (1990). Further, in the answer submitted by appellant, *97 which was not verified, appellant provided no facts or explanation supporting his defenses, but merely asserted that appellee failed to state a claim and that appellee was barred from recovery by the doctrine of equitable estoppel. Appellant submitted no other sworn statement setting forth his meritorious defense. Thus, in any event, the trial court was without discretion to grant appellant's motion to open default. See C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345 (1) (398 SE2d 297) (1990).
Appellee filed a motion for damages for a frivolous appeal pursuant to OCGA § 5-6-6. "Our review of the record and the arguments of counsel has persuaded us that although none of appellant's enumerations of error was meritorious, neither were they so specious as to warrant the conclusion that this appeal was taken for the purpose of delay only. Appellee's motion is, therefore, denied." Ale-8-One of America v. Graphicolor Svcs., 166 Ga. App. 506, 509 (10) (305 SE2d 14) (1983).
Judgment affirmed. Birdsong, P. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330831/ | 413 S.E.2d 96 (1991)
Betty L. LEE, Petitioner Below, Appellee,
v.
WEST VIRGINIA TEACHERS RETIREMENT BOARD; William M. Ansel, as Executive Secretary Thereof; Gaston Caperton, Governor of West Virginia, as Ex Official Chairman of Said Board; Henry R. Marockie, Charles Polan, Thomas E. Loehr, Hanley Clark, William Marockie, Ruth M. Hurt, Joann Beer, Billie Davis, and C.C. Albaugh, as Members Thereof, Respondents Below, Appellants.
Clarence E. BURDETTE, Petitioner Below, Appellee,
v.
WEST VIRGINIA TEACHERS RETIREMENT BOARD, et al., Respondents Below, Appellants.
No. 19939.
Supreme Court of Appeals of West Virginia.
Submitted September 25, 1991.
Decided December 11, 1991.
*97 John O. Kizer, Charleston, for petitioners below, appellees.
James A. Swart, Sr. Asst. Atty. Gen., Charleston, for respondents below, appellants.
PER CURIAM:
This is an appeal by the West Virginia Teachers Retirement Board from orders of the Circuit Court of Kanawha County entered on July 24, 1990, which required the appellants to allow the appellees, Betty J. Lee and Clarence E. Burdette, retroactive participation in an Early Retirement Incentive Program. The appellant contends that the appellee did not comply with the requirements of participation in the program and should not be permitted to benefit therefrom. We agree and reverse the decision of the Circuit Court of Kanawha County.
I.
On March 12, 1988, the West Virginia Legislature passed House Bill 4672, W.Va. Code § 18-7A-35b, which instituted an Early Retirement Incentive Program for eligible members of the Public Employees Retirement System and the Teachers Retirement System. This initial March 12, 1988, legislation provided that a member wishing to participate in the program must retire by June 30, 1989.
Subsequently, on June 27, 1988, the Legislature passed Senate Bill 10, which amended W.Va.Code § 18-7A-35b and clarified the Legislative intent in promulgating the Early Retirement Incentive Program. Senate Bill 10 was made retroactive to March 12, 1988. Through Senate Bill 10, the retirement deadline was changed from June 30, 1989, to December 31, 1988, with certain exceptions. These exceptions applied to two classes of individuals and provided that all members seeking participation in the Early Retirement Incentive Program must retire on or before December 31, 1988, except "[1] [e]ligible, active, contributing members ... employed under contract and rendering services during the school year ... [1988-89] ... or [2] eligible, active contributing members employed, not under contract ... who are unable to retire by ... [December 31, 1988] because an element of eligibility for retirement, such as age or other element, will not be met until a date after ... [December 31, 1988] and before ... [July 1, 1989]...." W.Va. *98 Code § 18-7A-35b(b) (emphasis supplied). If an individual were encompassed within either of the statute's exceptions, that individual could postpone retirement until either immediately after the close of the contract period and the school year, in the case of those employed under contract, or until the date of fulfillment of the element of eligibility, retiring before June 30, 1989, in the case of those awaiting the fulfillment of such an element.
In the interim period between the March 12, 1988, legislation and the June 27, 1988, legislation, the appellees, by their individual letters dated June 17, 1988, indicated their intent to retire from the West Virginia Department of Education, a state agency. Both appellees indicated in their letters that they would retire by June 30, 1989.[1]
On October 31, 1988, appellee Lee submitted her application for retirement allowance and indicated a last day of service of December 31, 1988. Likewise, on December 9, 1988, appellee Burdette submitted his application for retirement allowance and indicated a last day of service of December 31, 1988. Mr. Burdette's application was returned to him prior to December 31, 1988, for the selection of an option for benefits. When that application was returned to the appellant in June 1989, Mr. Burdette had changed the intended retirement date from December 31, 1988, to June 30, 1989. Similarly, when Mrs. Lee's application was returned to her for the selection of an option, she returned it with the intended retirement date changed from December 31, 1988, to June 30, 1989.
When the appellees' applications were received in June 1989, both appellees were advised by the appellants' executive secretary, Willard M. Ansel, that they were ineligible for the Early Retirement Incentive Program based upon their failure to actually terminate their employment by December 31, 1988, as required by Senate Bill 10.
The appellees appealed that decision to the appellants' Board of Trustees on two separate occasions, and the Board of Trustees, on both occasions, upheld the denial of early retirement incentive benefits to the appellees. The appellees then appealed the decision of the Board of Trustees to the circuit court. The circuit court entered orders dated July 24, 1990, in favor of the appellees. It is from those orders that the appellant now appeals.
II.
We have previously expressed our method of interpretation of statutes in syllabus point 3 of Shell v. Bechtold, 175 W.Va. 792, 338 S.E.2d 393 (1985) as follows:
"`"A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith." Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).' Syl. pt. 1, State ex rel. Simpkins v. Harvey, [172] W.Va. [312], 305 S.E.2d 268 (1983)."
We have also stated the following: "`The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.' Syl.Pt. 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975)." Syl.Pt. 2, State ex rel. Fetters v. Hott, 173 W.Va. 502, 318 S.E.2d 446 (1984). "`In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.' Syl.Pt. 3, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975)." Syl.Pt. 3, State ex rel. Fetters, 318 S.E.2d 446.
*99 In the present case, the appellants contend that the lower court erred in the following manner: (1) permitting the appellees to be included within the "employed under contract" language when the Legislature intended that phrase to apply only to classroom school teachers rather than to full-time employees of the State Department of Education such as the appellees; (2) failing to recognize that the term "employed under contract" was a short-hand referral to the school personnel contracts provided in W.Va.Code § 18A-2-1, et seq., which are required on a year-to-year basis, as opposed to the annual appointment of personnel such as the appellees by the State Board of Education; and, (3) contradicting the advice and procedure adopted by the appellants' Board of Trustees inasmuch as other contributing State agency members did retire and terminate employment by December 31, 1988, to avail themselves of the Early Retirement Incentive Program in accordance with the provisions of W.Va.Code § 18-7A-35b.
The appellants contend that the appellees were not "employed under contract" within the meaning of W.Va.Code § 18-7A-35b. Instead, the appellees served by "letter of appointment" from the State Superintendent. The appellants maintain that the Legislature was cognizant of the distinction between employees "employed under contract" and those employed under a "letter of appointment." Moreover, the appellants contend that the Legislature's intent in providing an exception for employees "employed under contract," i.e. teachers, was to prevent classroom teachers wishing to retire from being placed in the precarious position of having to retire by December 31, 1988, in the middle of the school year, in order to participate in the Early Retirement Incentive Program. Consequently, language was drafted which provided an extension of the deadline from December 31, 1988, to the end of the school year for classroom teachers, provided that they gave "notice to their respective county boards of education by ... [December 31, 1988]...." W.Va.Code § 18-7A-35b(b).[2]
On November 15, 1988, the Attorney General's Office issued a Letter Opinion to William K. Simmons, Chancellor of West Virginia Board of Regents and Dr. Tom McNeel, State Superintendent of Schools. In that letter, the Attorney General interpreted the statute to allow for the extension of termination of employment for teachers until the end of their contract. However, the letter specified that the Department of Education personnel employed by the State Superintendent were not working under contract but were employed by "letter of appointment." Consequently, Executive Secretary Ansel relied upon the advice of the Attorney General in advising regular, full-time employees of the State Department of Education that they must terminate their employment by December 31, 1988, in order to avail themselves of the benefits of the Early Retirement Incentive Program. Following that advice, sixty-one former employees terminated their employment by December 31, 1988, and the two appellees did not.
We agree with the appellants' interpretation of the statute and find that the language "employed under contract" does not include regular, full-time employees of the State Department of Education. The Legislature, in allowing an extension to the end of the school year, contemplated that such extension would prevent classroom teachers from having to choose between abandoning their classes in mid-year or participating in the Early Retirement Incentive Program. Regular, full-time employees, such as the appellees, were required to retire by December 31, 1988. The appellees failed to retire by that date and now contend that they are entitled to receive the benefits conferred through the Early Retirement Incentive Program despite their *100 noncompliance. We find no merit to the appellees' contentions.
Based upon the foregoing, we conclude that the lower court erred by ruling that the appellees should be permitted to participate in the Early Retirement Incentive Program of the West Virginia Teachers Retirement System. We therefore reverse the decision of the Circuit Court of Kanawha County.
Reversed.
NOTES
[1] Mr. Burdette was Assistant Superintendent of Schools, and Mrs. Lee was a staff employee, non-teaching member. Both appellees were regular, full-time employees of the State Board of Education whose work year began on July 1 and continued through the following June 30.
[2] The appellees suggest that they are entitled to Early Retirement Incentive Benefits even if they do not come within the "employed under contract" exception. However, their June 17, 1988, letters of intent to retire under the initial statute are not sufficient to constitute compliance with the requirements of the Early Retirement Incentive Program. It is not until all prerequisites are met, including the actual termination of employment, that an employee may reap the benefits of the statute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330853/ | 283 S.E.2d 518 (1981)
BONE INTERNATIONAL, INC.
v.
John C. BROOKS.
No. 53.
Supreme Court of North Carolina.
November 3, 1981.
Fields, Cooper & Henderson by Milton P. Fields, Rocky Mount, for plaintiff-appellant.
Henson, Fuerst & Willey, P. A. by Thomas W. King, Rocky Mount, for defendant-appellee.
CARLTON, Justice.
I.
Plaintiff filed a complaint seeking to recover for labor and parts furnished in repairing *519 defendant's vehicles. The complaint alleged that the work was done pursuant to an express contract and on an "open account" basis. Plaintiff alleged that under the terms of the open account agreement defendant agreed to pay plaintiff the invoice price for the labor and materials furnished. Plaintiff further alleged that it had furnished labor and materials in the amount of $4,141.84 and had billed defendant for that amount and that defendant refused to pay. Plaintiff prayed that it recover the sum of $4,141.84 plus interest and costs.
Defendant answered, denying the material allegations of the complaint and alleging that the repair work for which plaintiff had not been paid was improperly done. He also moved in his answer to dismiss plaintiff's complaint on the ground that he was an employee of John C. Brooks, Inc., and at all times functioned as an employee of the corporation and not in his individual capacity. Defendant further alleged that the repairs in question were performed on trucks owned by the corporation and that he, defendant, is not a proper party to this action.
Both parties moved for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, and each presented affidavits and exhibits.
Defendant submitted an affidavit from his attorney who averred that defendant incorporated his business on or about 7 September 1976 and that the necessary papers attesting to the incorporation were filed as provided by law. He further averred that he and defendant proceeded to notify all persons doing business with defendant that the business formerly conducted as a sole proprietorship was now a corporation; that titles to motor vehicles were changed to reflect the corporate name; that a letter was sent to International Harvester Credit Corporation requesting information concerning the transfer of titles to the vehicles to the corporate name; that a reply letter was received by the attorney indicating that the transfers were being made and that a copy of the letter was being sent to an employee of plaintiff; and that numerous assets had been transferred to the corporation.
Defendant submitted exhibits indicating that the transfer of titles was made and that he subsequently had signs painted on the trucks indicating the corporate name. Defendant further averred that, since the incorporation, numerous business dealings were conducted with plaintiff for repairs of defendant's vehicles. The repair bills were paid with checks drawn on the account of John C. Brooks, Inc., and signed by John C. Brooks subsequent to the time of incorporation. The checks were submitted as exhibits. One of them was allegedly completed in the handwriting of the plaintiff's president. Defendant further averred that he at no time indicated to plaintiff's president or any agent, employee or director of plaintiff that he was anything but an employee and agent of the corporation.
In an affidavit, plaintiff's president averred that he had several discussions with defendant concerning the subject matter of this litigation, that defendant had agreed to pay the amount set forth in the complaint and that defendant at no time during the discussions had contended that he did not personally owe the bill. After these discussions, defendant wrote two letters in reply to inquiries from plaintiff's president in an individual capacity. The letters were written on plain white paper and were signed "John C. Brooks." In the letters, defendant raised no question as to proper notification of the bill nor did he indicate that the bill should have been made out to a corporation. One of the letters acknowledged that defendant had been receiving the bills and contained the statement that he was expecting plaintiff to remit to him any remaining amount arising from the sale of a truck. Plaintiff's chief bookkeeper averred that he had examined the account of the defendant with plaintiff and that at no time had defendant advised the plaintiff by letter or otherwise that the trucks involved in the lawsuit had been conveyed to a corporation. He further averred that all business transacted with or for the defendant was transacted in the same manner as all prior business.
*520 Based on the pleadings, affidavits and exhibits, Judge Harrell directed entry of summary judgment for defendant on the ground that "there is no genuine issue as to any material facts."
Plaintiff appealed to the Court of Appeals and that court, in a unanimous decision, affirmed the trial court. We granted plaintiff's petition for discretionary review on 2 June 1981.
II.
The sole question on this appeal is whether the trial court erred in allowing summary judgment for defendant.
Rule 56(c) of the North Carolina Rules of Civil Procedure provides that summary judgment will be granted "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 judgment as a matter of law."
An issue is genuine if it "may be maintained by substantial evidence." Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). An issue is material if, as alleged, facts "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." Id. More succinctly, a fact is material if it would constitute or would irrevocably establish any material element of a claim or a defense. See Louis, A Survey of Decisions Under the New North Carolina Rules of Civil Procedure, 50 N.C.L.Rev. 729, 736 (1972).
A party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party's claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). Generally this means that on "undisputed aspects of the opposing evidential forecast," where there is no genuine issue of fact, the moving party is entitled to judgment as a matter of law. 2 McIntosh, North Carolina Practice and Procedure § 1660.5, at 73 (2d ed. Supp.1970). If the moving party meets this burden, the non-moving party must in turn either show that a genuine issue of material fact exists for trial or must provide an excuse for not doing so. Moore v. Fieldcrest Mills, Inc., 296 N.C. at 470, 251 S.E.2d at 421-22; Zimmerman v. Hogg & Allen, 286 N.C. at 29, 209 S.E.2d at 798. If the moving party fails to meet his burden, summary judgment is improper regardless of whether the opponent responds. 2 McIntosh, supra. The goal of this procedural device is to allow penetration of an unfounded claim or defense before trial. Id. Thus, if there is any question as to the credibility of an affiant in a summary judgment motion or if there is a question which can be resolved only by the weight of the evidence, summary judgment should be denied. Moore v. Fieldcrest Mills, Inc., 296 N.C. at 470, 251 S.E.2d at 422.
In order to satisfy this burden defendant, as the moving party here, must initially (1) prove that an essential element of plaintiff's claim is nonexistent or (2) show that a forecast of the plaintiff's evidence indicates it will be unable to prove facts giving rise at trial to all essential elements of its claim.
In holding that summary judgment for defendant was proper, we think that the Court of Appeals misconstrued the gravamen of plaintiff's action. That court discussed extensively two opinions of this Court which dealt with the liability of an individual defendant vis-á-vis the liability of his corporation. Howell v. Smith, 258 N.C. 150, 128 S.E.2d 144 (1962), and Howell v. Smith, 261 N.C. 256, 134 S.E.2d 381 (1964). Those decisions dealt with the liability of agents for undisclosed principals. In the second Howell decision, Chief Justice Sharp stated, "Ordinarily the agent who made the original purchase is not liable if the third party continues to deliver goods *521 after acquiring knowledge of the principal's identity unless he has agreed to be personally liable." Id. at 260, 134 S.E.2d at 385. The Court of Appeals concluded that plaintiff here was attempting to hold defendant liable as an agent for an undisclosed principal. The Court of Appeals stated, "Plaintiff is of course wise in seeking to characterize defendant as an agent for an undisclosed principal. Were defendant acting for a disclosed principal, plaintiff would have no case." 51 N.C.App. at 187, 275 S.E.2d at 559. That court went on to hold that the invoices from plaintiff to defendant for services rendered in 1976 and 1977 bearing the corporate name established, as a matter of law, knowledge on the part of the agent of the plaintiff who filled out the invoice that defendant's trucking business was being carried on as a corporation and that defendant had authority to act for the corporation. Judge Clark concluded, "The knowledge of plaintiff's agent must be imputed to plaintiff." Id.
Reliance on the Howell decisions and the numerous principles of agency discussed in those decisions was, we think, misplaced. It is clear from the plaintiff's complaint, pleadings, affidavits and exhibits that plaintiff was not attempting to hold defendant liable on an agency theory. It is clear that plaintiff's complaint sought to hold defendant liable as an individual because plaintiff had continued to do business with him as an individual as it always had and because it had had no reason to believe that defendant was attempting to do business as a corporation.
In this light, therefore, the crucial question in determining whether summary judgment for defendant was proper is whether defendant established that a forecast of plaintiff's evidence indicated that plaintiff would not be able to prove facts giving rise to the claim that defendant was acting in an individual and not a corporate capacity. Plaintiff's evidence, as forecasted by his pleadings, affidavits and exhibits, clearly established a genuine and material issue of fact as to whether defendant was acting in an individual or corporate capacity.
Plaintiff's president's affidavit tends to show that defendant agreed to pay the amount sought in the complaint and at no time during dealings with plaintiff's president contended that he did not personally owe the bill. Moreover, defendant wrote two letters to plaintiff's president wherein he failed to suggest that the bill should have been addressed to the corporation and one which stated that he expected plaintiff to remit to him any surplus arising from the sale of a truck. Also contained in one of plaintiff's affidavits was an allegation that plaintiff had never been informed that any of defendant's trucks had been conveyed to a corporation and that all business transacted with defendant was transacted in the same manner as all prior business. The letters from defendant to plaintiff were on plain white paper and were signed by defendant individually and not as an agent of the corporation.
Clearly, a genuine issue as to a material fact, whether defendant had properly notified plaintiff that his business was incorporated such that he was not personally liable for its debts, arose from this forecast of plaintiff's evidence. Whether defendant held himself out to do business individually with plaintiff or with the protection of the corporate veil is an issue for the jury. Plaintiff's forecast of evidence is clearly sufficient to allow it to proceed to trial on the theory that defendant was conducting his business as an individual and was therefore personally liable for the debt in question.
For the reasons stated, the decision of the Court of Appeals is reversed and this cause is remanded to that court with instructions to remand to the District Court, Nash County, for further proceedings not inconsistent with this opinion.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262691/ | 306 A.2d 655 (1973)
John C. KENNEDY, Appellant,
v.
DISTRICT-REALTY TITLE INSURANCE CORPORATION, Appellee.
No. 6856.
District of Columbia Court of Appeals.
Argued March 1, 1973.
Decided June 21, 1973.
Edmund H. Feldman, Washington, D. C., for appellant.
Thomas Penfield Jackson, Washington, D. C., for appellee.
Before REILLY, Chief Judge, and KELLY and HARRIS, Associate Judges.
KELLY, Associate Judge.
In October of 1967, appellant responded to a newspaper advertisement offering to "pay up to 2% per mo. for secured investment (min. $10,000)". He telephoned John H. Haas, President of Workshop 221, Inc. After several conversations with Haas he agreed to lend Workshop 221 $10,000 in the belief that he would receive a first trust on certain property.
Appellant asked Haas which title company he preferred to use for settlement. Haas stated District-Realty Title Insurance Corporation, it appearing that he previously had dealings with one of its then-employees, Reginald S. Turner. Toward the end of October appellant visited the offices of District-Realty to speak with Mr. Turner but Turner was too busy to see him. He telephoned Turner the next day to ascertain whether District-Realty would be handling the transaction and instructed Turner that he wanted the deed of trust to provide for a right to change trustees, a penalty for late payment, and "a couple of other details". According to appellant, Turner informed him "I have handled a lot of first trusts for Workshop 221 similar to this."[1] There was no other discussion of the priority of the lien appellant would receive or the purchase of title insurance.[2]
Haas informed Kennedy that a meeting would be held with Turner on November 13 to consummate the loan transaction. Kennedy assumed that this was to be a "settlement" and that it would be held at the offices of the title company like other *656 settlements he had attended. On the morning of the 13th Kennedy called Turner to advise him he would be a little late for settlement, but Turner was not in. Kennedy then called Haas who told him settlement would be at the offices of Workshop 221, Inc. instead. Kennedy arrived with a cashier's check for $10,000 payable to his order. Turner prepared a deed of trust and promissory note and told Kennedy to endorse the check so that it was payable directly to Workshop 221, Inc. Kennedy gave the check to Turner and arranged with Turner for the procurement of title insurance on the deed of trust for which Kennedy agreed to pay one-third of the premium and Haas agreed to pay the remainder.
The title insurance policy issued on December 1. It was the first report on the state of title to the property appellant had received and it disclosed that rather than a first trust as anticipated, he had a third trust, subordinate to prior liens of $12,300 and $1,535.38. No principal payments were thereafter made on the note although $450 in interest was paid; consequently, Kennedy brought suit in Superior Court against Haas, Workshop 221, Inc., Turner, and District-Realty.
Default judgments on ex parte proof were entered against Haas, Workshop 221, Inc., and Turner in his individual capacity. The cause against District-Realty was tried, nonjury, before the late Judge Justin L. Edgerton on June 23, 1970. Kennedy alleged that under the rules of agency the title company was liable on the contract created by its agent, Turner, whereby the title company purportedly agreed to settle Kennedy's loan and to hold the check in escrow, to be disbursed on the condition that the loan would be secured by a first deed of trust.
At the close of plaintiff's case District-Realty moved to dismiss on the grounds that the evidence failed to establish prima facie an agreement, express or implied, whereby Turner undertook to act as escrow agent in the transaction or, alternatively, to disburse the money only on the condition that Kennedy receive a first trust as security for his loan. The motion was taken under advisement but prior to decision the trial judge died. Thereafter the motion was submitted upon the record to another judge who, on July 29, 1972, granted the dismissal, finding that there was no evidence of any agreement between Kennedy and District-Realty, nor of any discussion between Kennedy and Turner about Kennedy's securing a first deed of trust on the property.
On this appeal appellant argues that the trial court erred "in finding that no evidence had been produced to show that plaintiff and Mr. Turner ever discussed whether plaintiff was to receive a first deed of trust on the property involved." [Brief for Appellant at 5.]
Throughout the proceedings appellee has stipulated that Turner was acting within the scope of his employment and had apparent authority to bind the title company to an agreement such as the one described by appellant. It has maintained, however, that the evidence was insufficient to establish that District-Realty, through Turner, made any agreement to act as an escrow agent or to disburse the $10,000 to Workshop 221 only upon the security of a first deed of trust on the property. We agree and affirm.
Although an escrow agreement need not be in writing,[3] a valid escrow agreement requires that the proposed escrow agent know of and agree to perform the function of receiving a deposit.[4] As outlined in Johansson v. United States, 336 F.2d 809, 815 (5th Cir. 1964),
*657 The essential elements of a valid escrow arrangement are a contract between the grantor and the grantee agreeing to the conditions of a deposit, delivery of the deposited item to a third party, and communication of the agreed upon conditions to the third party. [Citations omitted.]
Similarly, in Home Ins. Co. of New York v. Wilson, 210 Ky. 237, 275 S.W. 691, 693 (1925), the court explained:
Whatever may be the other necessary elements to create an escrow delivery, all the text-writers and adjudged cases hold that there must be a depositary with instructions from the parties as to their agreement concerning the delivery and taking effect of the escrow instrument, and such instructions to the depositary constitute what the law denominates the "escrow agreement," which is a different thing from the instrument placed in escrow. In other words, there can be no escrow delivery except upon some condition agreed upon by the parties, and which condition contains the terms of the escrow agreement, and must be communicated to the depositary, and his agreement to accept the custody of the instrument upon those terms, for until then his responsibility does not attach.. . .
Clearly, the facts in the instant case fall short of establishing the existence of such an escrow agreement. Appellant never instructed Turner that he was to receive and hold the funds upon the condition that the loan be secured by a first trust on the property. Viewing the evidence in the light most favorable to appellant,[5] the only reference to a first trust between Turner and Kennedy was a vague statement by Turner that he had handled first trusts for Workshop 221, Inc. on other occasions. Kennedy gave Turner no instructions relating to the priority of his lien, or conditions precedent to disbursement of the funds, nor did he order a title search on the property prior to consummating the loan. In the absence of such an agreement, there is no basis for a finding of liability on the part of Turner's principal, District-Realty.
Affirmed.
NOTES
[1] Tr. at 22.
[2] There was also a second telephone conversation between Kennedy and Turner. When asked at trial if he had given Turner any other instructions, Kennedy replied:
No, I mentioned it was a ten thousand dollar loan and the address and I didn't go into much because we were dealing with District Realty and felt I was dealing with a reputable organization. [Tr. at 17.]
[3] Kelly v. Steinberg, 148 Cal.App.2d 211, 306 P.2d 955 (1957).
[4] Rowe v. Shehyn, 192 F.Supp. 428 (D. D.C.1961).
[5] Lo Medico v. Simkowitz, D.C.Mun.App., 158 A.2d 681 (1960). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262701/ | 113 N.H. 261 (1973)
ELEANOR C. NICKAS
v.
PAUL ANTON NICKAS
No. 6514.
Supreme Court of New Hampshire.
May 31, 1973.
*262 Stanley, Tardif and Shapiro (Mr. R. Peter Shapiro orally) for the plaintiff.
Upton, Sanders & Upton (Mr. J. Gilbert Upton orally) for the defendant.
GRIMES, J.
In this petition to enforce an Illinois divorce decree giving plaintiff judgment for unpaid support payments, an amount for counsel fees and an alleged debt, and ordering defendant to pay $250 per month alimony, the questions raised by the transfer without ruling by Loughlin, J. on an agreed statement of facts are whether the Illinois court had in personam jurisdiction, whether the Illinois decree is entitled to full faith and credit, and the effect of a divorce decree in favor of this defendant in this State prior to the divorce decree in Illinois.
It is our opinion that the judgment representing unpaid alimony payments and counsel fees is entitled to full faith and credit and that the New Hampshire divorce decree has *263 no effect on the Illinois decree with respect to these judgments.
According to the agreed facts, Eleanor had been domiciled in Illinois for some six years prior to her marriage in Illinois to Paul on January 13, 1969. Paul had been domiciled in New Hampshire for over ten years at the time of the marriage but went to Illinois and married Eleanor and lived with her there until February 4, 1969, when he returned to New Hampshire. Eleanor remained in Illinois until April 15, 1969, when she visited Paul in New Hampshire until April 20, 1969. On May 23, 1969, Eleanor filed an action for separate maintenance in Illinois and obtained personal service on Paul in Massachusetts on June 12, 1969. Paul filed a special appearance to contest the jurisdiction of the Illinois court which, after a hearing at which Paul was represented by counsel, ruled that it had in personam jurisdiction over Paul. No appeal was taken from this ruling. Paul, although notified, was not represented at a hearing on July 2, 1969, following which the court ordered $200 a month support and $500 attorney's fees and ruled that the orders were to be in personam.
On June 27, 1969, Paul filed a libel for divorce in New Hampshire which was served in hand on Eleanor in Illinois on July 18, 1969. On July 28, 1969, a petition for injunction was served on Paul and on his attorneys. The petition sought to restrain the defendants from proceeding further with the New Hampshire libel. On August 6, 1969, the Illinois court found Paul and his lawyer in contempt, ruled that New Hampshire was to give full faith and credit to its orders and that judgment was entered for $400 past due support and $500 attorney fees. On October 22, 1969, the Illinois court found Paul in default and entered a decree of separate maintenance, gave judgment for $1,000 accrued temporary alimony due, $500 for attorney fees and also entered judgment for $925 for moneys loaned by Eleanor to Paul.
Eleanor filed no appearance in the New Hampshire divorce action and on December 2, 1969, a decree of divorce in favor of Paul became effective.
On April 22, 1970, Eleanor filed an amended and supplemental complaint for divorce in Illinois with service being *264 made by certified mail on Paul in Massachusetts. On May 14, 1970, the Illinois court decreed a divorce to Eleanor on the ground of desertion, entered a money judgment against Paul for $3,175, that Eleanor's lawyer be awarded $2,500 for legal services and that a money judgment be entered in his favor for that amount, and that Paul pay $250 per month alimony. Paul was not present at any of the Illinois proceedings nor was he represented by counsel except at the first hearing on the question of jurisdiction.
On August 28, 1970, Eleanor commenced the present proceedings and Paul filed the motion to dismiss which gave rise to this transfer.
The Illinois court's ruling that it had in personam jurisdiction over Paul was based on the Illinois long-arm statute. The statute provides that a person who does any of the enumerated acts submits to the jurisdiction of the Illinois courts for any cause of action arising out of the doing of the acts, and contains a section on actions for divorce and separate maintenance which reads as follows:
"(e) With respect to actions of divorce and separate maintenance, the maintenance in this State of a matrimonial domicile at the time the cause of action arose or the commission in this State of any act giving rise to the cause of action". (Ill. Ann. Stat., ch. 110 § 17 (1) (e) (1968)).
Defendant argues that the Illinois court's ruling was based upon an unconstitutional law and that it may therefore be attacked here. He urges that the acts relied on to give jurisdiction do not meet the standards required by International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945), and Hanson v. Denckla, 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958). In the former case, it was said that there must be "sufficient contacts or ties with the state of the forum to make it reasonable and just according to our traditional conception of fair play and substantial justice to permit the state to enforce the obligations which appellant has incurred there", and "to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, *265 and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can ... hardly be said to be undue". International Shoe Co. v. Washington, 326 U.S. at 319-20, 90 L. Ed. at 104, 66 S. Ct. at 160 (1945). In Hanson v. Denckla, 357 U.S. at 251, 2 L. Ed. 2d at 1296, 78 S. Ct. at 1238 (1958), the required "minimal contacts" were found lacking.
In this case, the defendant Paul went into the State of Illinois, married one of its residents and lived with her as man and wife for a period of time and then according to the findings of the Illinois court deserted her, leaving her in Illinois without support. The marriage and cohabitation were activities of which defendant purposefully availed himself, thus invoking the benefit and protection of Illinois laws. These activities gave rise to the obligations of support sought to be enforced. We think there were more than the "minimal contacts" necessary to meet the jurisdictional requirements under International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945), Hanson v. Denckla, 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958), and McGee v. International Life Ins. Co., 355 U.S. 220, 2 L. Ed. 2d 223, 78 S. Ct. 199 (1957), and that the Illinois statute is constitutional as applied to this defendant. Cf. Hawes v. Hawes, 130 Ill. App. 2d 546, 263 N.E.2d 625 (1970).
Also, the jurisdictional question was fully heard by the Illinois court at a hearing at which defendant was represented by counsel. The issue was decided against him and he did not appeal that ruling. He is not entitled to relitigate that issue here. Sherrer v. Sherrer, 334 U.S. 343, 92 L. Ed. 1429, 68 S. Ct. 1097 (1948); Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 75 L. Ed. 1244, 51 S. Ct. 517 (1931).
All orders of the Illinois court sought to be enforced here arise out of the same proceeding (#69 D9450) in which that court after a hearing at which Paul was represented by counsel found and ruled that it had in personam jurisdiction over Paul. The alimony decree was made on an amended and supplemental complaint in the same proceeding.
The Illinois decree as to alimony was a final decree in the sense that it is not subject to modification as to payments *266 past due. Gregory v. Gregory, 52 Ill. App. 2d 262, 202 N.E.2d 139 (1964); Mendenhall v. Mendenhall, 43 Ill. App. 2d 294, 193 N.E.2d 207 (1963). In addition, the alimony past due at the time of the decree was reduced to a money judgment as was the amount ordered to be paid in attorney's fees. The Illinois decree therefore is entitled to full faith and credit in this State. Moore v. Moore, 96 N.H. 130, 71 A.2d 409 (1950); Williams v. North Carolina, 317 U.S. 287, 87 L. Ed. 279, 63 S. Ct. 207 (1942).
Although Paul's New Hampshire divorce decree was effective prior to the Illinois divorce decree, this does not affect the validity of the Illinois alimony decree. The New Hampshire court did not purport to adjudicate Eleanor's right to alimony or support, and it then had no personal jurisdiction over her. Vanderbilt v. Vanderbilt, 354 U.S. 416, 1 L. Ed. 2d 1456, 77 S. Ct. 1360 (1957); Armstrong v. Armstrong, 350 U.S. 568, 100 L. Ed. 705, 76 S. Ct. 629 (1956).
Defendant has filed a plea in recoupment in which he seeks damages from the plaintiff for fraud in obtaining the Illinois decree. This is a separate cause of action from the Illinois proceeding and raises issues not litigated or in issue there. The defendant's plea is permitted under our practice. Lovejoy v. Ashworth, 94 N.H. 8, 45 A.2d 218 (1946); Laconia Nat'l Bank v. Lavallee, 96 N.H. 353, 77 A.2d 107 (1950); McGrath v. McGrath, 109 N.H. 312, 251 A.2d 336 (1969).
Remanded.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262716/ | 269 Md. 352 (1973)
306 A.2d 220
BIGGS ET AL.
v.
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION ET AL.
[No. 1 (Adv.), September Term, 1973.]
Court of Appeals of Maryland.
Decided June 21, 1973.
*353 The cause was argued before MURPHY, C.J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.
Francis X. Gaegler, Jr., for appellants.
Peter F. O'Malley, with whom were Kahler, DeBlasis, Shipley & O'Malley on the brief, for Washington National Arena Limited Partnership; Joseph S. Casula, County Attorney, and John R. Barr, Associate County Attorney, on the brief for Prince George's County; Robert H. Levan and Sanford E. Wool on the brief for Maryland-National Capital Park and Planning Commission.
SINGLEY, J., delivered the opinion of the Court.
This case is a frontal attack by Mr. Biggs and a group of his fellow citizens and property owners against the construction of a sports arena by Washington National Arena Limited Partnership (the Partnership) on a 75-acre tract at Largo, Prince George's County, Maryland, purchased for park purposes by Maryland-National Capital Park and Planning Commission (the Commission), which had been leased by the Commission to a corporation which then assigned its lease to the Partnership.
The attack was mounted by the filing in the Circuit Court for Prince George's County of a bill of complaint in equity against the Commission, the Partnership, Prince George's County (the County) and others for injunctive and declaratory relief. While the bill of complaint, as originally filed, utilized what was characterized by the chancellor as a *354 "scatter-gun" approach, the amended bill of complaint brought only against the Commission and the Partnership sharpened the issues only slightly. By leave of court, the County was permitted to intervene. In any event, the matter came on for hearing in the Circuit Court for Prince George's County on the demurrer of the County, or alternatively, on the motion of the County for summary judgment. From an order sustaining the County's demurrer and from an order and a decree declaring the lease and the ordinances enacted to implement the lease to be valid, the complainants have appealed.
At argument before us, the issues have been narrowed to two questions, stated by the appellants, however, in a more prolix fashion. Basically, the questions are these:
(i) Is County Bill 167-72, approved on 12 October 1972, an emergency bill which amended the text of the Prince George's County zoning ordinance, and permitted commercial recreational facilities on land leased from a public agency in an R-R (rural residential) zone invalid as an emergency measure and subject to referendum?
(ii) Is County Bill 160-72, approved on 19 October 1972 as an emergency measure, which purported to transfer capital funds of $2,000,000.00 from a proposed administrative office building to the construction of roads and a sewage treatment plant at Largo invalid as an emergency measure and subject to referendum?
(i)
We regard our opinion in Prince George's County, Maryland v. Maryland-National Capital Park and Planning Commission, 269 Md. 202, 306 A.2d 223 (1973) as clearly dispositive of the attack on County Bill 167-72. Here, the County Council of Prince George's County was sitting as the district council under the Regional District Act, Ch. 780 of the Laws of 1959, as amended, a public general law which takes precedence over the Prince George's County Charter. *355 As a consequence, the bill was not subject to the Charter provisions respecting referendum and emergency legislation.
(ii)
As regards County Bill 160-72, which transferred $2,000,000.00 from capital funds budgeted for a county administration building to the construction of access roads and sewer facilities at Largo, apparently in reliance on Charter, Prince George's County (1970) § 818 and § 824, see Prince George's County v. Beard, 266 Md. 83, 91-92, 291 A.2d 636 (1972), this was enacted as an emergency measure in the manner contemplated by Charter § 317, and was declared to be valid by the court below. While the appellants urge that no true emergency existed, it must be remembered that the Council alone had the power to determine whether there was an emergency as contemplated by the Charter and its determination is conclusive and not subject to judicial review. Except for Baltimore v. Hofrichter, 178 Md. 91, 99, 100, 11 A.2d 375 (1940) and Geisendaffer v. Mayor and City Council, 176 Md. 150, 3 A.2d 860 (1939) which are possibly distinguishable, we have consistently held that a legislative determination of emergency is conclusive and not reviewable, Potts v. Governor, 255 Md. 445, 448, 258 A.2d 180 (1969); Heaton v. Mayor and City Council of Baltimore, 254 Md. 605, 255 A.2d 310 (1969); First Continental v. Director, 229 Md. 293, 302, 183 A.2d 347 (1962); Hammond v. Lancaster, 194 Md. 462, 476, 71 A.2d 474 (1950); Norris v. Baltimore, 172 Md. 667, 686, 192 A. 531 (1937); Culp v. Commissioners of Chestertown, 154 Md. 620, 623, 141 A. 410 (1928).
As an emergency bill, however, it is not insulated from referendum under § 319;[1] it simply remains in force, despite the filing of a petition signed by 10,000 qualified voters, and its effectiveness persists until 30 days after it has been rejected by a majority of the qualified voters of the county voting thereon, should it be so rejected. While this question *356 was dealt with only obliquely in the opinion of the court below, and not at all in the order which was entered on 13 December 1972, we are satisfied that the order should have declared that the complainants were entitled to petition County Bill 160-72 to referendum, and should be so modified.
Order of 13 December 1972 modified, and as modified, affirmed; decree of 16 December 1972 affirmed; costs to be paid one-half by appellants and one-half by appellees.
NOTES
[1] It is clear from the record that the transfer was not from the County's current expense budget, Charter § 807, but from the Capital budget, § 806 and was therefore not insulated from referendum by § 319 (2). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262735/ | 207 F.Supp. 374 (1962)
M. R. HODGES, Plaintiff,
v.
GEORGIA KAOLIN COMPANY, Defendant.
Civ. A. No. 1812.
United States District Court M. D. Georgia, Macon Division.
July 2, 1962.
G. Lee Dickens, Jr., Milledgeville, Ga., for M. R. Hodges.
John B. Harris, Jr., of Harris, Russell & Watkins, Macon, Ga., for Georgia Kaolin Co.
ELLIOTT, District Judge.
This action was brought by the Plaintiff in the Superior Court of Twiggs County, Georgia, where the Defendant has a place of business. The cause was removed from the state court to the federal court by the Defendant on a claim of diversity of citizenship of the parties. The Plaintiff challenges the existence of such diversity by a motion to remand the cause to the state court. Except for the ground claimed, there does not appear to be any other basis for federal jurisdiction. The Defendant alleges that its principal place of business is in New Jersey. The Plaintiff contends that it is in Georgia. The Defendant is a New Jersey corporation, so the question of whether or not this court has jurisdiction turns upon what finding this court makes as to the actual principal place of business of the Defendant. The 1958 amendment to Title 28 U.S.C.A. § 1332(c) provides: "a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." The present action was commenced in November, 1961 and jurisdictional facts existing at that time must furnish the basis for the Court's conclusion as to the Defendant's principal place of business.
A hearing was had on Plaintiff's motion to remand and evidence was introduced in the form of affidavits, answers to interrogatories, responses to requests for admission, documents, and oral testimony. On the basis of this evidence the Court finds that at the time this action was filed the Defendant was engaged in the business of mining, processing and selling kaolin, a clay that is used widely in the ceramic, paper and chemical industries. Its mines and its processing plant are located on lands owned or leased by the corporation in Twiggs County, Georgia. It has a financial interest in some other mining companies and it owns *375 some lands and leases in other states, but the only mines and processing plants owned and operated by the company are in Georgia. The company is not authorized to do business in any state other than Georgia and New Jersey. It is a New Jersey corporation and all of its corporate stock is beneficially owned by E. J. Grassman, a citizen of New Jersey. Its product is sold in many states and in some foreign countries. In some instances the sale is made directly to the customer and in other instances through distributors or agents. In every instance the product is shipped directly from the processing plant in Georgia to the customer. All of the executive offices are located in Elizabeth, New Jersey. Sales are supervised there and the company financing is done there. All of the corporate directors live in New Jersey and all directors meetings are held in New Jersey. All of the corporate officers, with one exception, live in New Jersey. An Assistant Secretary lives in Georgia. The corporate records are kept in New Jersey and federal income tax returns are filed there.
None of the officers or directors of the Defendant who live in New Jersey are full-time employees of the company, and the executive, sales and financial office quarters in Elizabeth are shared by the Defendant with other corporations, some or all of which are controlled by the same interests which control Defendant.
The Defendant carries on its operations in Georgia through four departments or divisions. There is a Lands Division, which is concerned with the acquisition of lands by purchase or lease and with exploration and general land management; the Mining Division, which is concerned with the mining of clay; the Manufacturing Division, which handles all phases of processing the clay; and the Technical Division, which presumably has to do with research and engineering. Each of these departments is headed by a full-time manager, and each of these managers is a resident of Georgia. There is no general superintendent and the general overall direction of the operations centers in Mr. Grassman in New Jersey, and communication between the New Jersey office and the Georgia operation is maintained by telephone and teletype.
The Defendant has a total of 470 employees. Of this total 419 are employed in Georgia and 51 are employed in New Jersey. All of the 419 Georgia employees are employed full-time, and 375 of them perform no services outside of Georgia. It is not clear from the record what portion of the New Jersey employees are full-time employees, but it does appear that only 5 of the 51 perform their services entirely within the state of New Jersey and they are designated as "maintenance personnel". It has been previously noted that the officers are not full-time employees, but the record does show that about 60 per cent of such time as they do give to the company is spent in New Jersey, about 10 per cent in Georgia, and about 30 per cent elsewhere.
Of the total book value of Defendant's lands, buildings, machinery, equipment and inventories more than 98 per cent is located in Georgia. Practically all of its intangible assets are held in New Jersey.
The Defendant was protected from disclosing information with regard to its gross tonnage production and with regard to its gross sales and net profits, but since the only mines and processing plants operated by the Defendant are located in Twiggs County, Georgia, it is obvious that these results, whatever they may be, must be primarily associated with and attributable to the Georgia operations.
From these facts the "principal place of business" of Georgia Kaolin Company must be determined. The statute itself offers no guide in deciding what and where the principal place of business is. The question is one of fact and prior cases are, therefore, of limited assistance. We are aware of only one case in the Fifth Circuit involving an interpretation of the 1958 amendment, (Canton et al. v. Angelina Casualty Company, 279 F.2d 553) and there the facts were so *376 dissimilar as to be of no help here. A review of the cases decided in the other Circuits reveals a division as to the standard to be applied in making this determination. Some of the cases are decided on the "nerve center" theory. Scot Typewriter Co., Inc. v. Underwood Corp., D.C. S.D.N.Y.1959, 170 F.Supp. 862. Others search for the "center of corporate activity". Kelly v. United States Steel Corporation, 3 Cir. 1960, 284 F.2d 850. The Senate Report accompanying the 1958 amendment indicates that the meaning of "principal place of business" is to be found in the precedents interpreting the same phrase in Sec. 2 of the Bankruptcy Act, 11 U.S.C.A. § 11, sub. a(1). Senate Report No. 1830, 85th Congress, 2nd Session (1958), U.S.Code Congressional & Administrative News, p. 3102. Here again the cases reveal a wide diversity of views as related to varied factual situations. In Continental Coal Corp. v. Roszelle Bros., 6th Cir., 242 F. 243, there were facts somewhat similar to those involved here, and the Court held that the principal place of business was where the coal mines were operated in Kentucky rather than where the executive offices were located in Tennessee. That case was cited with approval by the Court of Appeals for the Fifth Circuit in Dryden et al. v. Ranger Refining & Pipe Line Co. et al., 280 F. 257.
The facts in this case now under consideration point to the conclusion that the principal place of business of Georgia Kaolin Company is in Twiggs County, Georgia. Its business is mining and processing kaolin, and since the only mines and processing plants operated by it are in Georgia, Georgia must be considered its principal place of business and the center of its activity. While it is true that the product of the mines must be sold, the selling is not the dominant feature of the business. It is the production end that is the prominent feature of the business and to which the efforts of the great majority of the employees and the large percentage of the assets are devoted. Since we conclude that the Defendant's principal place of business is in Georgia, diversity of citizenship does not exist and this Court is without jurisdiction.
The action is remanded to the Superior Court of Twiggs County, Georgia, and the Clerk of this Court is ordered to mail a certified copy of this order to the Clerk of the Superior Court of Twiggs County, Georgia. Costs are to be taxed by the Clerk against the Defendant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262739/ | 207 F.Supp. 856 (1962)
S. Kriete OSBORN
v.
SINCLAIR REFINING COMPANY.
Civ. No. 9769.
United States District Court D. Maryland.
July 3, 1962.
*857 John S. McDaniel, Jr., Calhoun Bond and Cable & McDaniel, Baltimore, Md., for plaintiff.
Milton Handler, Stanley D. Robinson, Kaye, Scholer, Fierman, Hays & Handler, New York City, and David R. Owen and Semmes, Bowen & Semmes, Baltimore, Md., for defendant.
THOMSEN, Chief Judge.
This case is before the Court on remand by the Fourth Circuit for the determination of all issues relating to damages whether plaintiff sustained any damages that are properly recoverable, and if so, the amount of such damages. Osborn v. Sinclair Refining Co., 4 Cir., 286 F.2d 832, 840, 841, reversing D.Md., 171 F.Supp. 37. The facts set out in those opinions will not be repeated here, except so far as may be necessary to understand the issues now before the Court.
Defendant (Sinclair) is a refiner and distributor of petroleum products. Plaintiff was a dealer to whom Sinclair had leased a service station in Reisterstown, Md., about ten miles north of the Baltimore City line.
At the original trial of this private antitrust suit plaintiff claimed that his service station lease and dealer's sales agreement were canceled by Sinclair in furtherance of an attempt by Sinclair to monopolize the sale of tires, batteries and accessories (TBA) to its service station dealers in Maryland in violation of section 2 of the Sherman Act, 15 U.S.C.A. § 2, and/or a combination or conspiracy between Sinclair and Goodyear Tire and Rubber Company (Goodyear) to restrain trade in those products, in violation of Section 1 of the Sherman Act, 15 U.S. C.A. § 1. Plaintiff conceded at the original trial that he had not proved a tying arrangement which violated Section 3 of the Clayton Act, 15 U.S.C.A. § 14. This court held that no violation of the anti-trust laws had been shown, and entered judgment for the defendant Sinclair. The reasons for the decision were set out in the opinion, 171 F.Supp. at 44 et seq.
The Fourth Circuit did not disturb the findings and conclusions of this Court that plaintiff had failed to prove an attempt to monopolize or to show that the agreements between Sinclair and Goodyear involved an unreasonable restraint of trade. See 286 F.2d at 835. The Fourth Circuit found, however, that an illegal tying arrangement existed between Sinclair and its dealers, unreasonable per se, and prohibited by Section 1 of the Sherman Act, 15 U.S.C.A. § 1, citing particularly Northern Pacific R. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545. See 286 F.2d at 835 et seq.
This Court had found that two factors contributed substantially to Sinclair's decision to cancel plaintiff's lease in May, 1956, namely: (1) the failure of plaintiff's gasoline gallonage to approach the figure which Sinclair thought it should have reached after Sinclair rebuilt and enlarged the station in 1953, and (2) the fact that plaintiff carried so much more Firestone TBA than Goodyear TBA. This Court found that neither of those reasons was predominant, and the Fourth Circuit did not disturb that finding. The Fourth Circuit said:
"Since Sinclair-Sherwood had the right to cancel the lease at its yearly termination date, the problem arises whether the damages flowing from the cancellation are recoverable as damages resulting from the violation of the anti-trust laws. See, however, Emich Motors Corp. v. General Motors Corp., 1951, 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951). Moreover, there is evidence *858 in the record that Osborn had to pay more for Goodyear TBA products than for other brands which he desired.
"Of course, if Osborn sustained no damages that are properly recoverable, he has no cause of action. Because of the questions inherent in this phase of the case, we think it appropriate to remand it to the District Court for further hearing, in which the parties will have full opportunity to present additional evidence on the question of damages in the period before as well as after the termination of the lease. The District Court should then determine what items, if any, are recoverable. We wish to emphasize that we are not at this time expressing or intimating any opinion on this aspect of the case." 286 F.2d at 840, 841.
On remand, four questions are presented:
A. What damages, if any, did plaintiff suffer as a result of the illegal tying arrangement in the period before the termination of the lease.
B. Whether the damages flowing from the termination are recoverable as damages resulting from the violation of the antitrust laws.
C. If so, the amount of such damages.
D. The amount of any counsel fees which should be awarded.
The findings of fact made by this Court after the original trial were not disputed by the parties on appeal or on remand, but the parties have filed an additional stipulation of certain facts, plaintiff has offered further testimony, and each side has offered exhibits on the issue of damages. The facts stated below with respect to each point have been found after considering all of the evidence. There is little or no dispute about the historical facts, but much dispute about the inferences to be drawn therefrom and about the rules of law to be applied thereto.
A
The first question is: what damages, if any, did plaintiff suffer as a result of the illegal tying arrangement in the period before the termination of the lease?
Sinclair agrees that under the decision of the Fourth Circuit, plaintiff is entitled to recover the difference between the cost of any Goodyear TBA which he purchased because of the alleged tie-in and the cost of the equivalent amount of Firestone TBA. Because of the statute of limitations, plaintiff has limited his claim under this head to the three years 1954, 1955 and Jan. 1-May 31, 1956. During those years, as during the entire period of his dealership, plaintiff's total purchases of Goodyear TBA were but a small fraction of his total TBA purchases, most of which he made from Firestone. It has been stipulated that if plaintiff had purchased from Firestone all of the TBA which he purchased from Goodyear during 1954, 1955 and 1956, the extra discount would have been $534 ($164 in 1954, $161 in 1955, and $209 in 1956). The evidence also shows that he purchased $4,068 from Goodyear in 1954, $4,983 in 1955 and $4,127 in 1956; and that under the method of proof of this type of damages adopted by plaintiff, there would have been no extra discount from Firestone and therefore no recovery for a particular year unless the additional purchases from Firestone during that year would have been sufficient to carry plaintiff into the next higher discount bracket. The necessary additional purchases from Firestone would have been $2,241 for the year 1954, $2,810 for 1955 and $4,077 for 1956. Stated another way, there would have been no additional discount from Firestone for the year 1954 if plaintiff had purchased as little as $1,823 from Goodyear in that year; the corresponding figures for 1955 and 1956 were $2,173 and $50 respectively.
Plaintiff testified that he purchased some Goodyear TBA because of customer requests for tire sizes not carried by Firestone, and said that he would have purchased at most $500 of Goodyear TBA *859 during the three years 1954-1956 apart from Sinclair's pressure. On the other hand, Sinclair calls attention to the fact that plaintiff bought $1,961 of Goodyear TBA in 1952, when as he testified, there was solicitation but no pressure, and argues that plaintiff would have willingly bought a similar amount in 1954 and 1955.
On all the evidence I find as a fact that apart from any pressure plaintiff would have bought in each year (including the five month period of 1956), not less than $150 nor more than $1,800 of Goodyear TBA.
This finding leads to the conclusion that for the period before the termination of the lease plaintiff has proved $325 damages, which, trebled, amount to $975.
B
"Whether the damages flowing from the cancellation are recoverable as damages resulting from the violation of the antitrust laws"[1] is a troublesome question, because of the difficulty of reconciling the policy of the antitrust laws with the policy of the general law to preserve the freedom of a private trader acting unilaterally to develop his business and to select his customers as he sees fit. See United States v. Parke, Davis & Co., 362 U.S. 29, 37-38, 44-46, 80 S.Ct. 503, 4 L.Ed.2d 505 discussing the development of the law since United States v. Colgate & Co., 250 U.S. 300, 306-308, 39 S.Ct. 465, 63 L.Ed. 992.
Chief Judge Sobeloff, speaking for the Fourth Circuit in McElhenney Co. v. Western Auto Supply Co., 269 F.2d 332, 337, said: "Generally speaking, the right of customer selection is sanctioned by both statute and case law. Absent conspiracy or monopolization, a seller engaged in a private business may normally refuse to deal with a buyer for any reason or with no reason whatever. Thus, the courts have until now not held a seller liable in damages for refusing to deal with one who is unwilling to enter into an unlawful vertical price agreement or an exclusive dealing arrangement."
A manufacturer or distributor cannot claim the benefit of the single trader rule if its refusal to deal is in furtherance of a conspiracy. It is now clear that concerted refusals to deal are illegal per se under sec. 1 of the Sherman Act. Radiant Burners, Inc. v. Peoples Gas Light and Coke Co., 364 U.S. 656, 81 S.Ct. 365, 5 L.Ed.2d 358; Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741. However, there was no concerted refusal to deal in this case. Sinclair acted alone. Plaintiff argues that there was a conspiracy or combination between Sinclair and the dealers generally. But, although Sinclair may have sought to impose a tying arrangement on each of its dealers, i. e. to require each of them to buy substantial quantities of Goodyear TBA if he desired to continue selling Sinclair gasoline under a lease and sales agreement, there is no evidence that any of the dealers cooperated with Sinclair in this effort. Sinclair did not attempt to have its other dealers bring pressure on the plaintiff, as was done in Parke, Davis & Co. v. United States, supra, and in a number of cases discussed therein.
In F. T. C. v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307, Beech-Nut had secured the cooperation of its distributors in keeping supplies from price-cutters. The Court had no difficulty inferring from this cooperation the existence of a prohibited agreement. But in line with Colgate, it directed that the Commission's order, which directed Beech-Nut to cease and desist from refusing to sell to distributors who failed to adhere to the resale prices, be modified to prohibit such refusals to sell only when pursuant to "cooperative methods in which the respondent and its distributors, customers and agents undertake to prevent others from obtaining the company's products at less than the prices designated by it." 257 U.S. at 455-456, 42 S.Ct. at 155.
*860 Plaintiff also argues that there was a conspiracy between Sinclair and Goodyear. However, the arrangement between Sinclair and Goodyear was quite unlike the combinations or conspiracies resulting in concerted action which have heretofore been held to create liability for refusal to deal. Cf. Radiant Burners and Klor's, supra. Neither this Court nor the Fourth Circuit found any such conspiracy.
A manufacturer or distributor also loses his right to refuse to deal if such refusal is in furtherance of a monopoly or an attempt to monopolize. Sinclair did not have a monopoly nor attempt to acquire a monopoly of the market for either gasoline or TBA in Maryland, in Reisterstown, or elsewhere. This Court so found at the original trial, and the finding was not disturbed by the Fourth Circuit.
Plaintiff contends that the tying arrangement constituted an attempt to monopolize the market for TBA represented by the Sinclair lessee-dealers, in violation of sec. 2 of the Sherman Act. This contention is not supported by the evidence. The findings of fact set out in the original opinion of this Court, 171 F. Supp. at 38-44, which the Fourth Circuit noted were not contested on appeal, show that although Sinclair's efforts to induce its dealers to carry a substantial quantity of Goodyear TBA if they wished to continue selling Sinclair gasoline, went beyond mere persuasion and salesmanship, in practice most dealers purchased only such TBA as they desired and purchased it from any source they wished. The testimony of plaintiff's own witness showed that most dealers purchased Goodyear TBA because they liked it best, or because of the credit arrangements or other advantages offered them. Very few leases were terminated unilaterally by Sinclair, and those were terminated principally because of the failure of the dealer to sell enough gasoline.[2]
The Fourth Circuit held that there existed between Sinclair and its customers an illegal tying arrangement prohibited by section 1 of the Sherman Act and illegal per se under the Northern Pacific case, but did not hold that it constituted an attempt to monopolize in violation of section 2. The Fourth Circuit further held that there existed "an express agreement with this particular plaintiff to buy Goodyear TBA, made after the cancellation of his first lease, in order for the plaintiff to be restored as a gasoline dealer." 286 F.2d at 839.
For the additional costs which plaintiff sustained as a result of that tying agreement prior to the termination of his dealership and lease, he has been allowed treble damages under A above. But the Fourth Circuit left open the question whether damages arising from the cancelation of the lease and sales agreement are recoverable as damages resulting from the violation of the antitrust laws. 286 F.2d at 840.
If the Fourth Circuit had concluded that the termination had been in furtherance of (a) an attempt to monopolize or a conspiracy to monopolize or other concerted effort or (b) that the termination itself constituted a per se violation or unreasonable restraint of trade, it would not have remanded the case with the instructions set out in the last two paragraphs of the opinion, namely, to determine "whether the damages flowing from the cancellation are recoverable as damages resulting from the violation of the anti-trust laws" and "what items, if any, are recoverable." It would have directed the District Court simply to determine the amount of damages to be awarded. On the other hand, if the Fourth Circuit had concluded that the right of Sinclair "to cancel the lease at its yearly termination date" prevented the allowance of any damages for the termination, the last two paragraphs would have been equally inappropriate, because the only damages recoverable would have been those sustained prior to the termination.
The Fourth Circuit must have concluded that absent an attempt to monopolize *861 or such conspiracy or concerted action as existed in Parke, Davis, in a private action for damages based on a refusal to deal, the Court should consider whether the refusal to deal in this case the termination of the lease and sales agreement was an unreasonable restraint of trade under all the circumstances. See discussion of the general problem in House of Materials, Inc. v. Simplicity Pattern Co., 2 Cir., 298 F.2d 867 at 870, 871.[3]
This conclusion is supported by McElhenney Co. v. Western Auto Supply Company, supra, where Judge Sobeloff said, referring to the prohibition against tie-ins in sec. 3 of the Clayton Act:
"Neither in terms nor inferentially does the statute prohibit a unilateral refusal to sell. Its condemnations are directed against executed transactions of lease, sale or contract containing the forbidden condition, agreement or understanding. Quite correctly the District Court pointed out that a mere refusal by a manufacturer to deal with a retailer who will not confine his dealings to the goods of the manufacturer does not run afoul of the section. The cases are unanimous in this: Nelson Radio & Supply Co. v. Motorola, Inc. 5 Cir., 1952, 200 F.2d 911, certiorari denied 1953, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356; Leo J. Meyberg Co. v. Eureka Williams Corp., 9 Cir., 1954, 215 F.2d 100, certiorari denied 1954, 348 U.S. 875, 75 S.Ct. 113, 99 L.Ed. 689; Brosious v. Pepsi-Cola Co., D.C.M.D. Pa.1945, 59 F.Supp. 429, affirmed 3 Cir., 1946, 155 F.2d 99; Allied Equipment Co. v. Weber Engineered Products, 4 Cir., 1956, 237 F.2d 879." 269 F.2d at 337-338.
Although the tying arrangement may be illegal per se, and give rise to criminal or civil action by the government or to private claims for damages such as those awarded under A above, the termination of a dealership in furtherance of such a plan or arrangement is not per se a violation of the antitrust laws; such a termination will not give rise to a claim for treble damages unless it amounts to an unreasonable restraint of trade.
A manufacturer may announce in advance the circumstances under which he will refuse to sell. The additional factors in the instant case consist of statements by Sinclair that its dealers would have to buy more TBA if they wanted to continue their dealerships (even though these threats were not enforced), the oral agreement to purchase some TBA made by plaintiff at the time of the execution of his second lease in 1948, and the pressure brought on plaintiff to purchase more Goodyear TBA after Sinclair spent $31,000 to remodel and enlarge the service station in 1953. Plaintiff did increase such purchases from about $1,000 or $2,000 a year to about $4,000 a year, but he still bought about ten times that amount from Firestone. It is quite evident, from the testimony at the original trial and the additional evidence offered at the recent hearing on the issue of damages (discussed under C below), that plaintiff was particularly interested in maintaining and building up his large business in Firestone TBA.[4] That business was different in kind as well as much greater in amount than the TBA business done by the ordinary lessee-dealer.
Plaintiff's activity in Firestone TBA had two effects: (1) it was an embarassment to Sinclair in its efforts to persuade *862 its other dealers to carry increasing amounts or percentages of Goodyear TBA, and (2) it consumed a certain amount of plaintiff's time and energy which Sinclair felt should be devoted to the development of the business at the service station.
Sinclair held the station under a lease which required it to pay rent to the owner, and it had spent a substantial sum in 1953 to improve the property. It was entitled to require that its lessee-dealer devote what it considered a satisfactory amount of time to the sale of its products rather than to the building up of an independent business in Firestone TBA.
The Sinclair officials believed that plaintiff was not devoting a sufficient amount of effort to his service station, and that this was reflected in his gasoline gallonage. Although I found that there was no just cause for complaint on that score, the Sinclair officials sincerely believed that plaintiff was not selling as much gasoline at the station as they thought he could and should have sold there after Sinclair had improved and enlarged the station in 1953. Their estimate of the potentiality of the station was too high, as was shown by the failure of the capable dealer who replaced plaintiff to come anywhere near the desired goal, but the estimate was sincerely made. The lease and sales agreement provided that it might be terminated by Sinclair at the end of any fiscal year. I find as a fact that Sinclair probably would have terminated plaintiff's lease and dealership in 1956 or 1957 for that reason, entirely apart from the fact that he was not buying enough Goodyear TBA, although, as I found originally, both reasons affected the actual decision to terminate in 1956 and neither reason predominated.
A producer should be free to discontinue his business relations with individual distributors or dealers who are not doing an effective job of selling, whether this ineffectiveness results from business ineptitude or from the fact that the dealer has diluted his efforts by handling other lines. See United States v. J. I. Case Co., D.Minn., 101 F.Supp. 856, 863. This important right of the producer, necessary to preserve the freedom of choice which is of the essence of competition, must be weighed against the nature and extent of the violation of the antitrust laws involved.
The prohibition against tie-in arrangements is an important provision, but the tie-in arrangement in the instant case did not involve the use of pressures comparable to those applied in the General Motors case,[5] for example, Sinclair did not demand that its dealers carry only Goodyear TBA; the evidence is clear that the dealers carried other TBA items. Sinclair did seek to require that each dealer carry a line of Goodyear TBA products, but did not generally enforce that requirement by cancelations of leases.[6] It is not necessary to decide in this case the effect of a termination made solely in furtherance of a tying arrangement. That purpose was combined with the belief of Sinclair's officials that plaintiff was not selling as much gallonage as they thought he should have sold, and that he was devoting too much effort to his separate retail business in Firestone TBA. Both factors, in the light of all the circumstances, must be considered in deciding whether the termination of the lease and dealer arrangement amounted to a violation of section 1 of the Sherman Act, giving rise to an action for treble damages.
In the light of all the circumstances, I find that the termination of the *863 lease was not an unreasonable restraint of trade, was not a per se violation of the antitrust laws, and does not give rise to a claim for treble damages under those laws.
C
Even if the termination had been such a violation of the antitrust laws as would give rise to an action for damages, the evidence on the issue of damages is highly speculative and unsatisfactory.
Plaintiff made no effort to discuss with any other company the possibility of taking over one of its stations in the Reisterstown area or of becoming a lessee of one of the new stations which have been opened at very good locations in or near Reisterstown during the years since 1956. He wanted the independence of a long term lease and to be free to develop his business as he saw fit. Accordingly, shortly after the termination of his Sinclair lease, he arranged with the owner of a property in Reisterstown which had been leased to the Gulf Oil Company to lease the property to him after the Gulf lease terminated on February 1, 1957.
Plaintiff negotiated the lease with the owner, the lease was made to Shell Oil Co. and Shell leased it to plaintiff for five years, with a five year renewal at half the rent Shell paid the owner. Plaintiff opened a Shell station there on February 12, 1957. Plaintiff wanted this property because it was well located and well designed for his Firestone TBA business, although it was not well located or designed for the sale of gasoline. Although his sales of gasoline there have been less than his sales at his Sinclair station, his average net earnings for the years 1958-1961 have been higher than his average net earnings during the period 1948-1955, while he was at the Sinclair station, even omitting the loss year 1953.
Plaintiff's claim for damages is based upon the assumption, supported only by his personal opinion,[7] that his gasoline sales would have increased at the rate of 10% per year at the Sinclair location, up to a maximum of 35,000 gallons per month. That assumption is contradicted by the experience of plaintiff during the years from 1946 to 1956, and by the experience of the capable dealer who took over the Sinclair station in June 1956. It is true that plaintiff increased his gasoline sales at the rate of about 10% from 1954 to 1955, and during the first five months of 1956, but that was after a very poor year (1953) while the station was being remodeled, and I find as a fact from all of the evidence that such an increase could not reasonably be expected to continue, in view of the deterioration of the Reisterstown business area in competition with new shopping centers a mile or so away, and the location of new service stations adjacent to or convenient to those shopping centers, as well as many new stations on the Reisterstown Road within a few miles of the Reisterstown business area.[8] Plaintiff's yearly increases at his Shell station in Reisterstown were made from a very low base. It would appear that plaintiff had a certain loyal following in the Reisterstown area, but he has never again achieved the gallonage which he sold in 1946, either at the Sinclair station before 1956 or at the Shell station thereafter. Most of the other service stations in the area have not increased their gallonage to any great extent, no doubt because of the continually increasing number of stations.
Moreover, it is impossible to correlate plaintiff's profits with the ups and downs of his gasoline gallonage over the years. Since plaintiff has averaged higher net profits at his present location than he did at his Sinclair station, he is probably wise in emphasizing his Firestone TBA business at the expense of some gasoline *864 gallonage. Plaintiff has not proved any loss for any period extending more than one year after termination of his lease. His damages for that period would approximate $12,000, most of which he would have sustained whenever his lease was terminated. Damages beyond that period would be too speculative for recovery under any legal theory.
D
Since plaintiff won his case in the Court of Appeals, and has proved some damages, however modest, he is entitled also to receive an award for counsel fees. The fee should be a reasonable fee under all the circumstances. In the ordinary case the factors which should be considered in determining a reasonable fee are those set out in Canon 12 of the Canons of Professional Ethics of the American Bar Association, namely:
"In determining the amount of the fee, it is proper to consider: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause; (2) whether the acceptance of employment in the particular case will preclude the lawyer's appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of other employment while employed in the particular case or antagonisms with other clients; (3) the customary charges of the Bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the services; (5) the contingency or the certainty of the compensation; and (6) the character of the employment, whether casual or for an established and constant client. No one of these considerations in itself is controlling. They are mere guides in ascertaining the real value of the service."
See also Cape Code Food Products v. National Cranberry Ass'n, D.Mass., 119 F.Supp. 242; Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 8 Cir., 194 F.2d 846, at 859, cert. den. 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348.
This is an unusual case, for several reasons. The amount recovered is extremely small. But the legal principle established, albeit unwittingly, by counsel for plaintiff, is an important one, and one of the purposes of private treble damage suits is to prevent the necessity of government civil suits or prosecutions to establish and correct violations of the antitrust laws. With these considerations in mind, we turn to the facts.
Through June 1, 1962, including the hearing on remand, John S. McDaniel, Jr., a partner in the firm of Cable and McDaniel, spent 416 hours in connection with the prosecution of this case, Calhoun Bond, an associate until January 1, 1962, and a partner thereafter, spent 376 hours, and other associates 67 hours. McDaniel's regular hourly rates range from $35 to $50 per hour, Bond's from $15 to $20 before January 1, 1962, $25 to $35 thereafter. The rates for other associates range from $12.50 to $17.50. The conduct of the original trial prevented McDaniel's handling other assignments for a period of three weeks. The preparation and presentation of the case was painstaking. On the issue of damages counsel attempted to build an elaborate structure on a very inadequate foundation; defendant should not be required to pay for the time spent thereon.
Taking all factors into consideration, I conclude that counsel fees in the amount of $14,000 should be allowed.
An appropriate judgment order will be entered.
NOTES
[1] 286 F.2d at 840.
[2] See 171 F.Supp. at 43.
[3] Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L. Ed. 534 must be read in the light of United States v. General Motors Corp., 7 Cir., 121 F.2d 376, cert. den. 314 U.S. 618, 62 S.Ct. 105, 86 L.Ed. 497, in which "it was shown that defendant, reaching out to monopolize the business of financing the resale of automobiles of its manufacture, formed a conspiracy unreasonably to interfere with commerce." Miller Motors v. Ford Motor Company, 4 Cir., 252 F.2d 441 at 447.
[4] In Reistertown itself, entirely apart from the Westminster store which was operated by a manager for a corporation then owned by plaintiff.
[5] 121 F.2d 376.
[6] See 171 F.Supp. at pp. 42, 43. It still seems to me that Sinclair has a legitimate business interest in trying to arrange that a motorist on the highways who wishes to buy a particular make of tire, battery or other accessory sold by Goodyear may be sure of finding one at any Sinclair station throughout the country. However, obedient to my understanding of the opinion of the Fourth Circuit, I have not considered this factor in my present decision on any question presented.
[7] Plaintiff's expert witness in effect admitted that he was an expert only in mathematical computations. In any event, I found his testimony without substantial value on any disputed question.
[8] Plaintiff refused to consider an offer which Shell made to him about 1960 to lease a new Shell station at a very desirable location across from a shopping center on the Reisterstown Road a short distance south of Reisterstown. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262762/ | 207 F.Supp. 826 (1962)
Carl L. CAMPBELL, Plaintiff,
v.
Raphael I. NIXON, District Director of Internal Revenue Service, and The United States of America, Defendants.
Civ. A. No. 20268.
United States District Court E. D. Michigan, S. D.
August 16, 1962.
James H. Larva, Columbus, Ohio, and Watts A. Shelly, Dearborn, Mich., for plaintiff.
Robert C. Bruce, Dept. of Justice, Washington, D. C., and Robert F. Ritzenhein, Asst. U. S. Atty., Detroit, Mich., for defendants.
*827 McCREE, District Judge.
This cause was tried to the court on February 8, 1962. Having considered the evidence presented, the stipulations made, and the briefs submitted by counsel, the court makes the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
1. This is an action against the District Director of Internal Revenue Service and the United States of America, in which plaintiff seeks to recover amounts paid on "100 per cent" penalties assessed by the District Director of Toledo, Ohio, under Sections 6671 and 6672 of the Internal Revenue Code of 1954, 26 U.S.C. §§ 6671, 6672, to abate the remaining balance of said assessment, and to perpetually restrain and enjoin defendants from making any seizures, collections, or distraint of any property belonging to plaintiff under liens founded on said assessment. Jurisdiction is asserted under 28 U.S.C. § 1346(a) (1).[1] Defendants have filed a counterclaim seeking judgment against plaintiff in the sum of $43,978.63, being the unpaid balance of the penalty assessments.
2. The penalty assessments resulted from nonpayment of employee withholding and social security taxes by the Flexible Conveyor Co. for the quarter ending June 30, 1956, in the sum of $12,954.13, and for the quarter ending September 30, 1956, in the sum of $38,391.91.
3. Flexible Conveyor Co. was incorporated under the laws of the State of Ohio in April, 1947, with its principal place of business at Sandusky, Ohio. In May, 1947, the corporation acquired the assets of a partnership composed of William P. Leyland and Vaughn C. Salter, in exchange for shares of stock. The original officers of the corporation were William P. Leyland (president), Vaughn C. Salter (vice-president), Lorraine Salter (secretary), and Edith Leyland (treasurer).
4. Plaintiff, Carl L. Campbell, a citizen of the State of Michigan, is a certified public accountant and has been a partner in the public accounting firm of Campbell, Rose & Co. since 1940. The firm maintains offices in Dearborn, Michigan, and Columbus, Mansfield, and Worcester, Ohio.
5. William Leyland became a client of Campbell-Rose in 1943 or 1944. Thereafter, the accounting firm served as independent auditors for Leyland's conveyor manufacturing business.
6. In June, 1949, Vaughn Salter and Lorraine Salter resigned their positions as directors and officers of Flexible Conveyor Co., and at a meeting of the board of directors on May 11, 1950, plaintiff was elected vice-president and his accounting partner, Dale E. Rose, was elected secretary. The Leylands continued in office as president and treasurer.
7. Plaintiff and Dale Rose were each paid $100 per month salary during their tenure as officers of Flexible. The firm of Campbell, Rose & Co. continued to receive separate fees from Flexible for professional services rendered. Plaintiff's salary from Flexible constituted less than ten percent of his income. He is, and has been, a director of eight or nine other companies.
8. Rose remained in office as secretary of Flexible until his resignation on July 31, 1956. Plaintiff formally resigned as vice-president in September, 1956, having indicated his intention to resign as early as April, 1956.
9. In 1956, there were 927 shares of Flexible stock outstanding, of which number William Leyland held 622 shares. Although neither plaintiff nor Dale Rose held stock in his own name, 185 shares were owned by the Aetna Investment *828 Company, a partnership composed of their wives.
10. Neither plaintiff nor Rose was assigned any regular or specific duties as officers of Flexible. Their primary function was to confer with and advise William Leyland with respect to the business affairs and tax matters of Flexible. The duties of vice-president, as stated in the corporation's Code of Regulations adopted in 1947, are as follows:
"The Vice-President shall perform all duties of the President in his absence or during his inability to act, and shall have such other and further powers, and shall perform such other and further duties as may be assigned to him by the Board of Directors."
11. During his association with Flexible, plaintiff continued to be actively engaged in the affairs of his accounting firm, and rarely visited the offices of Flexible. Before October, 1955, plaintiff was in Sandusky no more than two or three times a year. From October, 1955, through April, 1956, he spent considerable time at Flexible's offices, principally to perform accounting services for the company.
12. The affairs of Flexible were managed and directed by its president, William Leyland. When the company began to experience serious financial difficulty in 1955 and 1956, all decisions as to which of the company's creditors would be paid, and in what amounts, were made solely by Leyland. Plaintiff's advice in these matters frequently was rejected.
13. The task of preparing the payroll, billing customers, and posting the ledgers of the company was assigned by Leyland to his private secretary, Mrs. Edith Riley.
14. Flexible maintained a payroll account and a general account at a Sandusky bank. Three persons were authorized to sign checks drawn on these accounts: Leyland, Mrs. Riley, and plaintiff. Two signatures were needed to validate a check. All checks were prepared by Edith Riley solely at Leyland's direction. Plaintiff occasionally countersigned checks but he did not have authority to sign with Mrs. Riley except with Leyland's knowledge and permission. Mrs. Riley accepted instructions only from Leyland. As a matter of course, she drew checks for federal employment taxes after each payroll date, but Leyland often placed these checks in the company safe without signing them. The checking accounts were closed on September 19, 1956.
15. Leyland signed the withholding tax returns for the second and third quarters of 1956 (the period for which plaintiff was assessed). Plaintiff had no part in the preparation of these returns, but was aware of the corporation's delinquency in remitting to the government.
16. The resignation of Dale Rose as secretary of Flexible was the result of his concern over the declining solvency of the corporation and over Leyland's indifference to the company's tax obligations. Plaintiff shared these concerns and feared for the reputation of his accounting firm. As a result of discussions between plaintiff and Rose, plaintiff went to the offices of the Internal Revenue Service at Toledo, in August, 1956, and informed the chief of the collection division of the deteriorating financial condition of Flexible. Plaintiff furnished a list of the company's accounts receivable and urged IRS to take measures to salvage what it could with respect to the unpaid taxes. This information resulted in partial liquidation of the company's tax liability.
17. Ultimately, Flexible Conveyor Co. was placed into involuntary bankruptcy, and $12,453.85 was paid by the trustee in bankruptcy to the Director of Internal Revenue on November 20, 1959.
18. Penalty assessments were made on October 15, 1957, against plaintiff and against William Leyland for the unpaid balance of employee withholding and social security taxes for the second and third quarters of 1956. Leyland proved to be uncollectible and died in Florida leaving an insolvent estate. To date of *829 trial, plaintiff had paid $2,527.84 on the aforesaid assessments. The instant suit followed disallowance of his claims for refund on December 28, 1959.
DISCUSSION
Although plaintiff has not paid the full amount of the penalties assessed against him, the full payment rule of Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), rehearing 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), is no bar here, since the taxes to which the penalties apply are divisible. Steele v. United States, 280 F.2d 89 (8th Cir. 1960); Ruby v. Mayer, 194 F.Supp. 594 (D.N.J.1961). Accordingly, this court has jurisdiction over the instant cause.
The assessments against plaintiff were founded upon Section 6672 of the Internal Revenue Code of 1954, which provides:
"Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. * * *"
Section 6671(b) defines "person" to include
"an officer or employee of a corporation * * * who * * * is under a duty to perform the act in respect of which the violation occurs."
The government contends that plaintiff is such a person, within the meaning of the statute. It relies on the fact that plaintiff was an officer of the corporation and was authorized to co-sign checks drawn on corporate accounts. It further contends that plaintiff willfully failed to collect and pay over the employment taxes, in that he did not arrange for the issuance of a check for these taxes over his signature and that of Mrs. Riley after the president balked at making payment.
The record, however, clearly shows that plaintiff was neither the disbursing officer for the corporation nor did he have the authority to direct the payment of tax obligations out of corporate funds against the wishes of the president. It was the president, and no one else, who had, and at all times exercised, the right to decide which creditors of the company would be paid. One possessed of such authority is regarded as the person who is under the duty to collect, account for, and pay over employment taxes, Bloom v. United States, 272 F.2d 215 (9th Cir. 1959), cert. denied 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146 (1960), except where he delegates the ultimate control of corporate management to others, Wiggins v. United States, 188 F.Supp. 374 (E.D.Tenn.1960); Cushman v. Wood 149 F.Supp. 644 (D. Ariz.1956).[2] The mere holding of corporate office does not ipso facto make for personal liability on the part of the officer. Sperry v. Tomlinson, 1 AFTR2d 1810 (S.D.Fla.1958) (vice-president); Mattox v. United States, 3 AFTR2d 832 (D.Minn.1959) (secretary-treasurer).
If plaintiff had the duty and the means to cause the taxes to be remitted from corporation funds, as the government urges, it is difficult to understand why he solicited the Internal Revenue Service to enforce collection. It is even more difficult to understand plaintiff's conduct when we consider that the third-quarter 1956 taxes were not yet due at the time. If anything, this conduct indicates that plaintiff was himself powerless to cause the taxes to be remitted.
*830 Even if it were possible to view plaintiff as being a person charged with the duty to pay over the employment taxes, it does not appear from this record that his failure so to do was "willful" within the meaning of section 6672. While proof of a tax evasion motive is not necessary to establish willfullness[3], it must be shown that nonpayment resulted from a voluntary and intentional decision (whatever the reason) to apply corporate funds to other obligations or for other purposes. Bloom v. United States, supra; Wiggins v. United States, supra; Nugent v. United States, 136 F. Supp. 875 (N.D.Ill.1955). Where there are no funds at all, nonpayment of taxes is not willful and penalties may not be assessed. Cushman v. Wood, supra; Levy v. United States, 140 F.Supp. 834 (W.D. La.1956).
If plaintiff indeed had disbursing authority, there is nothing to suggest that he applied or directed the application of corporate funds to purposes other than payment of tax liabilities. The fact is that plaintiff could not have issued a valid check for taxes unless Leyland or Mrs. Riley countersigned. Leyland was unwilling to do so, and Mrs. Riley was subject only to Leyland's instructions. If, having the duty to make payment, plaintiff was prevented from discharging it by the actions of other persons in the corporation, he must be relieved of liability. Cumberlander v. United States, 7 AFTR2d 1352 (S.D.Ind.1961).
CONCLUSIONS OF LAW
1. Plaintiff was not a person required to collect, truthfully account for, and pay over employee withholding and social security taxes for Flexible Conveyor Co. for the second and third quarters of 1956, under section 6672 of the Internal Revenue Code of 1954.
2. Even if plaintiff were under such a duty, he did not willfully fail to perform the obligation.
3. The penalties assessed against plaintiff are invalid.
4. Plaintiff is entitled to a refund of the amounts paid by him under protest by reason of the penalty assessments, viz., the sum of $2,527.84, together with interest and costs.
5. Defendants' counterclaim for unpaid penalties should be denied.
A judgment in accordance herewith may be entered.
NOTES
[1] "(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
"(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws * * *."
[2] Cf. Schweitzer v. United States, 193 F.Supp. 309 (D.Neb.1961) and Levy v. United States, 140 F.Supp. 834 (W.D. La.1956), absolving the delegating officer on the basis that his failure to cause payment was not wilful, rather than on the basis that he was not a person responsible for the collection and payment of the taxes.
[3] Except in a criminal prosecution. Wilson v. United States, 250 F.2d 312 (9th Cir.1957). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262788/ | 207 F.Supp. 407 (1962)
The HANOVER SHOE, INC., Plaintiff,
v.
UNITED SHOE MACHINERY CORPORATION, Defendant.
Civ. No. 5395.
United States District Court Middle District Pennsylvania.
August 3, 1962.
*408 Nogi, O'Malley & Harris, Scranton, Pa., Donovan Leisure, Newton & Irvine, New York City, for plaintiff.
Warren, Hill, Henkelman & McMenamin, Scranton, Pa., Davis, Polk, Wardwell, Sunderland & Kiendl, New York City, for defendant.
SHERIDAN, District Judge.
This is a motion by plaintiff for the production and inspection of documents under Rule 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
For many years, defendant, a manufacturer of machinery used in the production of shoes, made available to shoe manufacturers its more important machinery on a "lease only" basis. In 1947, the Government filed a complaint against defendant under § 4 of the Sherman Act, Act of July 2, 1890, c. 647, 26 Stat. 209, 15 U.S.C.A. § 4, to restrain certain alleged monopolistic practices. The defendant was found to have violated the Act. By final decree, dated February 18, 1953, defendant, among other things, was ordered not to offer for lease any machine unless it also offered the machine for sale; and the terms of any lease were to be such that it would not be substantially more advantageous for a user to lease than to buy. United States v. United Shoe Machinery Corp., D.Mass.1953, 110 F.Supp. 295; affirmed 1954, 347 U.S. 521, 74 S.Ct. 699, 98 L. Ed. 910.
The present suit is a private treble damage action filed on September 21, 1955. One of the issues is whether the defendant's leasing policy resulted in injury to plaintiff. Defendant contends plaintiff could have procured comparable machines from other manufacturers, and, therefore, was not compelled to lease from defendant. In January, 1962, defendant furnished plaintiff with a list of these machines. It is identified as Exhibit 8 to the deposition of Lewis B. Walker.
In its motion plaintiff requests that defendant be required to produce (1) any and all reports or memoranda prepared by and for defendant's Program Committee and Research Division during the period July 1, 1939 through September 21, 1955, which refer in any way to the non-United machines listed in plaintiff's Exhibit 8 to the deposition of Lewis B. Walker; (2) a memorandum prepared by a Mr. Ward, a former associate lawyer with the law firm representing defendant, summarizing a meeting in June, 1950, attended by Lawrence P. Sheppard, President of plaintiff, Mr. Walker of defendant, and Messrs. Ward and Kiendl, defendant's counsel.[1]
REPORTS PREPARED BY DEFENDANT'S PROGRAM COMMITTEE
The defendant has followed the practice of having its branch personnel and roadmen throughout the United States report on the installation and removal of *409 non-United machines in the plants of shoe manufacturers. These reports were made on a weekly basis on a form labelled, "Outside Machine Report" (O.M.R.).
The O.M.R.'s recorded the machine's date, serial number and title, the user, the manufacturer of the machine, the company installing it, the terms, the shoe upon which it was used, its function, and any other information available to the roadman. They were forwarded to defendant's Program Committee and Research Division. The information on the O.M.R.'s was supplemented by information and data available to defendant from other sources. The Program Committee and Research Division prepared reports or memoranda which evalulated all the information and data, including the O.M.R.'s. Plaintiff requests copies of these reports.
Defendant points to the burdensome task in locating these reports in view of the broad wording of the request and the period of time covered by it. Defendant argues that good cause has not been shown because there has been no showing that the reports contain information with respect to the machines listed in the exhibit, and that plaintiff has already had inspection of all the O.M.R.'s which form the basis for the reports.
Defendant admits that it prepared such reports. It has agreed to furnish plaintiff those reports which were included as exhibits in the Government's case against defendant. Defendant has not denied that these reports may contain comments on non-United machinery.
Since one of the defenses is that non-United machinery was available to plaintiff, defendant's evaluation of this machinery is relevant and material. The O.M.R.'s do not contain the information the plaintiff seeks. If it is reasonably probable that documents will be material at the trial, their production and inspection should be allowed. Jacobs et al. v. Kennedy Van Saun Mfg. & Eng. Corp., M.D.Pa.1952, 12 F.R.D. 523.
A party seeking discovery is not required to prove that documents contain material evidence, but it is sufficient if it is reasonably probable that they do. Radio Corporation of America v. Rauland Corporation, N.D.Ill.E.D.1955, 18 F.R.D. 440; Jacobs et al. v. Kennedy Van Saun Mfg. & Eng. Corp., supra. Documents should be produced under F. R.Civ.P. Rule 34, 28 U.S.C.A. if they are necessary to enable a party to prepare his case, or facilitate proof at the trial or progress of the trial even though there will be an inconvenience or a burden to the party producing them. 4 Moore, Federal Practice, par. 34.19 [2], at 2476; Frasier v. Twentieth Century-Fox Film Corp. et al., D.Neb. Lincoln Division 1954, 119 F.Supp. 495.
WARD MEMORANDUM
In June, 1950, as part of the preparation of the defense of the Government's case against United, there was a meeting at which the following were present: Mr. Ward and Mr. Kiendl of the law firm representing defendant, Mr. Walker of United (defendant), and Mr. Sheppard, President of Hanover (plaintiff). The purpose of the meeting was to interview Mr. Sheppard. Mr. Ward prepared a memorandum summarizing the discussions in that meeting.
In the deposition of Mr. Sheppard taken in this action, defendant questioned him concerning the 1950 meeting. Mr. Sheppard testified that, except for the fact of the meeting, he had no recollection of the discussions. He was unable to recollect certain statements attributed to him in the Ward memorandum.
Defendant asserts that the memorandum forms part of the lawyer's work product prepared in connection with the Government's case against defendant, and since plaintiff's claim is based on the adverse findings against defendant in that action, the memorandum forms a part of the lawyer's work product in this action and is not the subject of discovery under Rule 34. Defendant argues that it should not be deprived of the trial advantage it will have if the Ward memorandum is not made available to plaintiff prior to trial.
*410 The cases of Hickman v. Taylor, 1947, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 and Schwabe v. United Shoe Machinery Corp., E.D.N.Y.1960, 26 F.R.D. 228, cited by the defendant in support of its work product argument are not controlling.
There is nothing in the Hickman case which extends the work product principle to preclude discovery of a lawyer's memorandum, prepared during a prior case, in a subsequent action between different parties.
In Tobacco and Allied Stocks, Inc., et al. v. Transamenia Corporation, D. Del.1954, 16 F.R.D. 534, the court stated:
"It appears all of the correspondence now before the Court was a part of the files dealing with the Geller case and used in the preparation of that case for presentation to this Court. In no sense can these letters all written in 1943 and more that 8½ years prior to the institution of the case at bar be a part of plaintiffs' attorneys' `work-product' in the presentation of the instant case for presentation to this Court. Defendant, here, seeks not to obtain benefit of the present plaintiffs' counsels' industry in the preparation of the case at bar for trial."
Even if the Ward memorandum qualifies as work product, discovery should not be denied if adequate reason appears. Alltmont v. United States, 3 Cir.1950, 177 F.2d 971, 976.
In the Hickman case the Supreme Court said:
"* * * He has sought discovery as of right of oral and written statements of witnesses whose identity is well known and whose availability to petitioner appears unimpaired. He has sought production of these matters after making the most searching inquiries of his opponents as to the circumstances surrounding the fatal accident, which inquiries were sworn to have been answered to the best of their information and belief. Interrogatories were directed toward all the events prior to, during and subsequent to the sinking of the tug. Full and honest answers to such broad inquiries would necessarily have included all pertinent information gleaned by Fortenbaugh through his interviews with the witnesses. Petitioner makes no suggestion, and we cannot assume, that the tug owners or Fortenbaugh were incomplete or dishonest in the framing of their answers. In addition, petitioner was free to examine the public testimony of the witnesses taken before the United States Steamboat Inspectors. We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner's case or cause him any hardship or injustice. For aught that appears, the essence of what petitioner seeks either has been revealed to him already through the interrogatories or is readily available to him direct from the witnesses for the asking. * * *
"* * * Here is simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties. * * *
"* * * We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. * * * But the general policy against invading the privacy of an attorney's course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who *411 would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. * * *
"* * * No attempt was made to establish any reason why Fortenbaugh should be forced to produce the written statements. There was only a naked general demand for these materials as of right and a finding by the District Court that no recognizable privilege was involved. That was insufficient to justify discovery under these circumstances * * *."
Mr. Sheppard was not represented by counsel at the meeting in 1950. He does not recall the details of the meeting, or his remarks or their context. The contents of the memorandum cannot be learned from anyone but defendant. Defendant desires to confront Sheppard at the trial with the contents of the memorandum.
With a similar question before it in Sharon Steel Corp. v. Travelers Indemnity Co., N.D. Ohio E.D.1960, 26 F.R.D. 113, at 115, the court stated:
"* * * But whatever the reason for this omission, the result was an opportunity for defendant's attorneys to gain information concerning a possible defense, without giving plaintiff's president a chance to understand the legal ramifications of his statements, or an opportunity to further explain his statements with regard to the particular contract involved. It is precisely this point that concerns plaintiff in this motion. Did Tredwell actually make these apparently damaging remarks without further explanation, or were the questions asked at the deposition of Tredwell taken out of context from Tredwell's general discussion at these meetings? Plaintiff cannot wait until trial to so discover, for conflicts in his story could be severely damaging in a case tried before a jury. The Federal Rules were established to take the guesswork out of trials, not to add to it.
"Although defendant claims that good cause cannot be shown in this case because Tredwell is available for questioning by plaintiff, we have the affidavit of plaintiff's counsel that Tredwell, though retaining some present recollection of the subjects discussed at the meetings, does not now recollect his exact remarks or the precise context in which they were made. Since his testimony will undoubtedly be of great importance on trial, it is natural for plaintiff to desire that Tredwell recollect as much of the meetings as is possible.
"Under these prevailing circumstances, we fully subscribe to Judge Freed's remark in Hayman v. Pullman Co., D.C.N.D.Ohio 1948, 8 F.R.D. 238, 239, that `the only reason that may be assigned for refusing to do it is to make the element of surprise available to the defendant. The ultimate aim of * * * a lawsuit is that it be a search for the truth.' If Tredwell did clarify or explain his remarks, plaintiff is entitled to know, for any hiding of the truth would work a serious disservice to this Court. If he did not so explain or clarify, the requested documents can be of little help to plaintiff. * * *"
See also 4 Moore, Federal Practice, par. 26.23[8], at 1147-1149 and par. 34.08, at 2452-2455 (2d ed.).
In Schwabe, Inc. v. United Shoe Machinery Corporation, supra, relied on by defendant, the court held that similar memoranda were transactions between attorney and client and hence privileged, citing Hickman v. Taylor. Undoubtedly, the court used privilege in the sense that work product is privileged against discovery unless good cause is shown. This must be so since the Supreme Court in Hickman v. Taylor said:
"We also agree that the memoranda, statements and mental impressions in issue in this case fall outside *412 the scope of the attorney-client privilege and hence are not protected from discovery on that basis."
Since the opinion in the Schwabe case states no other reason for the denial of discovery, the court must have found that good cause was not shown.
There is good cause to compel production of the documents sought.
Plaintiff's motion will be granted.
NOTES
[1] A third request to inspect the memoandum prepared by Mr. Ryan of defendant's Patent Department was withdrawn after certain stipulations were made during oral argument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262845/ | 84 Cal.Rptr.2d 175 (1999)
71 Cal.App.4th 948
TURLOCK IRRIGATION DISTRICT, Plaintiff and Appellant,
v.
Barbara A. HETRICK, as Secretary, etc., Defendant and Respondent;
Pacific Gas and Electric Company, Intervener and Respondent.
No. F027535.
Court of Appeal, Fifth District.
April 28, 1999.
Orrick, Herrington & Sutcliffe, W. Douglas Kari, Los Angeles, Brett L. Healy; Griffith, Masuda & Godwin, Roger K. Masuda and Matthew L. Emrick, Turlock, for Plaintiff and Appellant.
Triebsch, Frampton, Dorius & Lima and J. Scott Dorius, Turlock, for Defendant and Respondent.
Iathan T. Annand; Jack F. Fallin; and Stephen L. Garber, San Francisco, for Intervener and Respondent.
OPINION
BUCKLEY, J.
FACTS
Appellant Turlock Irrigation District (TID) is an irrigation district formed and existing under Water Code sections 20500 et seq. TID provides water and electricity to municipal, industrial, commercial and residential customers within Merced, Stanislaus and Tuolumne Counties.
*176 Intervener Pacific Gas and Electric Company (PG & E) is a public utility which provides natural gas to customers in TID's service area. PG & E offers a Gas Aggregation Program permitting "core transport agents" to "aggregate" their customers' natural gas requirements and then purchase the gas and associated gas transportation services for those customers.
On August 27, 1996, TID's board of directors unanimously passed Resolution No. 96-88, which authorized TID to provide natural gas service to its customers, approved a core gas transportation contract with PG & E and directed the secretary to execute a gas supply contract with Purina Mills, Inc. Purina is one of TID's existing electric customers.
Respondent Barbara A. Hetrick, secretary of the board of directors of TID, refused to execute the gas supply contract based on her opinion that it was uncertain whether TID was empowered to provide natural gas service.
Thereafter, on September 18, 1996, TID filed a petition for writ of mandate, seeking a finding that TID has legal authority to provide natural gas service and commanding the secretary to execute the gas supply contract.
On November 4, 1996, PG & E filed a complaint in intervention.
The petition was heard and denied on November 18, 1996. The superior court concluded that TID "does not have the authority to sell gas for a purpose wholly unrelated to irrigation."
DISCUSSION
Is TID empowered under the Public Utilities Code or the California Constitution to provide natural gas service to its customers?[1] In a word: no.
TID argues that it is a municipal corporation. It then cites Division 5 of the Public Utilities Code which grants to municipal corporations the right to "acquire, construct, own, operate, or lease any public utility." (Pub.Util.Code, § 10002.) TID then argues syllogistically that it has the authority to provide natural gas services to its customers. PG & E argues that TID is a public corporation which is inferior to a municipal corporation and possesses more limited powers. As will be explained below, regardless of whether TID is characterized as a municipal or a public corporation, it is also an irrigation district. Legislative enactments governing the powers and purposes of irrigation districts specifically limit such an entity to provision of water and electricity, drainage and to engaging in closely related activities such as operation of cement plants and rock quarries. (Wat.Code, §§ 22075, 22095, 22115; Gov.Code, § 55500.) As specific provisions relating to a particular subject take priority over a general statute covering the same subject (Merandette v. City and County of San Francisco (1979) 88 Cal. App.3d 105, 113, 151 Cal.Rptr. 580), the specific statutes limiting the powers and purposes of irrigation districts take priority over the general provisions applicable to all municipal corporations. Provision of natural gas exceeds the scope of power granted to irrigation districts. Therefore, any act taken in furtherance of this unauthorized activity, such as execution of the contested gas supply, would be ultra vires. (Cf. Allen v. Hussey (1950) 101 Cal.App.2d 457, 472, 225 P.2d 674.)
We begin with a brief overview of statutory enactments enabling and regulating irrigation districts. In 1887, the California Legislature enacted the Wright Act, which gave irrigation districts the power to construct and maintain irrigation and drainage systems. The Wright-Bridgeford Act was passed 10 years later. The principal purpose of this legislation "was to put water to agricultural use. Powers were adequate for securing a water supply and furnishing it to included lands." (Henley, The Evolution of Forms of Water Users Organizations in California (1957) 45 Cal.L.Rev. 665, 668; Harding, Background of California Water and Power Problems (1950) 38 Cal.L.Rev. 547, *177 555.) In 1919, the Wright-Bridgeford Act was amended to permit irrigation districts to engage in the generation, distribution and sale of electricity. (Stats.1919, ch. 370, § 1, p. 778.) In 1943, a new set of enabling statutes known as the Irrigation District Law, codified at Water Code section 20500 et. seq., was enacted. This legislation granted irrigation districts authority to "do any act necessary to furnish sufficient water in the district for any beneficial use." (Wat.Code, § 22075.) In 1949, irrigation districts were granted power to acquire rock quarries and other projects for the preparation of sand and cement. (Gov.Code, § 55500.) These statutes remain in force today.
A municipal corporation is a type of public corporation. "Any municipal corporation may acquire, construct, own, operate, or lease any public utility." (Pub.Util.Code, § 10002.) `"Public utility' as used in this article, means the supply of a municipal corporation alone or together with its inhabitants, or any portion thereof, with water, light, heat, power, sewage Collection, treatment, or disposal for sanitary or drainage purposes, transportation of persons or property, means of communication, or means of promoting the public convenience." (Pub. Util.Code, § 10001.) A municipal corporation may also "establish, purchase, and operate public works to furnish its inhabitants with light, water, power, heat, transportation, or means of communication." (Cal. Const., art. XI, § 9.)
Defining the exact legal nature of districts such as TID is problematic. "What is a `municipal corporation,' as that term is used in particular provisions of the constitution or in a statute, is often difficult to determine and there is considerable conflict in the decisions. No general rule can, be stated." (1 McQuillin, Municipal Corporations (3d ed.1987) § 2.27, p. 188.) "A `district' has been variously characterized by the courts as a `public corporation,' `municipal corporation,' `quasi-municipal public corporation,' `state agency,' `public agency,' `agency or auxiliary of the state,' `public corporation for municipal purposes,' `quasi-municipal corporation,' and other equally unenlightening descriptions. A glance at the leading municipal text convinces one of the hopelessness of confining `districts,' `public corporations,' or `municipal corporations' within the neat box of a definition." (Hamilton, "Districts"What Are They? (1967) 42 State Bar J. 119, fns. omitted.) These "instrumentalities of local government... defy simple definition or easy classification." (Ibid.) Irrigation districts are sometimes referred to as municipal corporations, but it seems that they are not municipal corporations in the strict or proper sense of that term as it is usually understood, though they are public corporations for municipal purposes. (Whiteman v. Irrigation District (1922) 60 Cal.App. 234, 237, 212 P. 706.) They have also been public agencies in the nature of municipal corporations. (Water Users etc. Assn. v. Railroad Com. (1922) 188 Cal. 437, 443, 205 P. 682, overruled on other grounds by Los Angeles Met. Transit Authority v. Public Util. Com. (1963) 59 Cal.2d 863, 31 Cal.Rptr. 463, 382 P.2d 583.) And authorities dealing with municipal corporations have been cited and applied in an irrigation district case on the ground that the similarity between the two is so close that the same general principles should be applicable. (La Mesa etc. Irr. Dist. v. Halley (1925) 197 Cal. 50, 60-61, 239 P. 719.) "An irrigation district has been held to be a municipal corporation within the meaning of some provisions of the state constitution or statutes, but not within another provision." (1 McQuillin, Municipal Corporations, supra, § 2.27a, p. 190, fns. omitted.)[2]
However, regardless of the specific legal nature of an irrigation district, it is universally recognized that an irrigation district has only those powers granted to it under the enabling legislation. Government Code section 56037 states that an irrigation district is a "district of limited powers." As early as 1902 it was recognized that "[a]n *178 irrigation district is a public body, and under the Wright law has only such powers as are given to it by that act. Such powers are enumerated in the act." (Stimson v. Alessandro Irr. Dist. (1902) 135 Cal. 389, 392, 67 P. 496.) Later, in Moody v. Provident Irr. Dist. (1938) 12 Cal.2d 389 at page 394, 85 P.2d 128, the high court declared it to be "`settled law that an irrigation district ... has such powers, and is subject to. such liabilities as are expressly provided by statute.'" And in Allen v. Hussey, supra, 101 Cal. App.2d at page 472, 225 P.2d 674, it was reiterated that an irrigation district "has only such powers as are given to it by the Legislature." The only implied powers a district of limited powers possesses "are those essential to the limited, declared powers provided by its enabling act." (Water Quality Assn. v. County of Santa Barbara (1996) 44 Cal. App.4th 732, 746,52 Cal.Rptr.2d 184.)
As explained, ante, irrigation districts are statutorily limited to provision of water, drainage, and electricity and to operation of ancillary facilities such as rock quarries. Assuming for purposes of this analysis only that TID is a municipal corporation, then the general provisions which permit such an entity to engage in a broad array of enterprises collide with those statutes specifically enumerating the activities of irrigation districts and declaring that an irrigation district is a district of limited powers.
As we noted previously, it is a fundamental tenet of statutory construction that when such a conflict appears, the more specific provisions control. "Unless repealed expressly or by necessary implication, a special statute dealing with a particular subject constitutes an exception so as to control and take precedence over a conflicting general statute on the same subject. [Citations.] This is the case regardless of whether the special provision is enacted before or after the general one [citation], and notwithstanding that the general provision, standing alone, would be broad enough to include the subject to which the more particular one relates." (Conservatorship of Ivey (1986) 186 Cal.App.3d 1559, 1565, 231 Cal.Rptr. 376; People v. Tanner (1979) 24 Cal.3d 514, 521, 156 Cal.Rptr. 450, 596 P.2d 328.) Thus, those provisions specifically addressing the powers and purposes of irrigation districts control over the more general provisions relating to all municipal corporations.
We also reject TID's assertion that if it is a municipal corporation, it is one for all purposes, including determining the scope of its powers. Although an irrigation district has been declared to be akin to a municipal corporation for taxation and liability purposes (State of California v. Marin Mun. W. Dist. (1941) 17 Cal.2d 699, 111 P.2d 651; Rock Creek etc. Dist. v. County of Calaveras (1946) 29 Cal.2d 7, 172 P.2d 863), California courts have not concluded a district possesses the full scope of powers municipalities enjoy. On the contrary, such an outcome has been rejected.[3]
In Crawford v. Imperial Irrigation Dist. (1927) 200 Cal. 318 at page 326, 253 P. 726, the high court wrote that it was not necessary to determine the strict legal status of an irrigation district because, regardless of whether it is a municipal corporation, the powers granted to it are derived from its enabling statute and "are as different from those exercised by a strictly municipal corporation as the purposes of an irrigation district differ from those of a city or county or other strictly municipal corporation."
More recently, in Trimont Land Co. v. Truckee Sanitary Dist. (1983) 145 Cal.App.3d 330, 193 Cal.Rptr. 568, the Court of Appeal concluded that even though the tort liability of a sanitary district has been held to be analogous to the rules applicable to a municipal corporation, "for purposes of ascertaining the scope of powers properly exercised by a sanitary district," it should be characterized as a public, not a municipal, corporation. (Id. at p. 343, 193 Cal.Rptr. 568.)
Finally, in Water Quality Assn. v. County of Santa Barbara, supra, 44 Cal.App.4th at *179 pages 746 to 747, 52 Cal.Rptr.2d 184, it was determined that a sanitation district possessed the authority necessary to adopt ordinances in furtherance of the limited and specified purposes and powers provided by its enabling statute. However, an ordinance in excess of the specific powers delegated to the district was found to be invalid. The court wrote, "`"[T]he rule is well established that language purporting to define the powers of a municipal corporation is to be strictly construed, and ... the power is denied where there is any fair, reasonable doubt concerning the existence of the power."'" (Id. at p. 746, 52 Cal.Rptr.2d 184.)
For these reasons, we conclude that regardless whether TID is characterized as a municipal corporation or a public corporation for municipal purposes, provision of gas service exceeds the scope of its powers. The secretary properly refused to execute the gas supply contract.
DISPOSITION
The judgment denying the petition for writ of mandate is affirmed. Costs are awarded to respondent Hetrick.
DIBIASO, Acting P.J., and LEVY, J., concur.
NOTES
[1] This is a purely legal question which is reviewed de novo based upon the undisputed facts. (Sutco Construction Co. v. Modesto High School Dist. (1989) 208 Cal.App.3d 1220, 1228, 256 Cal. Rptr. 671.)
[2] Not surprisingly, the parties each rely on those authorities which support their characterization of TID and discount or ignore cases which reach a different conclusion. Since we do not have the luxury of such selective analysis, it is fortuitous indeed that the question before us can be resolved without weighing in on either side of this monumental debate.
[3] Taking TID's argument to its logical (illogical?) extreme, as a municipal corporation, there would be no end to the authority given an irrigation district. An irrigation district could build and operate a baseball stadium or a zoo or a theatre of performing arts. The possibilities are endlessand serve to illustrate the weakness of TID's position. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262857/ | 84 Cal.Rptr.2d 505 (1999)
71 Cal.App.4th 1530
In re BRANDON C. et al., Persons Coming Under the Juvenile Court Law.
Los Angeles County Department of Children and Family Services, Plaintiff and Appellant,
v.
Roberta B. et al., Defendants and Respondents.
No. B124552.
Court of Appeal, Second District, Division Four.
April 30, 1999.
Rehearing Denied May 25, 1999.
Lloyd W. Pellman, County Counsel, Lois D. Timnick, Monterey Park, and Stephanie Jo Farrell, Auxiliary Legal Services, Inc., for Plaintiff and Appellant.
William M. Roth, under appointment by the Court of Appeal, for Defendant and Respondent Roberta B.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Respondent Steven C.
EPSTEIN, Acting P.J.
In this appeal, the Department of Children and Family Services (DCFS) challenges the *506 juvenile court order selecting guardianship as the permanent plan for Brandon and Rangey C. We find substantial evidence to support the order and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Brandon and Rangey C, twin boys born June 14, 1994, were detained in October 1994 after DCFS learned that they had been victims of domestic violence. They were placed in the home of their paternal grandmother, Mary S., in December 1994, and have been in her care since that time. The boys were declared dependent children pursuant to Welfare and Institutions Code section 300[1] in February 1995, based on sustained allegations that Rangey had suffered injuries while in his parents' care, and that their mother had a history of substance abuse.
Reunification services were ordered and provided, but as of May 28, 1996, the date of the section 366.22 hearing, neither parent had completed the court-ordered treatment. The court found reasonable reunification services had been offered, but that returning the boys to their parents' care would create a substantial risk of detriment to them. Reunification services were terminated and the matter set for a selection and implementation hearing pursuant to section 366.26.
In May 1997, DCFS informed the court that it was not in a hurry to hold the section 366.26 hearing because the mother had been talking with the social worker and appeared to be making progress. The matter was continued to September 1997, then put over several more times because DCFS had not obtained a medical report regarding the health of the paternal grandmother, who was the prospective adoptive parent.
In January 1998, mother filed a section 388 petition requesting that the boys be returned to her care. The court denied a section 388 hearing because the petition was not verified.
After a series of continuances, the section 366.26 hearing finally was held on June 2, 1998. DCFS recommended adoption as the permanent plan, and identified the paternal grandmother as the prospective adoptive parent. Mother objected to that plan, arguing that the grandmother was 69 years of age and had medical problems.
The paternal grandmother testified that she had angina and high blood pressure, which was controlled with medication. She also took thyroid medication. She preferred to adopt the boys, but was willing to be their legal guardian, if that is what the court ordered. The grandmother testified that mother had visited the boys regularly throughout the years, that the children look forward to the mother's visit, have a good relationship with mother, refer to her as "Mommy," and seem to love her. The grandmother did not think it would be in the boys' best interest to terminate their relationship with the mother and father, explaining that "they still have a good relationship with their parents, and I think that should continue."
Mother testified that she had visited the boys every week for the past three years, except when she was out of state. The boys are happy and affectionate to her when she visits, and she feels she has a close bond with them.
Father joined in mother's opposition to adoption. Counsel for the children submitted on the DCFS report recommending adoption.
The court found, pursuant to section 366.26, subdivision (c)(1)(A), that it would be in the children's best interest "to maintain the relationship between the minors and their mother. Perhaps the minors and their father as well, but certainly as to the minors and the mother, [¶] The court finds that the mother has ... maintained regular visitation. Perhaps father has maintained regular visitation as well. Although I'm more considering mother and that the minors would benefit from continuing their relationship with their mother." The court ordered legal guardianship for Brandon and Rangey. The paternal grandmother has since been appointed guardian of the children. DCFS appeals from this order.
*507 DISCUSSION
Appellant claims the evidence is insufficient to support the court's finding that termination of parental rights would be detrimental to the children. We do not agree.
At the selection and implementation hearing held pursuant to section 366.26, the court must choose a permanent plan for the dependent child. The court may terminate parental rights and order adoption; identify adoption as the permanent goal and order efforts made to locate an adoptive family within 90 days without terminating parental rights; order legal guardianship without terminating parental rights; or order long-term foster care without terminating parental rights. (§ 366.26, subd. (b).)
Under subdivision (c)(1),[2] "[t]he court shall terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted...." If the court finds the child adoptable, it must terminate parental rights unless it finds that termination would be detrimental to the child due to one of four circumstances. The one pertinent to our case is section 366.26, subdivision (c)(1)(A): "The parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship."
The statute does not define the type of parent-child relationship which will trigger the application of this exception. The court in In re Autumn H. (1994) 27 Cal.App.4th 567, 32 Cal.Rptr.2d 535 interpreted the exception to mean that "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575, 32 Cal.Rptr.2d 535.)
Courts have required more than just "frequent and loving contact" to establish the requisite benefit for this exception. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419, 35 Cal.Rptr.2d 162.) "Interaction between natural parent and child will always confer some incidental benefit to the child.... The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at p. 575, 32 Cal. Rptr.2d 535.)
The court made that finding in our case, and we find substantial evidence to support that determination. As of May 1996, visitation for both parents was limited to three hours, twice each week, to be monitored by the paternal grandmother. The visits took place separately, so that mother and father, who were no longer together, did not see each other. The September 1996 report showed consistent visitation by both parents, to the extent permitted by the order. According to the paternal grandmother, "the parents usually talk to and play with the children during the visitations. They also help in feeding them and caring for them, by changing diapers, picking up toys, and keeping them safe." Rangey, the better developed of the twins, "seems to understand the concept of `momma' and `daddy' and likes to be with them." The child tended to cry for long periods and would resist going to bed after visitations with mother.
As of February 1997, the boys had been transferred to the adoptions division for adoptive planning. The DCFS progress report dated February 6, 1997 recommended that "the time has come to locate an adoptive family and begin to disengage these minors *508 from their parents. As a result, visitation between the parents and the minors should be limited to monitored visits, not to exceed one hour per month." Despite the recommendation, the previous visitation order remained in effect.
The report for the May 1997 hearing noted that the parents "have maintained regular contact, through weekly monitored visits on different days of the week with the children." DCFS again recommended limiting visitation to one hour per month, but the court continued the prior visitation order in effect. It was at this May 1997 hearing that the social worker informed the court that mother "has been talking with me and she said there's some things she is trying to do to get her life together. It may make a difference." In light of this, the court continued the section 366.26 hearing to September 1997.
The report for the September 1997 hearing indicated that both parents had maintained regular contact with the children. Mother's visitation was described as "sporadic" in that she had "failed to have these visitations as scheduled, and usually calls to reschedule them to a different day, different time, and/or to cancel." Once again, DCFS recommended limiting visitation to one hour per month. At the hearing, the court ordered the social worker to meet with mother to work out a visitation schedule, but made no other change in the visitation order. Father agreed to the recommendation of adoption.
The December 1997 report indicated that mother had remained in contact with the social worker on a weekly basis since the September hearing, and had visited the children almost weekly since that date. Mother was participating in her drug rehabilitation program, maintained a stable residence for the prior six months, and had been employed as a receptionist for a law office since May 1997. Despite mother's progress, DCFS recommended termination of parental rights, and again asked that visitation be limited to one hour per month. The matter was continued, with no change in the visitation order.
The March 1998 report showed that mother had visited the children weekly since the September 1997 hearing, that she had completed her drug rehabilitation program, that her random drug tests had been negative, and that her housing and employment had been stable for many months. The recommendations remained the same: termination of parental rights, and limitation of visits to one hour per month. The matter was continued, with no change in the visitation order.
The first comment in over two years on the quality of mother's interaction with the children, rather than just the frequency of her visits, was in mother's section 388 petition seeking a 60-day visit with her sons. Attachment 4 to the June 1, 1998 petition states: "Mother, Roberta B[.], has made substantial progress in her treatment programs and has a suitable residence for the children. Moreover, mother visits the children on a weekly basis and a close bond exists between mother and children."
The DCFS report for the June 2, 1998 hearing once again contains no description of the quality of mother's interaction with the children, stating only that "Mother visits with minors every week for 2 hours except when she was out of town for family business the weekend of April 3-4, 1998." The social worker stated: "CSW is of the opinion that continued contact/visitation between Rangey C[.] and Brandon C[.] and their biological parents is unnecessary, confusing to the boys, contrary to the concept of adoption and therefore not in the boys' best interests. Thus, CSW is of the opinion that all visitation between the children and their biological parents should be terminated forthwith." The DCFS recommendation in the report was that all visits between the children and the biological parents be terminated forthwith.
At the section 366.26 hearing, finally conducted on June 2, 1998, the paternal grandmother was questioned about mother's visits with the children. The grandmother testified that mother had been "pretty regular" in her visits with the boys throughout the years, visiting once a week for approximately two hours. Mother indicated she would like to visit them more often, but the social worker had told the grandmother that the court order was for once a week. The children look forward to the mother's visit, they have a good relationship with mother and seem to *509 love her. They refer to mother as "Mommy."
Asked if she thought it would be in the boys' best interest to terminate their relationship with the mother, the grandmother responded, "Like I said before, I said complete cut off, I don't think, no, because they still have a good relationship with their parents, and I think that should continue." The grandmother was asked how the boys would be affected if she became the boys' adopted mother, and legally the mother became a stranger to them. She replied, "I really don't think she could ever become a stranger to them because they've been close, and they know Robin and Robin and Mommy." She expected the children would continue to refer to the mother as "Mommy" and "this would not bother" her.
Asked about her preference between adoption and guardianship, the grandmother explained that she initially thought she was too old to adopt the children, but she was told that she was not. She stated she would prefer adoption. "I can't tell you exactly why. I just would. I feel the boys are mine even though I know they are only my grandchildren, but I will go along with what the court says. If they want me to have guardianship, that will be fine with me even though I prefer legal adoption."
Mother testified that she had faithfully visited the boys every week for the past three years, except when she was out of state. When mother visits them, they are happy, give her hugs and kisses, and say "mommy, mommy." She feels there is a close bond between her and the boys. She has a cordial relationship with the paternal grandmother, but is afraid that if they are adopted, she will only be able to see them once in a while, at the paternal grandmother's convenience. She has wanted to see the children more often, or wanted the visits to last longer, but the grandmother has "pretty much" told her that she had to leave at a certain time and could not extend the visits.
It is undisputed that mother visited the boys consistently for the entire lengthy period of this dependency case, to the extent permitted by the court's orders. The trial court obviously credited the testimony from both mother and grandmother that there was a close bond between the mother and the boys, and that a continuation of contact would be beneficial to the children. DCFS did not present any evidence to the contrary. What it presented, in two years of reports, was a continuing recommendation to limit mother's visitation, without any consideration of the benefits those visits might have for the children. Substantial evidence supports the trial court's conclusion that mother had maintained regular visitation and that the children would benefit from continuing the relationship.
We reject DCFS's argument that the court's order was unsupported because mother did not present evidence that "during her weekly monitored visits with the children she regularly provided the children with comfort, nourishment or physical care." The benefit of continued contact between mother and children must be considered in the context of the very limited visitation mother was permitted to have. In this case, mother was not the boys' primary caretaker, and a quantitative measurement of the specific amount of "comfort, nourishment or physical care" she provided during her weekly visits is not necessary. Moreover, it is DCFS which failed to provide information to the court about the quality of the visits during the years preceding the section 366.26 hearing. Its reports consistently described the regularity of the visits, with no evaluation of their success. Under the circumstances of this case, we find the evidence of benefit sufficient to support the court's decision to order guardianship.
We are not troubled by the court's reference to mother being able to provide a "safety valve in the future, if need be." The court's attention was first focused, properly, on the existence of a relationship between parent and children, and the benefit to the children from continuing that relationship. The fact that the court also felt a good relationship between mother and children could provide additional security for the children, "if need be," does not undermine the evidentiary support for the court's finding under section 366.26, subdivision (c)(1)(A).
*510 DISPOSITION
The order is affirmed.
HASTINGS, J., and CURRY, J., concur.
NOTES
[1] All statutory references are to this code unless otherwise noted.
[2] We quote this section as in effect at the time of the hearing. It was amended, operative January 1, 1999. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2423295/ | 10 A.3d 1180 (2011)
417 Md. 500
DUMBARTON IMP. ASS'N, INC.
v.
DRUID RIDGE CEMETERY CO.
Pet. Docket No. 466.
Court of Appeals of Maryland.
Granted January 21, 2011.
Petition for writ of certiorari granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276662/ | 758 A.2d 40 (2000)
Elena M. PAUL, Appellant,
The George Washington University, Appellant,
v.
Charles J. BIER, Appellee.
Nos. 96-CV-1495, 97-CV-50.
District of Columbia Court of Appeals.
Argued October 15, 1998.
Decided August 24, 2000.
*41 Patrick M. Regan, with whom Jonathan E. Halperin and Victor E. Long were on the brief, Washington, DC, for appellant Elena M. Paul.
Steven A. Steinbach, with whom Craig D. Singer, Washington, DC, was on the brief, for appellant The George Washington University.
Gary A. Godard, with whom Mark R. Lightfoot and Patricia C. Karppi, West Fairfax, VA, were on the brief, for appellee.
Before SCHWELB, RUIZ and REID, Associate Judges.
RUIZ, Associate Judge:
In these consolidated appeals, we consider again the proper application of pro tanto and pro rata credits. Appellants Elena M. Paul and The George Washington University (GWU) ask us to review two post-trial orders made after a jury verdict awarding medical malpractice damages to Paul in a suit against Dr. Charles J. Bier, her private physician. According to Paul, the trial court erred in concluding that Dr. Bier was entitled to a pro tanto rather than a pro rata credit against the verdict as a result of Paul's settlement with GWU during trial. GWU asserts that the trial court abused its discretion in denying its post-verdict motion to assert a cross-claim for contribution against Dr. Bier. Because joint liability was not established between the alleged joint tortfeasors, Dr. Bier and GWU, we agree with the trial court's decision to apply a pro tanto credit to the jury's verdict. As Paul had already been compensated by the settlement with GWU in the full amount of the jury verdict, Dr. Bier had no outstanding obligation to pay Paul. We also hold that the trial court did not abuse its discretion in denying GWU's motion to file a cross-claim for contribution against Dr. Bier on the ground that the untimeliness of the motion was prejudicial to Dr. Bier, the nonsettling party.
I.
In 1994, Elena Paul sued Dr. Charles Bier and GWU, the employer of a second physician, Dr. Druy, to recover damages for medical malpractice. During trial, GWU settled with Paul in the amount of $2,000,000 and Paul's case against GWU *42 was dismissed with prejudice[1] on July 18, 1996.[2] GWU denied liability in the settlement agreement.[3] In the event GWU was sued for contribution by Dr. Bier, however, the agreement required Paul to stipulate that GWU and its employees were "active tortfeasors . . . for the purpose of determining the rights of the remaining nonsettling defendant [Dr. Bier] to a complete or partial set-off." The settlement agreement also required Paul to indemnify GWU for any amount it may be liable in contribution to Dr. Bier.
The trial continued against Dr. Bier and, on July 29, 1996, the jury returned a $2,000,000 verdict in favor of Paul. Dr. Bier did not file a cross-claim against either GWU or Dr. Druy for contribution or indemnification, but, instead, immediately after the jury's verdict, made a motion for the application of a pro tanto credit against the verdict of $2,000,000, the amount that Paul had received in settlement from GWU. Paul opposed the motion arguing for application of a pro rata credit in the amount of $1,000,000, to reflect what Paul claimed was GWU's one-half share, as joint tortfeasor with Dr. Bier, of the jury verdict. On September 16, 1996 the trial court ruled in favor of Dr. Bier, and applied a pro tanto credit against the verdict. As a result, appellant Paul's recovery was limited to the $2,000,000 settlement amount already paid by GWU, and Dr. Bier did not have to pay anything. On October 24, 1996, settling defendant GWU sought leave of the court to file a cross-claim for contribution against Dr. Bier, which the trial court denied as untimely. Paul appeals from the order applying a pro tanto credit.[4] GWU appeals from the trial court's refusal to allow the cross-claim for contribution.
II.
A. Paul's Appeal (96-CV-1495): Pro Tanto v. Pro Rata Credit.
A pro tanto credit is based on the actual settlement amount, "dollar-for-dollar,"while a pro rata credit is based on proportionate shares of liability among joint tortfeasors. See Berg v. Footer, 673 A.2d 1244, 1248-49 (D.C.1996). Appellant Paul opposes the application of a pro tanto credit of the settlement amount against the verdict on the ground that it results in the unjust enrichment of a nonsettling defendant, such as Dr. Bier, when, as here, the amount of the verdict equals the amount of the settlement the plaintiff reached with another defendant. In addition, Paul asserts that a pro rata credit is appropriate in this case because only one of her two liability claims was submitted to the jury, and therefore the jury verdict represented only one-half of the damages arising from these claims. The question of "[h]ow to credit the judgment entered upon a jury verdict against a nonsettling defendant with the proceeds a settling defendant paid to the plaintiff" is purely a question of law, which this court reviews de novo. Berg, 673 A.2d at 1247 (citing Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1019 (5th Cir.1994)). We stated in Berg that a nonsettling defendant is *43 entitled to a pro tanto credit for the amount paid by settling defendants who are not joint tortfeasors, see 673 A.2d at 1245, and to a pro rata credit based on the nonsettling defendant's right of contribution against a settling joint tortfeasor, see id. at 1248.
Paul's complaint alleged that separate acts of negligence by Dr. Druy, a GWU employee, and Dr. Bier, her private physician, combined to proximately cause injury, namely post-phlebitic syndrome, as a result of vascular damage to her left leg. After presenting her case to the jury against all the defendants, Paul settled her negligence claim against GWU, and its employee, Dr. Druy, for $2,000,000, and they were dismissed as defendants in the case. The jury then found in favor of Paul against Dr. Bier after finding that Dr. Bier's actions were a proximate cause of Paul's injuries, and awarded her $2,000,000 as compensation for her injuries. Paul's claim that the jury verdict compensated for damages solely attributable to Dr. Bier, i.e., that it was not intended as full compensation for her injuries, is not borne out by the record.[5] The jury valued all of Paul's injuries at $2,000,000 and assessed those damages as attributable to Dr. Bier's negligence. Paul received $2,000,000 as a result of the settlement agreement with GWU. Thus, Paul was satisfied by the settlement to the full extent of the damages found by the jury.
Notwithstanding that she has received compensation to the full extent of the jury's $2,000,000 verdict, Paul contends that she is entitled to the benefit of a pro rata credit under our Berg opinion. We recognize that Paul would have benefitted if the trial court had applied a pro rata rather than a pro tanto credit, in that Dr. Bier would have been required to pay Paul an additional $1,000,000,[6] reflecting his proportionate share of liability. In Berg, this court applied a pro rata credit, which in the circumstances of that case resulted in total compensation to the plaintiff in excess of the jury's verdict,[7] noting that "the law contains no rigid rule against overcompensation." Id. at 1256 & n. 19 (quoting McDermott, Inc. v. AmClyde and River Don Castings Ltd., 511 U.S. 202, 219, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994)). This holding, however, was not *44 based on the rationale that the plaintiff was entitled to compensation in excess of the jury's verdict, but rather that, in spite of that consequence, "consistency with established precedent applicable to settlements with joint tortfeasors weighs in favor of" applying a pro rata credit to the jury verdict "even though the nonsettling defendant's pro rata contribution to the amount of the jury verdict, when added to the amounts recovered in settlement, will result in a plaintiff's recovery that exceeds the verdict." Berg, 673 A.2d at 1257. The court expressly declined to make application of a pro rata credit depend on the relative settlement and verdict amounts in an individual case, noting that "[m]aking particular credit rules contingent upon the relative amounts of the settlement and the jury's verdict . . . would only increase uncertainty and make it even more difficult for litigants to negotiate settlements." Id. But see Rose v. Associated Anesthesiologists, 163 U.S.App.D.C. 246, 250, 501 F.2d 806, 810 (1974) (limiting the amount of pro tanto credit "so as to assure that the defendant held liable in the litigation does not pay less than his equitable [pro rata] share").[8]
In short, the injured patient in Berg was no more than an incidental beneficiary of this court's decision to adhere to the rule that when a settling defendant is a joint tortfeasor, the nonsettling defendant is entitled to a pro rata credit against the jury's verdict. See Berg, 673 A.2d at 1257 (citing Martello v. Hawley, 112 U.S.App.D.C. 129, 132, 300 F.2d 721, 724 (1962)). Although application of a pro tanto credit means that the plaintiff will not receive a windfall benefit, the court's decision to apply a pro tanto credit in no way reduces that to which the plaintiff is entitled, compensation in the amount awarded by the jury. Whether Paul will receive that windfall depends exclusively on whether a pro rata credit should have been applied in order to vindicate the right of contribution between the settling and nonsettling defendants as joint tortfeasors. We now turn to that issue.[9]
A threshold obstacle to Paul's claim that a pro rata credit should have been applied to the verdict rendered against Dr. Bier is the absence of either a judicial determination or a stipulation, see Berg, 673 A.2d at 1251 & n. 13; Lamphier v. Washington Hosp. Ctr., 524 A.2d 729, 733 & n. 5 (D.C.1987), that GWU is a joint tortfeasor with Dr. Bier. Because GWU settled mid-trial and was dismissed from the case, and it did not raise the issue of contribution until after the jury's verdict, see infra, there was no court adjudication that GWU and Dr. Bier were joint tortfeasors. GWU's post-trial unilateral acknowledgment of liability in its cross-claim for *45 contribution, is not supported by any stipulation[10] and is contradicted by its blanket denial of liability in the settlement agreement. See supra note 3. As we have explained, for a nonsettling defendant to receive a pro rata credit, the liability of the settling defendants must be established either by adjudication or by stipulation between the plaintiff and the settling party. See Shannon, supra note 9, 696 A.2d at 1367 (citing Berg, 673 A.2d at 1251 & n. 13); Washington Hosp. Ctr., supra note 5, 722 A.2d at 336 (noting the "essential prerequisite for entitlement to contribution is that the parties be joint tortfeasors in the sense that their negligence concurred in causing the harm to the injured party") (citations omitted); Washington, supra note 9, 579 A.2d at 187 (explaining that the right to contribution is contingent upon a finding of joint liability); Lamphier, 524 A.2d at 733 & n. 5 (noting that the liability of the settling tortfeasor must be judicially established as a predicate to asserting the right to contribution) (citing Otis Elevator Co. v. Henderson, 514 A.2d 784, 786 (D.C. 1986) (per curiam)). As Paul's argument for a pro rata credit derives from the right to contribution of the joint tortfeasors, the same requirement applies if the plaintiff, rather than the nonsettling defendant, requests a pro rata credit. In the absence of either an adjudication or stipulation that GWU and Dr. Bier were joint tortfeasors, the trial court did not err in granting Dr. Bier's request to apply a pro tanto credit.[11]Cf. Berg, 673 A.2d at 1250-51 (stipulation sufficient where the settling tortfeasor admitted to liability in pretrial statement stipulation of facts to the court and "[a]ll parties, including [nonsettling tortfeasor] agree that [settling tortfeasor's] stipulation of liability is enough to make it a joint tortfeasor").
B. GWU's Appeal (97-CV-50): The Settling Defendant's Cross-Claim for Contribution.
GWU asserts that the trial court abused its discretion in denying its motion to file a cross-claim for contribution against Dr. Bier following the jury verdict. It maintains that there is no equitable reason why it should be required to pay the full amount of the jury verdict while Dr. Bier receives a "free pass," and that such an inequitable result conflicts with this court's longstanding policy of encouraging out-or-court settlements. As we noted earlier in connection with Paul's appeal, a question at issue in this case is whether, even assuming the timeliness of GWU's motion, GWU could claim a right to contribution as a joint tortfeasor given that its liability to the plaintiff was neither judicially determined nor the product of a stipulation by the parties. See supra notes 10 and 11.[12] Assuming that GWU, as a settling defendant, had a right of contribution against the nonsettling Dr. Bier, we recognize that *46 the settling defendant must have available a procedural mechanism to establish the predicate joint tortfeasor liability, even though as a result of settlement, it is no longer party to the lawsuit. This court, however, has yet to decide the issue whether a settling defendant has a right to contribution. See, e.g., Washington Hosp. Ctr., 722 A.2d at 342-43 & nn. 13-15. We do not reach either question, however, because we hold that, even if GWU is a joint tortfeasor with a right to contribution, the trial court did not abuse its discretion in disallowing the cross-claim on the ground that GWU's failure to timely assert its right to contribution was prejudicial to Dr. Bier, the nonsettling defendant.[13]
The decision whether to grant or deny a motion to file a cross-claim under Civ. R. 13(a) or to amend a pleading under Rule 15 is within the sound discretion of the trial court, and we review the decision for abuse of discretion. We are mindful, however, of the liberal construction we place on pleading rules to achieve substantial justice over formalism. See Goldkind v. Snider Bros., Inc., 467 A.2d 468, 474 (D.C.1983); Eskridge v. Jackson, 401 A.2d 986, 988 (D.C.1979) (per curiam); Eagle Wine & Liquor Co. v. Silverberg Elec. Co., 402 A.2d 31, 34 (D.C.1979). Although a trial court may not deny a motion to amend the pleadings simply because of undue delay, "the lateness of a motion may well provide the predicate for a proper determination that prejudice to the opposing party would result if an amendment were allowed." Eagle Wine & Liquor Co., 402 A.2d at 35; see also Gordon v. Raven Sys. & Research, Inc., 462 A.2d 10, 13 (D.C.1983) (no abuse of discretion in denying leave to amend complaint requested eighteen months after filing and after close of discovery, noting that movant gave no reason for delay and opposing party would be prejudiced by having to begin anew the pretrial and trial proceedings).
In evaluating the timeliness of GWU's motion to file a cross-claim and its potential prejudice to Dr. Bier, we start with the familiar principle we have already discussed in connection with Paul's appeal that a right of contribution does not arise "without a finding that the party seeking contribution is a joint tortfeasor along with the party from whom contribution is sought." Hall, supra note 13, 621 A.2d at 850. GWU argues that it did not have a right of contribution against Dr. Bier until he was found to be a tortfeasor, and thus, that GWU could not have filed its cross-claim before the jury's verdict. Here, GWU sought leave to file its cross-claim not only three months after the jury's verdict but also five weeks after the trial court had ruled on Dr. Bier's motion for a pro tanto credit. Thus, GWU also argues that its contribution claim was not untimely because it did not accrue until after the trial court awarded a pro tanto credit to *47 Dr. Bier and it became clear that GWU had paid a disproportionate share of the liability. According to our case law, "a right of contribution accrues when two or more parties are joint tortfeasors." Hall, supra note 13, 621 A.2d at 850 (citations omitted), but is "enforceable only after the one seeking it has been forced to pay." Bair v. Bryant, 96 A.2d 508, 510 (D.C. 1953). Although we do not decide whether GWU was a joint tortfeasor, we note that if GWU was not a joint tortfeasor then it had no right to contribution, and if, as GWU subsequently postulated, it was a joint tortfeasor, its right of contribution (assuming that settling defendants have such a right) would have become enforceable at the time, while the litigation against Dr. Bier was still in progress, when it agreed to pay Paul $2,000,000. Moreover, it would not be the trial court's application of the pro tanto credit in mid-September 1996, but the verdict at the end of July 1996, that would have alerted GWU to the disproportionality of its settlement with Paul.[14] We therefore are not persuaded that GWU had a reason, based in law, to delay asserting its claim of contribution.
In Washington, this court held that a nonsettling defendant is barred from filing a cross-claim for contribution post-trial in the parallel situation to the one in this appeal, where the nonsettling defendant's share of liability after application of a pro tanto credit was more than its pro rata share. 579 A.2d at 186-88 & n. 11. Even though the right to contribution does not accrue until the nonsettling defendant's status as joint tortfeasor is established, a cross-claim for contribution against a settling defendant must be asserted before the verdict is rendered as the claimant is expected to "safeguard any legitimate claim it might have to lessen the burden of a plaintiff's verdict" by asserting it during trial. Id. at 188 (citation omitted). Likewise, in Hall v. General Motors Corp., 207 U.S.App.D.C. 350, 647 F.2d 175 (1980), the court indicated that where a nonsettling defendant has a clear opportunity to clarify the issue of a settling defendant's liability by filing a cross-claim during trial and does not do so, the nonsettling defendant is not entitled to a pro rata reduction of judgment based on joint liability. See Id. at 358-59, 183-84, 647 F.2d 175; see also Berg, 673 A.2d at 1250 n. 10 (noting nonsettling defendant's responsibility to file cross-claim against settling defendant in principal action to ensure right to a pro rata contribution); Otis Elevator Co., 514 A.2d at 786 (concluding that where a nonsettling defendant does not cross-claim against a settling defendant for contribution, and neither the judge nor the jury ever considered liability of settling defendant, nonsettling defendant is only entitled to pro tanto contribution). In formulating this rule, we have focused on the prejudice caused by the nonsettling defendant's late assertion of a claim for contribution on the settling defendant, see Berg, 673 A.2d at 1250 n. 10, and on the plaintiff, see Washington, 579 A.2d at 188 (because "[pro rata] credit's consequences are visited upon the plaintiff .... injured party in settling with one tortfeasor effectively bears the burden that otherwise would fall upon the settling tortfeasor to make contribution").
We see no reason why the same principle should not apply when it is the settling defendant claiming contribution. As the trial court aptly noted:
If equity bars a late-filed cross-claim for contribution by the non-settling defendant even where its share of liability after a pro tanto credit is more than its pro rata share, it is hard to see why equity should entertain an after-the-fact *48 cross-claim by the settling defendant when the verdict goes the other way.
Like a nonsettling defendant, a settling defendant sleeps on its rights when it fails to file a timely cross-claim to determine the respective liability of the defendants. Fairness dictates that all defendants, whether they choose to settle or litigate, file cross-claims for contribution before the verdict in order to give notice to other defendants that they will be required to pay their fair share of damages to a joint tortfeasor in the event that they are found liable.[15] We recognize that a nonsettling defendant does not need the spur of a claim for contribution to defend itself against a plaintiff's claim of liability. The manner of defense and trial strategy may be different, however, in light of a claim for contribution by an alleged joint tortfeasor. In this case, as we noted earlier in consideration of Paul's appeal, there was no request to apportion the injury attributable to Dr. Bier from that attributable to GWU. See supra note 5. Although there can be no doubt that it was in Dr. Bier's interest even prior to GWU's settlement to separate its responsibility from that of GWU if it could have reduced his potential liability to Paul as a result, Dr. Bier may have considered that the most effective defense with the jury was one that denied all liability on his part and attempted to minimize the injury alleged by Paul. Had Dr. Bier been put on notice of GWU's intent to claim for contribution, he would have had an incentive to build a case during trial that separated his liability from that of GWU if he knew that joint tortfeasor liability would be a central feature of his responsibility to GWU. See Washington, supra note 9, 579 A.2d at 188 (noting ways in which plaintiff might have litigated differently in light of request for pro rata credit even if it meant shifting theories before jury).
In this case, were the court to grant GWU, a settling defendant, leave to file its belated cross-claim for contribution against Dr. Bier, in the words of the trial court, GWU would "have all of the benefits of a claim for contribution with none of the burdens that should, in equity, attend such a claim." Given that the $2,000,000 settlement amount equals the jury verdict, the pro tanto credit protects GWU against any contribution claim by Dr. Bier. Even if GWU's pro rata share of the verdict had exceeded the settlement amount, and Dr. Bier had claimed a right to contribution, the indemnification clause in the settlement agreement between Paul and GWU ensures that GWU will be shielded from any further contribution. See Rose, 163 U.S.App.D.C. at 250, 501 F.2d at 810 (noting that settling defendants "cannot equitably insist on a continuing involvement in the litigation for the purpose of invoking contribution to lessen their [settlement] payment when they have no exposure to an increase in payment if contribution should be sought from them"). Dr. Bier, on the other hand, would be precluded from filing a cross-claim for contribution against GWU after the verdict. See Washington, supra note 9, 579 A.2d at 187-88. Thus, as the trial court observed, GWU filed its cross-claim only after it was protected from any "downside risk of contribution to Dr. Bier."
A requirement that all defendants file cross-claims for contribution before verdict is in line with our longstanding policy of encouraging settlements. See, e.g., Moses-Ecco Co. v. Roscoe-Ajax Corp., 115 U.S.App.D.C. 366, 371 & n. 4, 320 F.2d 685, 690 & n. 4 (1963) (citing Martello, 112 U.S.App.D.C. at 130, 300 F.2d at 722, and McKenna v. Austin, 77 U.S.App.D.C. 228, 234, 134 F.2d 659, 665 (1943)). Had GWU filed a timely cross-claim for contribution, *49 Dr. Bier would have been put on notice that, should the jury find him negligent, he would be required to pay his pro rata share of the damages award. While this information may not have induced Dr. Bier to settle, especially if he believed that he would be exonerated by the jury, at the very least a contribution cross-claim would have informed Dr. Bier's strategic choices and should, therefore, have been filed during the course of the litigation. Accordingly, the trial court did not abuse its discretion in denying as untimely GWU's motion to cross-claim for contribution, filed several months after GWU knew the jury verdict awarding $2,000,000 to Paul and the trial court's order granting Dr. Bier's motion for a pro tanto credit against the verdict.[16]
For the foregoing reasons, we affirm the trial court's application of a pro tanto credit and denial of GWU's a post-verdict motion to amend its pleadings to include a cross-claim for contribution.
So ordered.
RUIZ, Associate Judge, concurring:
I write separately to urge that the court finally decideif necessary, en banca question that we narrowly avoid in this appeal, whether a settling defendant has a right to sue a nonsettling joint tortfeasor for contribution. I also think that the en banc court should reconsider the opinion in Berg v. Footer, 673 A.2d 1244 (D.C.1996), which in part drives the result we reach today, with respect to the rights of the injured plaintiff. In so doing, we should comprehensively address the issue of the proper application of pro tanto and pro rata credits and provide litigants with clear guidance on the applicable rules so that they, in turn, can make informed decisions in the course of litigation and structure their private agreements accordingly.
This is the first case where this court has been presented with a situation where both the injured plaintiff seeks a pro rata credit in order to recover more than the jury verdicta situation we allowed in Berg, 673 A.2d at 1257and a settling tortfeasor claims contribution in order to avoid paying (through its settlement with the plaintiff) more than its pro rata share of the jury verdict. Although both argue for application of a pro rata credit against the verdict, they are at odds over which party should receive the benefit: the injured plaintiff argues that after application of a pro rata credit that will reduce the jury verdict by half, she should receive the adjudicated tortfeasor's pro rata share of the jury verdict (in this case, when combined with the settlement, another $1,000,000 in excess of the amount the jury awarded in compensatory damages), but the settling tortfeasor claims that it should be able to recover that amount from the *50 adjudicated tortfeasor.[1] These conflicting claims reveal tensions in our jurisprudence that should be addressed.
Even though Berg did not squarely address the conflicting claims before us, I do not believe that we are free to "do equity" as the dissent suggests. Berg clearly holds that "whenever the plaintiff settles with a joint tortfeasor, the nonsettling defendant shall receive a pro rata credit under Martello, reflecting the [nonsettling] defendant's equitable right to contribution and no more, even when the plaintiff's recovery from all defendants will exceed the amount of the verdict and thus violate the one satisfaction rule." Id. at 1245 (referring to Martello v. Hawley, 112 U.S.App.D.C. 129, 300 F.2d 721 (1962)). Given application of a pro rata credit against the verdict, and the resulting obligation of the adjudicated tortfeasor to pay the remaining verdict to the plaintiff, Berg would not appear to admit the possibility that the settling tortfeasor can step in to intercept monies that otherwise would be payable to the plaintiff.
I would overrule Berg to the extent it permits a plaintiff to request application of a pro rata credit where the result will be that the plaintiff will recover more than the jury verdict; and I would preclude settling defendants from suing for contribution. I make these proposals fully aware that they are not completely satisfactory. In particular, precluding a settling tortfeasor from contribution (while permitting a suit for contribution against the settlor) is subject to criticism as discouraging settlement because the settling tortfeasor can have no assurance that settlement finally fixes its liability.[2] But all possible solutions have drawbacks.
As we noted in Berg, 673 A.2d at 1252, there are three possible solutions to this highly debated issue:[3]
a) settlement extinguishes the plaintiff's claim against the settling tortfeasor and a pro tanto credit is applied against the jury verdict; the nonsettling defendant retains a claim for contribution against the settling tortfeasor if the remaining verdict exceeds the nonsettling defendant's equitable share;
b) settlement extinguishes both the plaintiff's claim and any claim for contribution by the nonsettling tortfeasor, usually subject to a determination of the "fairness" of the settlement. Once such a hearing is provided for, and the finality of settlement suspended, the incentive to settle is diminished; and
c) settlement extinguishes the plaintiff's claim against the settling tortfeasor, and the verdict is reduced by the equitable share of the settling tortfeasor's liability in recognition of the nonsettlor's right of contribution.
A pro rata credit against the verdict represents the nonsettling defendant's "right to contribution" from the settling defendant when both have been found liable for the plaintiff's injuries. Berg, 673 *51 A.2d at 1248. A pro rata credit, therefore, acts as "a substitute for the non-settling defendant's actual claim for contribution that persists after the dismissal of the principal claim against a settling defendant." Id. (quoting Washington v. Washington Hosp. Ctr., 579 A.2d 177, 187 (D.C. 1990)). Thus, it is the nonsettling defendant's right to contribution, not the plaintiff's right to compensation, which is given effect in the application of a pro rata credit. The pro tanto credit, on the other hand, is not premised on ensuring equity between joint tortfeasors, but is based on the rationale that the plaintiff is entitled to no more than the loss actually suffered. See Berg, 673 A.2d at 1248-49. In this appeal, it is undisputed that the plaintiff received $2,000,000 in settlement from the settling defendant, which equaled the total amount of the jury verdict. Application of the pro tanto credit, which eliminated the nonsettling defendant's obligation to the plaintiff, merely recognized the reality that, by the time the jury returned its verdict, the plaintiff had no uncompensated damage outstanding. This is a good and sufficient reason not to recognize a plaintiff's right to contest application of a pro tanto credit where the plaintiff has received the full amount of the jury verdict.[4] It makes no sense to entitle a fully-compensated plaintiff to assert the nonsettling defendant's right to contribution as a way of achieving a windfall when the nonsettling defendant is not asserting its own right.[5]
I also would hold that settlement extinguishes the settling tortfeasor's right of contribution against other joint tortfeasors. This is a more controversial point. Most states prohibit a settling tortfeasor from seeking contribution once it turns out that the settlement amount is more than that defendant's proportionate share of the damages awarded after trial. See Berg, 673 A.2d at 1253-54 & n. 17 (citing McDermott, 511 U.S. at 211 n. 13, 114 S.Ct. 1461).[6] Noting the principle of equity underlying *52 the contribution doctrine, the United States Court of Appeals for the District of Columbia Circuit has explained that
[t]he settling party has settled his share of the case for a specified amount. That amount may not be increased because his settlement turns [out] to be for less than a pro rata share.[[7]] [Therefore, i]t should not be subject to reduction through contribution because he has settled for what turns out to be greater than a pro rata share.
Rose, 163 U.S.App.D.C. at 250 n. 10, 501 F.2d at 810 n. 10. We have also noted a contrary view, at least in cases where application of pro tanto credit would eliminate the nonsettling defendant's liability. See Berg, 673 A.2d at 1253-54 n. 17 (citing McKenna v. Austin, 77 U.S.App.D.C. 228, 234, 134 F.2d 659, 665 (1943)).
Although there are arguments to be made for each approach, I believe that ensuring the maximum finality of settlements freely reached by the parties, will prove to be the best incentive to settlement.[8] In his dissent, Judge Schwelb argues for a different proposition. The en banc court can consider the alternatives and decide, in a comprehensive context, the set of rules that will better promote the desirable policy of encouraging fair settlements, without unduly penalizing litigants who prefer an adjudication of liability. Sitting en banc, the court can do what the Berg division felt it could not accomplish because of the binding precedent set by Martello. As the Berg opinion noted,
If Martello were not the law, recognizing the nonsettling tortfeasor's right (at least when the settlement is less than half the verdict) to a pro rata credit, we might look at this case differently. There is much to be said for an across the board pro tanto (without contribution) rule, coupled with a required showing of a good faith settlement. Under such a rule, whether the settling defendant is a joint tortfeasor or not, (1) settlement pressure on all defendants is great, and (2) a plaintiff, by settling with one defendant and successfully litigating against another, will always be made whole in the amount of the jury's verdict.
Bound by precedent, however, we are not free to consider overruling our bifurcated system of credit rules under Martello and Snowden even if one uniform credit rule regime would be demonstrably superior.
673 A.2d at 1244.
However the full court ultimately decides these issues, the most important goal is that they be settled in a definitive manner so that litigants have a clear set of rules by which to make decisions in the course of litigation. I would leave it to the parties, in their litigation decisions and private agreements, to determine who is to bear the risk of settlingor notfor an amount that turns out not to be "fair" *53 (from a particular litigant's perspective). This is not the sporting theory of justice the dissent laments, which usually can only be so characterized with the benefit of 20/20 hindsight. The reality is that the amount of settlement, as here, is usually kept confidential, and litigants act out of a sense of enlightened self interest based on their view of what a jury is likely to do given the evidence presented, not on foolish (and potentially very expensive) bets. Short of holding matters in abeyance until all the information is in, which I believe is the greatest disincentive of all to settlement, there is no way to ensure mathematical fairness in an ongoing and sometimes unpredictable process during which parties perforce make decisions based on imperfect information. I would resist the temptation to try to have the rules of contribution operate as a judicial deus ex machina to make all things right (by our lights) in the end.
REID, Associate Judge, concurring:
Although I join Judge Ruiz' opinion for the court, I am of the view that the issues raised by this matter should be considered by the en banc court, after supplemental briefing.
SCHWELB, Associate Judge, dissenting:
In my opinion, The George Washington University (GWU) should have been permitted to file its cross-claim. On the merits, I believe that GWU is entitled to contribution from Dr. Bier in the amount of one million dollars. Because the majority holds otherwise, I must respectfully dissent.
I.
The facts have been fully set forth in the majority opinion, and I confine myself to the essentials. Ms. Paul sued GWU and Dr. Bier for medical malpractice. The trial judge found, and all members of the division agree, that the injury alleged to have been inflicted by GWU cannot reasonably be separated from the injury said to have been caused by Dr. Bier. Ms. Paul settled with GWU for two million dollars. Her case against Dr. Bier subsequently went to trial, and the jury awarded her two million dollars. The trial judge held that Dr. Bier was entitled to a pro tanto credit; i.e., a credit of the two million dollars paid by GWU on the judgment against Dr. Bier in the same amount. As explained in the majority opinion, the judge denied GWU leave to cross-claim for contribution against Dr. Bier, who was thus required to pay nothing.
In the trial court, and again on appeal, each of the three parties to the suit has proposed a different resolution of the parties' respective rights and liabilities. Each party has a million dollars at stake, and unsurprisingly, each has embraced a plan saving her, it, or him a million dollars. In the table that follows, I set forth the practical consequences of each party's proposal, i.e., how much each party would receive or pay:
TOTAL
PROPONENT AMOUNT TO AMOUNT TO AMOUNT TO
OF BE PAID TO BE PAID BE PAID BY
PLAN MS. PAUL BY GWU DR. BIER
Ms. Paul $3,000,000 $2,000,000 $1,000,000
GWU $2,000,000 $1,000,000 $1,000,000
Dr. Bier $2,000,000 $2,000,000 -0-
The trial judge's rulings had the effect of approving the plan proposed by Dr. Bier.
Ms. Paul appeals because, if the judge's order is affirmed, she will receive only two million dollars rather than the three million to which she claims to be entitled. GWU also appeals, for it hopes ultimately to have to contribute only one million dollars, and not twice that amount as required under the trial judge's disposition. Discerning no mischief in a resolution that frees him from any liability at all, Dr. Bier urges this court to affirm the judgment.
II.
This case is somewhat unusual in that the issues presented are entirely equitable in nature. There is no statute or rule of court dictating the result. On the questions that I consider most important, there *54 is no binding precedent in this jurisdiction. In general, as Chief Justice Burger has written, "[o]ur duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done." Bifulco v. United States, 447 U.S. 381, 402, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) (concurring opinion) (citing The Spirit of Liberty: Papers and Addresses of Learned Hand 306-07 (Dillard ed.1960)). In this case, however, we are free, without any unwise resort to judicial activism, to fashion the most equitable resolution of the issues of law and legal policy that have been presented to us.[1]
Ms. Paul suffered an undivided injury which the jury assessed at two million dollars. Dr. Bier was found negligent. GWU has now described itself as a joint tortfeasor and thus admits, for present purposes, that it too was negligent. Logically, it seems to me that the most equitable solution is for Ms. Paul to receive two million dollars, with Dr. Bier and GWU paying her one million each. This disposition compensates Ms. Paul fully for her injury, unjustly enriches no one, and divides liability equally between the two negligent defendants.[2] In my opinion, the principal question is whether there are overriding reliance interests or reasons in law or policy for rejecting this common-sense result. As I show below, there are no such overriding reasons.
III.
I first address, briefly, Ms. Paul's claim that she should receive three million dollars rather than two million.
The teaching of Berg v. Footer, 673 A.2d 1244, 1248-49 (D.C.1996), and of the authorities on which the court in Berg relied, is that, for somewhat arcane reasons, a non-settling defendant receives pro rata credit if the settling defendant is a joint tortfeasor, but pro tanto credit if the settling defendant is not a joint tortfeasor. The determination that a party is a joint tortfeasor can be effected by adjudication or by stipulation. Id. at 1251. Moreover,
whenever the plaintiff settles with a joint tortfeasor, the nonsettling defendant shall receive a pro rata credit under Martello [v. Hawley, 112 U.S.App. D.C. 129, 300 F.2d 721 (1962)], reflecting the defendant's equitable right to contribution and no more, even when the plaintiff's recovery from all defendants will exceed the amount of the verdict and thus violate the one satisfaction rule.
Id. at 1245.
In the present case, there has been no ruling by the court that GWU was a joint tortfeasor, and there has likewise been no formal stipulation to that effect. Ms. Paul has, however, alleged that GWU was a joint tortfeasor. Notwithstanding its prior denials of malpractice, GWU now asserts, for purposes of its cross-claim, that it should be treated as a tortfeasor. Ms. Paul having suffered a single indivisible injury, it follows that if GWU was a tortfeasor at all, then it was a joint tortfeasor. Under these circumstances, I believe that we have here the substantial equivalent of a stipulation of joint tortfeasorship. If both affected parties assert the same proposition to be true, the fact that this assertion is not contained in a formal stipulation seems irrelevant; to hold otherwise would exalt form over substance to an unacceptable degree.[3] I therefore conclude that under *55 Berg, as between Ms. Paul and Dr. Bier, Ms. Paul should prevail. Berg, as applied to this case, holds that a million dollar windfall for Ms. Paul, the injured party, is preferable to a similar windfall for Dr. Bier, who has been adjudicated to have been negligent, and who, remarkably, is asking that he be excused from paying anything at all.
But Berg did not decide whether, if someone in Dr. Bier's position is required to contribute a million dollars as his pro rata share, the beneficiary should be the plaintiff or the settling defendant. Indeed, that case did not involve any claim by the settling defendant. Berg authorizes a narrow departure from the "one satisfaction rule" to ensure that the non-settling tortfeasor does not receive an undeserved windfall. Berg should not be read as making any greater inroad than that on the "one satisfaction rule."
In my opinion, the reasons in Berg for providing the plaintiff with compensation in excess of his or her damages do not apply here. I know of no basis in law or policy for awarding Ms. Paul an extra million dollars just to ensure that GWU pays the entire amount for which it settled. Accordingly, I would apply the "one satisfaction" principle and limit Ms. Paul's recovery to two million dollars, which is the amount at which the jury fixed the compensable value of her injury.
IV.
There appear to be two possible theories upon which GWU might be denied recovery vis-a-vis Dr. Bier. The first is that a settling defendant has no right to seek contribution from a non-settling defendant. The second is that, even if the settling defendant has such a right, GWU waived it in this case by seeking relief too late. My colleagues in the majority deny relief on the basis of the second theory. In her concurring opinion, Judge Ruiz urges that this court also adopt the first theory. I disagree with both of these theories.
A. The settling defendant's right to contribution.
"Most jurisdictions bar the settling defendant from seeking contribution if it settles for more than its proportionate share of the damages." Berg, supra, Inc. v. AmClyde and River Don Castings, Ltd., 511 U.S. 202, 211 n. 13, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994)). There is no dispositive case law in this jurisdiction, however, and the question remains an open one. Id. at 1254 & n. 17. Judge (later Justice) Rutledge, writing for the court in McKenna v. Austin, 77 U.S.App.D.C. 228, 234, 134 F.2d 659, 665 (1943), was of the opinion that
[b]y settling with the injured person [a defendant] does not surrender his [or her] right of contribution[,] and the settlement should not give the other wrong-doer an advantage. Consequently he [or she] should recover from the latter the amount necessary to equalize the payments.
Accord, Early Settlers Ins. Co. v. Schweid, 221 A.2d 920, 922 (D.C.1966) (permitting settling defendant to sue for contribution or indemnification); Taylor v. Tellez, 610 A.2d 252, 253-55 (D.C.1992) (same); but cf. Rose v. Associated Anesthesiologists, 163 U.S.App.D.C. 246, 250, 501 F.2d 806, 810 (1974) (Leventhal, J.) (rejecting McKenna and stating that settling defendants "cannot equitably insist on a continuing involvement in the litigation for the purpose of invoking contribution to lessen their payment when they have no exposure to an increase in payment if contribution should be sought from them").[4]
An issue that finds distinguished jurists like Justice Rutledge and Judge Leventhal *56 taking opposing positions is obviously a difficult one, and may warrant consideration by the en banc court. Pending such consideration, however, I believe that GWU has the better of the argument.
"Voluntary settlement of civil controversies is in high judicial favor." Autera v. Robinson, 136 U.S.App.D.C. 216, 218, 419 F.2d 1197, 1199 (1969); see also McDermott, supra, 511 U.S. at 211, 114 S.Ct. 1461. I agree with GWU's contention that a rule permitting the settling defendant to seek contribution would promote the policy favoring voluntary settlement. In the absence of a right to contribution, a defendant is likely to be reluctant to be the first to settle for fear that, if he does so, he will ultimately have to pay a disproportionate share (or, as in this case, the entirety) of the judgment. Moreover, once one defendant has settled with the plaintiff, the remaining defendants will have less incentive to negotiate, for they will know that they can expect a free ride (by virtue of their pro tanto credit) to the extent that the verdict does not exceed the amount paid by the settling defendant.
Contrary to the court in Rose, 163 U.S.App.D.C. at 250, 501 F.2d at 810, I do not believe that a party in GWU's position should be denied contribution because it has "no exposure to an increase in payment if contribution should be sought from [it]." GWU's argument on this point is persuasive, and I quote from it at some length:
.... [A]ny settlement [by the settling defendant] for more than half of an eventual verdict will unjustly enrich the defendant who stubbornly went to trial and was found liable. Equity dictates that a settling defendant be permitted to sue for contribution in order to equalize the burden on all defendants.
Significantly, such a suit would not disadvantage the non-settling defendant in any cognizable way. Under no circumstances would the non-settling defendant be required to pay any more than the amount for which he was adjudged fully liable at trial. In fact, as in this case, when the verdict it less than twice the amount of the settlement, an award of contribution would require the non-settling defendant to pay no more than half of any trial verdict. A defendant who has lost a[t] trial should have no cause to complain about this result.
In sum, a regime that seeks to promote settlements is fundamentally flawed if it denies contribution to a settling defendant. Instead, under a well-designed system, every defendant should know that if he settles he will be protected against the risk of owing more than the settlement amount, and he can recover some of the settlement amount in contribution if his co-defendant insists on going to trial and loses (and if the verdict is less than twice the settlement). Such a regime would create a salutary incentive to settle, rather than the incentive to delay settlement that the Superior Court's rule engenders.
(Emphasis in original.)
B. Waiver.
The majority holds that "even if GWU is a joint tortfeasor with a right to contribution, the trial court did not abuse its discretion in disallowing the cross-claim on the ground that GWU's failure to timely assert its right to contribution was prejudicial to Dr. Bier...." In other words, my colleagues are of the opinion that GWU waived its right to a determination, on the merits, regarding whether it should contribute one million dollars or two million as compensation for Ms. Paul. If the majority is right, then this was a remarkably expensive waiver. In any event, I do not agree with the majority's analysis.
A contribution claim accrues only upon the "disproportionate discharge of the common obligation by one of the common obligors." Bair v. Bryant, 96 A.2d 508, 510 (D.C.1953). GWU argues that its claim against Dr. Bier "did not accrue until the Superior Court awarded Dr. Bier a credit against the jury's verdict, thus rendering *57 GWU's payment disproportionate." I agree.
In this jurisdiction, cross-claims between defendants are governed by Civ. R. 13(g), which permits the filing of a cross-claim against a co-party who "is or may be liable to the cross-claimant." Rule 13(g), like its federal counterpart, see Fogel v. United Gas Improvement Co., 32 F.R.D. 202, 203 (E.D.Pa.1963), imposes no limitation on the time when a cross-claim must be filed. "The decision whether to allow a cross-claim that meets the test of subdivision (g) is a matter of judicial discretion." 6 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1431, at 242 (1990) (hereinafter WRIGHT, MILLER & KANE). "[I]n the absence of a showing of injustice to some one or a delay of the trial, no arbitrary time limitation without an express rule of court will be imposed." Id. (quoting Fogel, supra, 32 F.R.D. at 203).
According to the majority, GWU's "right of contribution, assuming that settling defendants have such a right, would have become enforceable at the time, while the litigation against Dr. Bier was still in progress, when it entered into the settlement agreement to pay [Ms.] Paul." But at the time that GWU settled with the plaintiff, it could have had no idea what the result of Ms. Paul's suit against Dr. Bier would be. If the verdict had been for, say, ten million dollars, then GWU obviously would have had no basis for seeking contribution. Thus, at the time the court says GWU was obliged to file its cross-claim, GWU's right to recovery would have been completely speculative. In my opinion, it is contrary to common sense to require a party to file a cross-claim when that party knows that, depending on future developments, the cross-claim will have no merit whatsoever.[5]
Moreover, on the facts here presented, the consequences imposed by the majority are quite draconian. There was no law in this jurisdiction, and the majority has cited none, declaring unequivocally (or at all) that such a cross-claim must be filed in advance of a party's ascertainment of the extent of the other defendant's liability. "Equity abhors forfeitures ... [and] so, indeed, does the law." Association of Am. R.Rs. v. Connerton, 723 A.2d 858, 862 (D.C.1999) (citations omitted). It strikes me as quite unreasonable to hold that, by failing to file a pleading at a time when the sine qua non of a right to recovery had not yet been established, GWU effected an involuntary forfeiture of its right to a merits determination of such a significant claim.
This is particularly true since, in my judgment, Dr. Bier has failed to make even a colorable showing of detrimental reliance or prejudice. According to the majority, Dr. Bier was prejudiced because "[t]he manner of defense and trial strategy may be different ... in light of a claim for contribution by an alleged joint tortfeasor." But in the preceding sentence, the majority "recognize[s] that a nonsettling defendant does not need the spur of a claim for contribution to defend itself against a plaintiff's claim of liability." Moreover, the majority's analysis assumes its conclusion, for at the time Dr. Bier was preparing his case, there was no authority in this jurisdiction (or, so far as I am aware, in any other) holding that a cross-claim could not be filed after the determination of the nonsettling defendant's liability. Dr. Bier and his attorneys therefore could not have relied, to their detriment or *58 otherwise, on any such authority, nor could they reasonably have assumed that no cross-claim would be filed at a later date. See also discussion at p. 46, infra.[6]
In fact, the only prejudice Dr. Bier claims that he would suffer if GWU were allowed to file its proposed cross-claim is the denial of a reward for his attorney's alleged "strategic decision" regarding how he should proceed in the case Dr. Bier asserts in his brief that after GWU settled with Ms. Paul, he made a risky tactical choice, presumably through counsel, not to file a cross-claim against GWU because he believed that the verdict against him would not exceed twice the settlement. According to Dr. Bier, he was "betting" that he would be awarded a pro tanto credit, and that this credit would be more advantageous to him than the pro rata credit that he would have received if he had filed a cross-claim and secured an adjudication that GWU was a joint tortfeasor. At oral argument, Dr. Bier's attorney stated that "we bet [the verdict] wouldn't be more than two million dollars."
GWU describes Dr. Bier's argument as "deeply misguided." I agree. First, this kind of "strategic prejudice" and "betting" ought to have no place in the contribution inquiry. Contribution is not a "game of chance" in which the savviest prognosticator gets off free. "The principal purposes of contribution are fairness to joint tortfeasors (by distributing the plaintiff's losses equitably among all wrongdoers) and deterrence (by ensuring that all parties responsible for the injuries will share in the cost of the offending conduct)." Hall v. George A. Fuller Co., 621 A.2d 848, 850 n. 3 (D.C.1993) (citing Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 111, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974)). A tortfeasor has no right to force an in equitable outcome because he "cleverly" devised a strategy which reduced his liability to zero. Dr. Bier asserts, in effect, that his interest in reaping the rewards of a purported "bet" on the result of this litigation should prevail over the equitable and just apportionment of liability for the plaintiff's losses. In my opinion, such a contentiona sort of extreme application of the "sporting contest" theory of litigationis insupportable and unjust and ought not to be adopted by this court.
Moreover, Dr. Bier's argument depends on a false premise. It is predicated upon his alleged reliance on the proposition that GWU, as a settling defendant, could not recover contribution against him.[7] But this proposition was not settled law at the time, and is not settled law today. Indeed, the question whether a settling defendant may obtain contribution against a non-settling defendant was explicitly left open in Berg, supra, 673 A.2d at 1254 n. 17. Accordingly, an award of contribution would not upset any reasonable expectation on Dr. Bier's part based on existing law, and it therefore would not prejudice Dr. Bier's asserted right to be rewarded for his attorney's "strategic" decision-making.
V.
For the foregoing reasons, I respectfully dissent
NOTES
[1] Prior to settling with GWU, Paul dismissed her claim against Dr. Druy, the GWU physician.
[2] The settlement agreement between Paul and GWU is dated one week later, July 26, 1996.
[3] The settlement agreement provides in pertinent part:
Nothing contained in this paragraph of the Agreement constitutes an acknowledgment by George Washington, its agents, servants or employees, that they are or should be liable to the plaintiff or the nonsettling defendant for the claims and causes of action asserted in the lawsuit. George Washington, its agents, servants and employees maintain that they are not liable on any of the claims and causes of action asserted therein.
[4] Paul had also moved to seal the settlement agreement. The trial court denied the motion to seal as Paul sought to attach the settlement agreement to her opposition to Dr. Bier's motion for a pro tanto credit. Paul does not appeal from the court's denial of her motion to seal.
[5] According to the trial court,
[t]he jury was not asked to apportion the injury caused by defendant Bier's negligence from the injury caused by any negligence of the settling defendants [i.e., GWU and Dr. Druy], and the expert testimony would not have permitted the jury to make such an apportionment had it been asked to do so. Based on the evidence and the court's instructions, the jury found that defendant Bier's negligence was a proximate cause of [Paul's] injuries, and that $2,000,000 would fairly and reasonably compensate her for those injuries.
On appeal, Paul contends, without record reference, that the jury instructions on negligence and damages "corresponded directly to the single claim of damages attributable to defendant Bier only." We see no evidence in the record contrary to the trial court's determination that Paul did not request that the jury award only those damages caused solely by Dr. Bier, and Paul did not designate any of the transcript for the record on appeal. Indeed, by arguing that the trial court should have applied a pro rata credit, Paul impliedly asserts that Dr. Bier and GWU were jointly liable for a single injury. See District of Columbia v. Washington Hosp. Ctr., 722 A.2d 332, 338 (D.C.1998) (en banc); Berg, 673 A.2d at 1248 (noting that a party who is sole cause of injury is not entitled to contribution).
[6] This $1,000,000 figure assumes that GWU, and its employee, Dr. Druy, constitute one tortfeasor, and that Dr. Bier, as the second tortfeasor, would be responsible for half of the $2,000,000 jury verdict under a pro rata credit scheme.
[7] In Berg, after the hospital and laboratory settled for $800,000 and $150,000, respectively, the jury returned a verdict against the nonsettling physician in the amount of $1,406,071. The nonsettling physician obtained a pro tanto credit of $150,000 with respect to the laboratory, which had not been determined to be a joint tortfeasor, and a pro rata credit of one-half of the remainder of the jury verdict (after deduction of the $150,000 pro tanto credit) with respect to the hospital, which was a joint tortfeasor. As a result, the plaintiff received $1,578,035.50, more than the $1,406,071 awarded by the jury.
[8] The $2,000,000 settlement between Paul and GWU reflected a strategic choice by Paul, who considered "the uncertainty of recovery and of the need for a settlement to help strengthen [her] litigation prospects against a nonsettler." Berg, 673 A.2d at 1256 (citing McDermott, 511 U.S. at 221, 114 S.Ct. 1461). Had the jury returned a verdict against Dr. Bier of less than the settlement amount, Paul would have gained "good fortune in striking a favorable bargain with" GWU. Id. (quoting McDermott, 511 U.S. at 220, 114 S.Ct. 1461).
[9] It is worth noting that had the jury verdict substantially exceeded the settlement amount, and if GWU had been determined to be a joint tortfeasor, Paul could have received less than the full amount of the verdict. This is because Dr. Bier, the nonsettling tortfeasor, would have obtained a pro rata credit against the verdict in an amount equal to the sum to which he would have been entitled in contribution, i.e., half of the verdict, instead of recovering directly from GWU. See Berg, 673 A.2d at 1250 n. 9. For example, had the jury returned a verdict of $5,000,000, and assuming a pro rata credit of one-half were appropriate, Dr. Bier would have received a $2,500,000 credit against the verdict. Paul would have received a total of $4,500,000: $2,500,000 from Dr. Bier and the $2,000,000 settlement from GWU, which by virtue of its decision to settle with Paul would have limited its liability in the suit. See District of Columbia v. Shannon, 696 A.2d 1359, 1368 (D.C.1997) ("[A] plaintiff ... must have an opportunity to develop the record in opposition to the claim [for a pro rata credit]") (citing Washington v. Washington Hosp. Ctr., 579 A.2d 177, 188 (D.C.1990)).
[10] The settlement agreement provided that Paul, the plaintiff, would stipulate to GWU's tortfeasor status in the event Dr. Bier sued GWU for contribution. As Dr. Bier did not sue GWU for contribution, Paul was not required to stipulate, along with GWU, to its joint tortfeasor liability. The record contains no indication that Paul sought to enter into a stipulation with GWU that it had committed, jointly with Dr. Bier, medical malpractice with respect to her.
[11] It is indeed anomalous that in a case where both the plaintiff and the settling defendant desire application of a pro rata credit on the basis of GWU's status as a joint tortfeasor, they have not produced the necessary stipulation. At least a partial answer may be found in that in this case, as opposed to in Berg, GWU and the plaintiff disagree on which one of them should receive the benefit of the pro rata credit. We note that although the settlement agreement covers in detail Paul's financial responsibility to indemnify GWU in the event that Dr. Bier claimed contribution or indemnification against GWU, it is silent on the parties' respective rights in the situation that developed here, where it was GWU, not Dr. Bier, making a claim for contribution.
[12] Thus, we disagree with GWU that its motion should have been allowed in order to conform the pleadings to the evidence under Civil Rule 15(b) because the "only relevant factual issue is whether Dr. Bier is liable to Ms. Paul."
[13] There is at first blush a question whether, at the time that GWU sought to file a cross-claim against Dr. Bier, it was a "party" to the lawsuit as it had been dismissed with prejudice pursuant to the settlement agreement. See Civ. R. 13(g) (2000) ("A pleading may state as a cross-claim any claim by 1 party against a co-party arising out of the transaction or occurrence that is the subject matter" of the litigation) (emphasis added). Were the claim otherwise appropriate and timely, however, we do not believe that the fact of dismissal of one defendant should preclude GWU from pursuing its contribution claim as a cross-claim in light of our liberal pleading rules. Cf. Hall v. George A. Fuller Co., 621 A.2d 848, 850-51 (D.C.1993) (holding cross-claim for contribution properly dismissed where plaintiff had dismissed all of its claims against all defendants because cross-claim is dependent upon plaintiff's original claim). With the same purpose of achieving substantial justice, if GWU's late cross-claim was properly denied, a separate complaint for contribution also would be subject to a defense of laches or estoppel. Cf. Chappelle v. Sharp, 112 U.S.App.D.C. 182, 183, 301 F.2d 506, 507 (1961) (per curiam), cert. denied, 370 U.S. 903, 82 S.Ct. 1250, 8 L.Ed.2d 400 (1962). (plaintiff's suit seeking reinstatement as civil servant barred by laches when brought thirty-four and one half months after final administrative action on removal)(citing Arant v. Lane, 249 U.S. 367, 372, 39 S.Ct. 293, 63 L.Ed. 650 (1919)).
[14] It has been said with respect to accrual for statute of limitation purposes that "the statute of limitations begins to run against the right to contribution only from the time of the disproportionate discharge of the common obligation by one of the common obligors." Bair, 96 A.2d at 510 & n. 5 (citing Knell v. Feltman, 85 U.S.App.D.C. 22, 25, 174 F.2d 662, 665 (1949)).
[15] The rule is also fair to plaintiffs. See Shannon, supra note 9, 696 A.2d at 1368 (noting that a defendant's claim to a pro rata credit is viewed more favorably when it is swiftly asserted as a plaintiff is entitled to the "earliest possible notice of a defendant's intent to claim a pro rata credit but also must have an opportunity to develop the record in opposition to the claim") (citing Washington, supra note 9, 579 A.2d at 188).
[16] GWU maintains that any prejudice to Dr. Bier resulting from its post-verdict claim for contribution is outweighed by the fact that Dr. Bier, the only adjudicated tortfeasor, will owe nothing towards the verdict after the application of a pro tanto credit. See Hall, 621 A.2d at 850 & n. 3 (noting that right of contribution is an equitable remedy which arises among joint tortfeasors to promote fairness, by distributing plaintiff's losses equally among wrongdoers, and deterrence, by ensuring that all responsible parties share in cost of wrongdoing). However, as this court explained in Berg, "making particular credit rules contingent upon" whether a party is unjustly enriched "would only increase uncertainty and make it even more difficult for litigants to negotiate settlements." 673 A.2d at 1257. Moreover, in this case the jury was not asked to determine whether GWU was negligent. GWU has not been exonerated; it merely settled to avoid the risk of litigation. By seeking contribution, however, GWU now concedes that it is a tortfeasor. Therefore, although GWU is not an adjudicated tortfeasor, we have no basis to assume that it is inequitable for it to have paid $2,000,000 to Paul. Cf. Rose, 163 U.S.App.D.C. at 248, 501 F.2d at 808 (declining to sustain a pro tanto credit "in an amount exceeding the pro rata share of the verdict ascribable to the settling defendants," who were found by the trial court not to be joint tortfeasors, because the nonsettling defendantthe only one negligentwould have been unjustly enriched).
[1] In Berg, the interests of the plaintiff and the settling tortfeasor hospital were aligned.
[2] As we have seen in Berg and in this appeal, however, settling tortfeasors can protect themselves contractually in the event they are called upon for contribution. See ante at note 11.
[3] Traditionally, the Restatement had taken no position on the matter. See RESTATEMENT (SECOND) OF TORTS § 886A & cmt. m. The Uniform Law Commissioners have been of various minds on the subject, sequentially adopting each of the three solutions, in 1939, 1955, and 1977. See id. "Case authorities and statutes are also divided and there is no semblance of a consensus." Id. In 1999, recognizing that "no perfect method exists for apportioning liability among a plaintiff, a settling tortfeasor and a nonsettling tortfeasor," the Restatement adopted application of a credit "by the comparative share of damages attributed to a settling tortfeasor who otherwise would have been liable for contribution" to a nonsettling tortfeasor, even if it results in the plaintiff's recovering more than the verdict awarded by the jury. RESTATEMENT (THIRD) OF TORTS, § 16 & cmts. c. & e. Contrary to our jurisprudence, a nonsettling tortfeasor would have no right of contribution against a settling tortfeasor Id., § 23 cmt. c.
[4] On the other hand, the plaintiff can properly claim an interest in contesting application of a pro rata credit where its application would reduce the plaintiff's actual receipt of compensation below the jury verdict, i.e., where the plaintiff settled for less than the settling tortfeasor's equitable share, as measured by the jury verdict. See District of Columbia v. Shannon, 696 A.2d 1359, 1368 (D.C.1997). But see Martello, 112 U.S.App. D.C. at 132, 300 F.2d at 724 (in cases where application of a pro rata credit will yield the plaintiff less than the jury verdict, she has no cause to complain because "by [her] settlement, the plaintiff has sold one-half of [her] claim for damages").
[5] Although the result in Berg was to allow the fully satisfied plaintiff to receive a windfall, the court did not come to that conclusion, as the dissent suggests, because such a result "is preferable to a similar windfall" for the defendant who has been adjudicated to be negligent. Rather, Berg explains that the windfall to the plaintiff is the result of application of the neutral principle announced in Martello, by which the Berg division was bound, see M.A.P. v. Ryan, 285 A.2d 310 (1971), not moral outrage because the nonsettling defendant might end up paying less than its fair share. 673 A.2d at 1257 ("We are persuaded, as the Supreme Court was in McDermott, that consistency with established precedent applicable to settlement with joint tortfeasors weighs in favor of applying Martello, not the one satisfaction rule in Snowden, to the unusual facts of this case.") (referring to Snowden v. D.C. Transit Sys., Inc., 147 U.S.App. D.C. 204, 454 F.2d 1047 (1971)).
[6] The Uniform Contribution Among Tortfeasors Act, adopted by a majority of the states, prohibits contribution to a settling tortfeasor from another tortfeasor "whose liability ... is not extinguished by the settlement." RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY § 23, Reporters' Note on Comment h (quoting § 2(3) of the 1939 version and § 1(d) of the 1955 version of the Uniform Contribution Among Tortfeasors Act). The reporters of the Restatement explain that the "clear implication is that a settlor can obtain contribution when the settlement extinguishes the liability of the other tortfeasor." Id. Cf. id. (noting that three states, New York, Texas and Minnesota, do not permit settlors to obtain contribution). The Restatement provides that the liability of the person against whom contribution is sought may be extinguished either by obtaining a release in favor of the nonsettlor or by satisfying the judgment. Id. § 23 cmt. b. Our holding in Berg would appear to preclude the settling tortfeasor's right to contribution under the Restatement's proposal because Berg dictates payment of the nonsettling tortfeasor's pro rata share to the plaintiff, so that settlement would not have de facto extinguished the nonsettling tortfeasor's liability to plaintiff. The new Restatement provision requiring a showing "only that the settlement was reasonable," id. § 23 cmt. h., also would overturn "the essential prerequisite for entitlement to contribution ... that the parties be joint tortfeasors," District of Columbia v. Washington Hosp. Ctr., 722 A.2d 332, 336 (D.C.1998) (en banc).
[7] The settlement amount could, of course, be increased if the nonsettling tortfeasor sues for contribution. It is usual for settlement agreements to provide, however, that the plaintiff will indemnify the settling tortfeasor against such an eventuality. See opinion of the court, ante at note 11. But see RESTATEMENT, supra note 5, § 23 cmt. i. (precluding right of contribution against a settling tortfeasor).
[8] The greatest incentive to settlement is provided if settlement automatically extinguishes not only the plaintiff's claim, but also both joint tortfeasors' rights to contribution. This has been considered also to provide a risk of collusion between the plaintiff and the settling tortfeasor, leading to the requirement of a "fairness hearing" on the terms of the settlement before it can be deemed to preclude the nonsettlor's right of contribution.
[1] In my opinion, these issues are basically legal in nature, and we should review the trial judge's rulings de novo. Dr. Bier's claim that he relied to his detriment on certain authorities, see Part IV B, infra, could theoretically raise issues of fact. I believe, however, for reasons stated below, that this claim fails as a matter of law.
[2] The District of Columbia is not a comparative negligence jurisdiction. If it is decided that both GWU and Dr. Bier must contribute to making Ms. Paul whole, there is no reason to require one of the defendants to pay more than the other must pay.
[3] I see no relevance to the fact that Dr. Bier has not stipulated to anything.
[4] The precise question presented here does not appear to have been squarely raised in either Early Settlers or Taylor. The statement on the issue in McKenna was not a part of the holding. Rose was decided after M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971), and is not binding on this court. See Berg, supra, 673 A.2d at 1253 n. 17.
[5] To be sure, "a cross-claim need not be mature at the time the cross-claim is originally asserted." Glaziers and Glassworkers Union Local 252 Annuity Fund v. Newbridge Secs., Inc., 823 F.Supp. 1188, 1190 (E.D.Pa.1993) (citing 6 WRIGHT, MILLER & KANE, supra, § 1431). Glaziers arguably stands for the proposition that GWU had the right to file a cross-claim before the disposition of Ms. Paul's claim against Dr. Bier, because Dr. Bier was then a party who "may be liable to GWU," as specified in Rule 13(g). That GWU had the right to act earlier, however, does not mean that its filing of a cross-claim after Dr. Bier's liability to Ms. Paul was adjudicated was untimely. As noted in WRIGHT, MILLER & KANE, supra, no time limit is set forth in Rule 13(g), and equitable principles control.
[6] During oral argument, Dr. Bier's attorney was questioned intensively as to what authorities he claimed to have relied upon for this proposition and other related ones. Counsel was unable to provide a meaningful response to these questions simply because there were no such authorities.
[7] As we have noted, see p. 45, supra, Dr. Bier's position also assumed, without basis in authority, that GWU would not be permitted to file a cross-claim after the completion of the trial between Ms. Paul and Dr. Bier. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1149653/ | 556 So.2d 1261 (1990)
Gerald H. SANDERS, Jr. and Gene Ellen Sanders
v.
Jody T. COLLINS, Allstate Insurance Company and State Farm Mutual Automobile Insurance Company.
No. 89-C-2814.
Supreme Court of Louisiana.
January 19, 1990.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1076311/ | IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
ROBERT PERRY SANDY )
FILED
AUSBROOKS, JR., )
) May 21, 1999
Petitioner/Counter-Respondent/ ) Williamson Chancery No. 20223
Appellee, ) Cecil Crowson, Jr.
v. ) Appellate Court Clerk
) Appeal No. 01A01-9803-CH-00114
BONITA LYN (AUSBROOKS) )
MOORE, )
)
Respondent/Counter-Petitioner/ )
Appellant. )
APPEAL FROM THE CHANCERY COURT OF WILLIAMSON COUNTY
AT FRANKLIN, TENNESSEE
THE HONORABLE HENRY DENMARK BELL, CHANCELLOR
For the Petitioner/Counter-Respondent/ For the Respondent/Counter-Petitioner/
Appellee: Appellant:
Robert Perry Sandy Ausbrooks, Jr., Pro Se Sidney S. F. Bennett
Baton Rouge, Louisiana Nashville, Tennessee
AFFIRMED
HOLLY KIRBY LILLARD, J.
CONCURS:
BEN H. CANTRELL, P.J., M.S.
WILLIAM BRYAN CAIN, J.
OPINION
This case involves a post-divorce proceeding to modify child support. The husband lost his
job and filed a petition to reduce child support. The trial court held the husband’s petition in
abeyance for a period of time and later reduced the husband’s child support obligation retroactive
to the filing of the petition. The wife appeals, arguing that the trial court improperly made a
retroactive modification of child support. We affirm.
Respondent/Appellant Bonita Lyn Moore (“Wife”) and Petitioner/Appellee Robert Perry
Sandy Ausbrooks, Jr. (“Husband”) were divorced, and on March 30, 1994 Husband was ordered to
pay $1,600 per month child support for the parties’ three children. At that time, Husband was a
regional manager with Allstate Insurance Company (“Allstate”) and child support was based upon
his income of $6,600 per month. On March 20, 1996, Husband filed a petition to reduce his child
support obligation, based on the emancipation of one of the children and a decrease in his income.
The parties dispute the facts regarding Husband’s decrease in income. At a hearing on June
18, 1996, Husband testified he was involuntarily laid off from his position at Allstate in July 1995,
and that he subsequently formed an independent insurance agency. Wife argued that Husband
voluntarily left his position with Allstate to form the independent agency. In an order entered on
August 23, 1996, the trial court found that the oldest child had reached the age of majority and set
child support at $1,481 per month for the parties’ two remaining minor children. The child support
award was based on Husband’s “prior ability to earn” $6,600 per month. In addition, the trial court
held that the issue of reducing child support based on a decrease in Husband’s income was “reserved
as [it is] considered premature.” The trial court noted that “[t]hese items may be addressed in the
future by the filing of an amended and supplemental petition, which would relate back to the original
petition for possible retroactive application.” The trial court declined to award Wife attorney’s fees.
On November 25, 1997, Husband filed an amended and supplemental petition to modify
child support, alleging a decrease in monthly income greater than fifteen percent. At a hearing on
January 14, 1998, Husband again testified that he was involuntarily laid off from his position at
Allstate. The record reflects that he received severance benefits from Allstate of $5,794.47 per
month until March 1996. The record also indicates that in September 1995, Husband started an
independent insurance agency and represented American National Insurance Company (“American
National”) as an independent agent. Beginning in October 1995, Husband received a monthly
advance on commissions of $2,765 from American National; this continued for four months. For
the next two months, Husband received $2,262 per month from American National as a draw against
commissions. Subsequently, in March 1996, American National suspended Husband’s advances
against his commissions. During the period of time in which Husband was receiving from American
National advances against commissions, his earned commissions were not sufficient to cover the
advances. Consequently, by March 1996, Husband owed American National $13,152.74. At the
November hearing, Wife again contended that Husband voluntarily left his position at Allstate and
submitted into evidence Husband’s contract with American National, dated June 15, 1995. Husband
testified that he interviewed with American National in May or June 1995, but did not sign the
contract at that time. He testified that he did not put the June 15 date on the contract. At the end of
July 1995, he received verbal notice that Allstate would eliminate his job position as part of its
reduction in force.
In an order entered February 12, 1998, the trial court held that Father “through no fault of
his own” lost his employment in July 1995. In addition, the trial court found, in part:
[T]hat for the period of time from March 20, 1996, through January, 1998, Father had
suffered a significant variance in his income sufficient to warrant a reduction in his
child support to $823.00 per month based upon his average earnings of $3,418.00 per
month. Accordingly, from the period of March, 1996, through January, 1998,
Father’s child support shall be retroactively reduced from $1,481.00 per month to
$823.00 per month. Said retroactive reduction results in a $658.00 per month credit
to Father for 22 months which totals $14,476.00. Father shall receive said credit in
the form of a reduction in his current child support in the amount of $658.00 per
month for the next 22 months.
From this decision, Wife now appeals.
On appeal, Wife argues that Husband voluntarily left Allstate, resulting in underemployment
in contravention of the child support guidelines. Wife contends that the trial court erred in
continuing Husband’s original petition to reduce child support, erroneously allowed Husband to file
a supplemental petition, and improperly ordered a retroactive reduction in child support. Wife also
argues that the trial court erred in declining to grant her request for attorney’s fees incurred as a
result of the petitions and hearings. In addition, Wife seeks attorney’s fees for this appeal.
Our review is de novo upon the record of the trial court, accompanied by a presumption of
correctness of the findings of fact unless the preponderance of the evidence is otherwise. See Tenn.
R. Civ. P. 13(d). Questions of law are reviewed de novo with no presumption of correctness. See
Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).
2
Wife argues first that the evidence preponderates against the trial court’s finding that
Husband lost his job with Allstate “through no fault of his own.” She maintains that Husband quit
his job at Allstate in order to start his own independent insurance agency. In support of her
contention, Wife relies on Husband’s contract with American National, dated June 15, 1995, over
a month before Husband was informed by Allstate that he would be laid off. Husband testified that
he interviewed with American National in May or June but that he did not sign the contract at that
time. Husband testified that he did not date the contract. He noted that the contract with American
National was not effective until September 1, 1995, and that he was not notified of his termination
by Allstate until the end of July 1995. In addition, it is undisputed that Husband received a
severance package from Allstate. We recognize “the well-established principle that the trial court
is in the best position to assess the credibility of the witnesses; accordingly, such determinations are
entitled to great weight on appeal.” Quarles v. Shoemaker, 978 S.W.2d 551, 553 (Tenn. App. 1998)
(citing Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. App. 1995); Bowman v. Bowman,
836 S.W.2d 563, 566 (Tenn. App. 1991)). Viewing the record as a whole, the evidence does not
preponderate against the trial court’s finding that Husband lost his job through no fault of his own.
The evidence supports the trial court’s conclusion that Husband’s job change created a significant
variance in his income and warranted a modification in child support.
Wife also argues that the trial court erred in holding open Husband’s first petition to modify
child support, and, after a second petition was filed, reducing Husband’s child support obligation
retroactive to the date of the filing of the first petition. Wife maintains that retroactive modification
of child support is prohibited, citing Rutledge v. Barrett, 802 S.W.2d 604 (Tenn. 1991).
In Rutledge, the Court observed that “[r]etroactive modifications are plainly unauthorized;
prospective modifications can be made, but only after notice as provided in [Tennessee Code
Annotated 36-5-101] subsection (a)(5). Hence, the trial court in this case could not reduce amounts
that accrued prior to the filing of the father's 1988 cross-petition . . . .” Id. at 606 (emphasis added);
see also Pera v. Peterson, No. 72, 1990 WL 200582, at *2 (Tenn. App. Dec. 14, 1990); State v.
Morris, 1990 WL 2867 (Tenn. App. Jan. 19, 1990) (citing 87-162 Tenn. Op. Atty. Gen. 3823
(1987)). Tennessee Code Annotated § 36-5-101(a)(5) states in pertinent part:
Any judgment for child support shall be a judgment entitled to be enforced as any
other judgment of a court of this state . . . . Such judgment shall not be subject to
3
modification as to any time period or any amounts due prior to the date that an action
for modification is filed . . . .
Tenn. Code Ann. § 36-5-101(a)(5) (Supp. 1998) (emphasis added). Thus, under the statute, a
modification of child support is prohibited if it pertains to a time period prior to the filing of the
petition to modify.
In this case, Husband’s first petition to modify was filed on March 20, 1996. The trial court’s
August 23, 1996 order on the first petition left open the issue of modification of child support
because the trial court found that the issue was “premature.” The trial court’s action in holding open
this issue was sua sponte. It should be noted that the record does not indicate that Husband filed a
“prophylactic” petition to modify, that is, a petition filed as a precautionary measure, with the intent
that the trial court hear the petition only if and when Husband’s income decreased substantially. In
March 1996, when the first petition was filed, Husband’s severance pay from Allstate and the
advancements from American National were scheduled to terminate. Husband owed American
National over $13,000 for advances paid in excess of earned commissions. Husband’s attorney did
not ask the trial court to hold open the issue of modification of child support; the record indicates
that both parties expected the issue to be determined at that time. However, at that time, the trial
court found that it was unable to determine Husband’s future income. Under these circumstances,
the trial court’s action in holding open Husband’s petition to modify child support and later ordering
a modification retroactive to the filing of the first petition, while not customary, did not amount to
a retroactive modification prohibited by Tennessee Code Annotated § 36-5-101. The decision of the
trial court is affirmed.
Wife also appeals the trial court’s denial of her request for attorney’s fees for the trial. After
review of the record, we find that the trial court did not abuse its discretion in declining to award
Wife attorney’s fees. See Threadgill v. Threadgill, 740 S.W.2d 419, 426 (Tenn. App. 1987); Wright
v. Wright, No. 01A01-9001-CV-00019, 1990 WL 84032, at *5 (Tenn. App. 1990). In addition,
pursuant to Tennessee Code Annotated § 36-5-103(c), Wife’s request for attorney’s fees for this
appeal is denied.
The decision of the trial court is affirmed. Costs are assessed against the Appellant, for
which execution may issue if necessary.
4
HOLLY KIRBY LILLARD, J.
CONCUR:
BEN H. CANTRELL, P.J., M.S.
WILLIAM BRYAN CAIN, J.
5 | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276237/ | 331 S.W.3d 419 (2010)
EXXON CORPORATION and Exxon Texas, Inc., Petitioners,
v.
EMERALD OIL & GAS COMPANY, L.C., Respondent.
No. 05-0729.
Supreme Court of Texas.
Argued February 13, 2007.
Decided December 17, 2010.
Rehearing Granted November 20, 2009.
*420 Shannon H. Ratliff, Marla Diane Broaddus, Ratliff Law Firm, P.L.L.C., Karen L. Watkins, Patton G. Lochridge, William T. George, McGinnis Lochridge & Kilgore, L.L.P., Austin, S. Jack Balagia Jr., Exxon Mobil Corp., Byron C. Keeling, Keeling & Downes, P.C., Edward John "Jack" O'Neill Jr., Howrey, L.L.P., Houston, for Petitioner.
William J. Joseph Jr., Candace Beth Kaiser Eindorf, Howrey, L.L.P., Alice Oliver-Parrott, Alice Oliver-Parrott, P.C., Maria Teresa Arguindegui, Maria Teresa Arguindegui, P.C., Eileen O'Neill, Ware Jackson Lee & Chambers, LLP, Houston, Deborah G. Hankinson, Hankinson Levinger LLP, Dallas, Elana S. Einhorn, The University of Texas School of Law, Austin, for Respondent.
Zachary S. Brady, Zachary S. Brady, P.C., Lubbock, for Amicus Curiae.
Justice WAINWRIGHT delivered the opinion of the Court.
After issuing our opinion, we granted respondent's motion for rehearing on November 20, 2009 and obtained further briefing from the parties. Without further oral argument, we withdraw our opinion of March 27, 2009 and substitute the following opinion. Our judgment remains unchanged.[1]
In this oil and gas dispute, we determine whether section 85.321 of the Texas Natural Resources Code allows a subsequent mineral lessee to maintain a cause of action against a prior lessee for damages to the mineral interest that occurred prior to the time the subsequent lessee obtained its interest. We hold that section 85.321 creates a private cause of action that does not extend to subsequent lessees. Because the plaintiff in this case owned no interest in the mineral leases when the prior lessee allegedly damaged the interest, the plaintiff lacks standing to assert a cause of action under section 85.321.[2] Accordingly, we reverse the court of appeals' judgment. Today, we also issue our opinion in the rehearing of Exxon Corp. v. Miesch, the companion to this case. ___ S.W.3d ___ (Tex.2010) (reh'g op.).
I. FACTUAL AND PROCEDURAL BACKGROUND
In the 1950s, Humble Oil & Refining Company (Humble) held mineral leases with Mary Ellen and Thomas James O'Connor on several thousand acres in Refugio *421 County, Texas (O'Connor Field or Field). Exxon Texas, Inc. succeeded Humble's interest in the leases. Under the leases, Exxon paid a fifty percent royalty, which was higher than the royalty Exxon paid on an adjoining tract. In the 1970s and 1980s, Exxon unsuccessfully sought to renegotiate the royalty percentage with the royalty owners. Deciding that it was no longer sufficiently profitable to continue operating the O'Connor Field, Exxon systematically plugged and abandoned the wells, completing its abandonment of the Field in 1991.
In 1993, Emerald Oil & Gas Company, L.C. (Emerald) obtained leases for a portion of the O'Connor Field and attempted to re-enter the wells. Emerald encountered unexpected difficulties when it tried to re-enter the wells. Emerald alleges that Exxon caused these difficulties by improperly plugging and intentionally sabotaging the wells by putting considerable quantities of metal, unidentifiable refuse, and environmental contaminants into the wells, placing nondrillable material in the wells, and leaving cut casing in the plugged wells. In 1996, Emerald, on behalf of its working-interest owner, Saglio Partnership Ltd., sued Exxon on six claims: (1) breach of a statutory duty to properly plug a well, (2) breach of a statutory duty not to commit waste, (3) negligence per se, (4) tortious interference with economic opportunity, (5) fraud, and (6) negligent misrepresentation. The royalty owners[3] intervened, alleging similar claims.
Exxon moved for partial summary judgment against Emerald and the royalty owners on grounds that: (1) Exxon has no obligation to potential future lessees; (2) there is no private cause of action for breach of a statutory duty to plug a well in a particular way; (3) there is no private cause of action for breach of any statutory duty not to commit waste; and (4) the facts alleged do not give rise to a claim for tortious interference with economic opportunity; but (5) in the alternative, if the royalty owners have a claim against Exxon for failure to plug the wells properly, it sounds in contract only, not in tort.
The trial court granted portions of Exxon's motion for partial summary judgment, concluding that under sections 85.045, 85.046, 85.321, and 89.011 of the Texas Natural Resources Code and Title 16 section 3.14(c)(1) of the Texas Administrative Code, Exxon owed no statutory duty to potential future lessees, including Emerald. Accordingly, the trial court granted partial summary judgment in Exxon's favor on Emerald's three statutory claims of (1) negligence per se, (2) breach of a statutory duty to plug a well properly, and (3) breach of a statutory duty not to commit waste. The trial court then severed those claims and proceeded to trial on Emerald's three remaining claims against Exxon: fraud, negligent misrepresentation, and tortious interference. The court also denied Exxon's motion for summary judgment on the royalty owners' claims and tried those claims. This appeal arises from Emerald's challenge to the trial court's summary judgment on the statutory claims.
The court of appeals reversed and remanded Emerald's three statutory claims to the trial court, holding that section 85.321 imposes a duty on current lessees to *422 future lessees and thus provides a basis for a cause of action against Exxon. Exxon petitioned this Court for review. We now review the trial court's summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Our opinion on rehearing in Exxon v. Miesch, also issued today, decides the appeal of claims that were tried. ___ S.W.3d ___ (Tex.2010) (reh'g op.).
II. DISCUSSION
A. Private Cause of Action
Two of Emerald's claims against Exxon invoke statutory dutiesbreach of statutory duty to plug a well properly and breach of statutory duty not to commit waste. Emerald's pleadings cite section 85.321 of the Texas Natural Resources Code as the basis for its standing to bring the first claim and refers to other related provisions of the Code in support of standing to bring the second claim. Section 85.321, titled "Suit for Damages," reads:
A party who owns an interest in property or production that may be damaged by another party violating the provisions of this chapter that were formerly a part of Chapter 26, Acts of the 42nd Legislature, 1st Called Session, 1931, as amended, or another law of this state prohibiting waste or a valid rule or order of the commission may sue for and recover damages and have any other relief to which he may be entitled at law or in equity. Provided, however, that in any action brought under this section or otherwise, alleging waste to have been caused by an act or omission of a lease owner or operator, it shall be a defense that the lease owner or operator was acting as a reasonably prudent operator would act under the same or similar facts and circumstances.
TEX. NAT. RES.CODE § 85.321. The court of appeals held that section 85.321 creates a private cause of action for damages resulting from statutory violations. We agree.
In construing statutes, this Court starts with the plain language of the statute. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). The language of section 85.321 clearly creates a private cause of action. A party whose interest in property is damaged by another party violating provisions of a conservation law of this state or a Texas Railroad Commission rule or order "may sue for and recover damages" and other relief to which the party may be entitled. TEX. NAT. RES.CODE § 85.321. Section 85.321 also expressly provides a defense to civil actions for lease owners and operators acting as a reasonably prudent operator would act under the same or similar circumstances, adding more credence to the conclusion that section 85.321 creates a private cause of action. Id.
This Court previously reached the same conclusion. In HECI Exploration Co. v. Neel, royalty owners sued their lessee for failing to notify them that the lessee sued the operator on an adjoining tract whose overproduction of oil, in violation of Railroad Commission rules, damaged the common reservoir. 982 S.W.2d 881, 884 (Tex. 1998). The court of appeals held that the lessee violated an implied covenant to notify the royalty owners of an intent to sue the offending operator. Id. at 884-85. This Court held no such implied covenant exists because the lessee's suit against the adjoining operator does not collaterally estop the royalty owners from suing separately under section 85.321. Id. at 890-91. "When a mineral or royalty interest owner is damaged by a violation of the conservation law of this state or a Railroad Commission rule or order, section 85.321 of the Texas Natural Resources Code also expressly provides for a damage suit against the offending operator." Id.
*423 Relying on Magnolia Petroleum Co. v. Blankenship, 85 F.2d 553, 556 (5th Cir. 1936) as persuasive authority, Exxon urges the Court to disregard HECI Exploration and hold that section 85.321's predecessor, article 6049c, did not create a private cause of action. Magnolia involved a dispute between two lessees producing from a common reservoir. Id. at 554. Magnolia produced oil from several wells on a tract of eighty-one acres while Blankenship had one well on half an acre. Blankenship had sunk his well without a permit. The Railroad Commission sued him, seeking a $1,000 penalty. Blankenship countered for a certificate authorizing him to operate the well. The trial court authorized the penalty and also ordered the certificate of operation. Magnolia appealed the decision, contending that the trial court did not have authority to order the certificate of operation and moved for an injunction against Blankenship under section 13 of article 6049c. Id. at 554, 556. Interpreting the statute, the Fifth Circuit held that while the first sentence of section 13 "purports to give no new cause of action," the second sentence gives a producer the right to sue for damages and appropriate equitable remedies, including an injunction. Id. at 556. However, the court determined that an injunction would have been inequitable in that case because Blankenship's single well did not produce as much oil as Magnolia's many wells. Id. at 554. Instead, Magnolia should have requested that the Railroad Commission regulate the distribution of oil to each operator. Id. at 556. Exxon argues that Magnolia stands for the proposition that the Railroad Commission has primary jurisdiction to regulate the allocation of oil between producers from a common reservoir and prohibits a private cause of action under what is now section 85.321. We agree Magnolia explains that, at the time, statutes gave the Railroad Commission primary jurisdiction to adjust correlative rights of oil and gas owners in a common reservoir, but we disagree on the latter assertion. Exxon's reading overstates Magnolia's holding. Magnolia reasons that, compared to the Commission's proration of production, allowing such allocation to be performed by the random institution and adjudication of private lawsuits would be problematic. Surely that is correct. But Magnolia does not hold that section 85.321's predecessor bars private lawsuits for a mineral owner's recovery of damages. Magnolia does not answer that question except to say that if section 85.321's predecessor created such a private cause of action, it did not provide a right to an injunction when the evidence fails to establish an equitable basis for doing so. Id. at 556.
Furthermore, the Fifth Circuit has held on more than one occasion, not inconsistent with Magnolia, that the language in section 85.321's predecessor (section 13 of article 6049c) does, in fact, create a private cause of action. Turnbow v. Lamb, 95 F.2d 29, 31 (5th Cir.1938) ("Article 6049c, section 13, Vernon's Civil Stat. Texas, expressly recognizes and preserves to an injured party his cause of action for damages `or other relief' against a violator of the oil production laws."); see Sun Oil Co. v. Martin, 330 F.2d 5, 5 (5th Cir.1964) (adopting the lower court's reasoning in Sun Oil Co. v. Martin, 218 F.Supp. 618, 621-22 (S.D.Tex.1963) (explaining that a violation under section 13 of article 6049c "may give rise to an action for damages")); see also Ivey v. Phillips Petroleum Co., 36 F.Supp. 811, 816 (S.D.Tex.1941) (holding, in accord with Fifth Circuit law, that a plaintiff does not have standing to sue pursuant to section 13 of article 6049c if no Railroad Commission regulation or state law violation occurred). Although section 85.321 and section 13 of article 6049c are not identical, the pertinent parts of the two *424 laws are the same. Act effective August 12, 1931, 42nd Leg., 1st C. S., ch. 26, § 13, 1931 Tex. Gen. Laws 46, 53, repealed by Act effective September 1, 1977, 65th Leg., R.S., ch. 871, § 1, 1977 Tex. Gen. Laws 2345, 2527. Thus, we do not agree that Magnolia interprets section 13 of article 6049c to prohibit a private cause of action.
B. Standing of Subsequent Lessees
Having concluded that section 85.321 creates a private cause of action, we examine whether Emerald's status as a subsequent lessee impacts its standing to bring a cause of action under section 85.321. The Legislature gave the right to a private cause of action to a person who "owns an interest . . . that may be damaged by another party violating the provisions of this chapter . . . ." TEX. NAT. RES. CODE § 85.321. Exxon argues that "violating" is a present tense term that indicates an injury concurrent with ownership, whereas Emerald maintains that "violating" would include any party that had violated the statute at some point in time. The plain language is unclear as to whether concurrent ownership is required or whether subsequent interest owners could also maintain a cause of action. The participle phrase "violating the provisions of this chapter" could indicate a continuous actiona party who has violated, continues to violate, or is violating the provision, which would open the cause of action to a wider range of interest owners. Id. The statute could also be interpreted as another party who is violating the provisions of this chapter, which suggests a temporal limitation on the private cause of action. Because the text itself is unclear, we look to section 85.321's statutory predecessor and the surrounding context for guidance. See Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex. 2006).
Section 85.321's statutory predecessor, section 13 of article 6049c, preserved common law standards:
Nothing herein contained or authorized and no suit by or against the [Railroad] Commission shall impair or abridge or delay any cause of action for damages, or other relief, any owner of any land or any producer of crude petroleum oil or natural gas, or any other party at interest, may have . . . .
Act effective August 12, 1931, 42nd Leg., 1st C.S., ch. 26, § 13, 1931 Tex. Gen. Laws 46, 53, repealed by Act effective September 1, 1977, 65th Leg., R. S., ch. 871, § 1, 1977 Tex. Gen. Laws 2345, 2527. Thus, part of the stated purpose of Chapter 26 was to prevent the Railroad Commission from infringing on existing causes of action under the common law. The language in sections 85.321 and 85.322 comes directly from section 13 of article 6049c.
For more than 100 years, this Court has recognized that a cause of action for injury to real property accrues when the injury is committed. See Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37 (1888). The right to sue is a personal right that belongs to the person who owns the property at the time of the injury, and the right to sue does not pass to a subsequent purchaser of the property unless there is an express assignment of the cause of action. Abbott v. City of Princeton, 721 S.W.2d 872, 875 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). "Accordingly, a mere subsequent purchaser [of the property] cannot recover for an injury committed before his purchase." Lay v. Aetna Ins. Co., 599 S.W.2d 684, 686 (Tex. Civ.App.-Austin 1980, writ ref'd n.r.e.); see also Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561, 562-63 (Tex.1936) (holding that a cause of action for damages to property resulting from a permanent nuisance accrues to the owner of the land at *425 the time the injury begins to affect the land, and mere transfer of the land by deed does not transfer the claim for damages). Therefore, under Texas common law, absent a conveyance of the cause of action, a subsequent owner cannot sue a prior owner for injury to realty before the subsequent owner acquired his interest. See Vann, 90 S.W.2d at 562-63; see also Haire v. Nathan Watson Co., 221 S.W.3d 293, 298 (Tex.App.-Fort Worth 2007, no pet.); Cook v. Exxon Corp., 145 S.W.3d 776, 781 (Tex.App.-Texarkana 2004, no pet.); Exxon Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex.App.-Tyler 2002, pet. denied); Senn v. Texaco, Inc., 55 S.W.3d 222, 225 (Tex.App.-Eastland 2001, pet. denied). Similarly, a subsequent lessee, like Emerald, can stand in no better shoes than a subsequent owner. If the Legislature intended to change this common law principle, it could have done so in the statute.
Were we to interpret section 85.321 to allow Emerald to sue Exxon as a prior lessee, we would expand the class of potential claimants beyond that allowed by common law and subsumed in the statute. Without explicit direction from the Legislature, we hesitate to adopt an interpretation of section 85.321 that would make any party who holds a mineral interest indefinitely liable to all subsequent interest holders for prior alleged damage to the land. The consequences of such an interpretation run contrary to the legislative intent to protect and encourage the development of Texas natural resources. See TEX. CONST. art. XVI, § 59. We are mindful of the consequences of a particular construction. See TEX. GOV'T CODE § 311.023(5); McIntyre, 109 S.W.3d at 745. Absent a legislative enactment clearly abrogating the common law, we conclude that Emerald does not have standing as a subsequent lessee to pursue a claim under section 85.321 for Exxon's alleged wrongful actions as a prior lessee.[4]See, e.g., Tooke v. City of Mexia, 197 S.W.3d 325, 342-43 (Tex.2006) (holding that TEX. LOC. GOV'T CODE § 51.075 abrogated City of Texarkana v. City of New Boston, 141 S.W.3d 778 (Tex.App.-Texarkana 2004)).
C. Negligence Per Se
Because our holding that a subsequent lessee has no standing to bring a claim under section 85.321 stems from common law principles, Emerald lacks standing to bring a negligence per se claim for the same reasons.
III. CONCLUSION
Accordingly, we reverse the court of appeals' judgment and render judgment that Emerald take nothing.
Justice GUZMAN and Justice LEHRMANN did not participate in the decision.
NOTES
[1] The Texas Comptroller of Public Accounts; Jerry Patterson, Commissioner of the Texas General Land Office and Chairman of the School Land Board; and Texas Oil & Gas Association filed amicus briefs on rehearing in this case.
[2] The original lessee did not assign its claim for damages to the property to the subsequent lessee.
[3] The current royalty owners who are petitioners in this case are: Morgan Dunn O'Connor, T. Michael O'Connor, Brien O'Connor, Kelly Patricia Dunn Schaar, Nancy O'Connor, Bridey Dunn Greeson, individually and on behalf of the Dunn-O'Connor Family Trust, Laurie T. Miesch, Jack Miesch, Michael L. Miesch, Molly Miesch Allen, and Janie Miesch Robertson.
[4] Emerald and the Commissioner of the Texas General Land Office contend on rehearing that the opinion "effectively says that Exxon is the only party that can sue Exxon for damage resulting from violations of the Natural Resource Code and Railroad Commission regulations." On the contrary, the opinion and the opinion on rehearing explain that persons who had an interest in the realty at the time of the damage to the interest have standing to sue under section 85.321 for the violations listed. Thus, the royalty owners in this case have standing to sue, and they did sue, but too late for at least some of the causes of action. See Exxon v. Miesch, ___ S.W.3d ___ (Tex.2010) (reh'g op.). Also, an assignee of the realty interest (at the time of the alleged damages) would have standing to sue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276244/ | 334 S.W.3d 16 (2008)
Thomas LEE, Helen Wilems, Individually and as Representative of the Estate of Felicia Marie Lee, Deceased, Hartford Casualty General Agency, Inc., Southern County Mutual Insurance Co., Copart of Houston, Inc., Copart of Texas, Inc., and Houston Copart Salvage Auto Auctions, LP, Appellants,
v.
GST TRANSPORT SYSTEM, LP, and Henry Daneford, Appellees.
No. 05-08-00118-CV.
Court of Appeals of Texas, Dallas.
October 1, 2008.
*17 Braden W. Sparks, Braden W. Sparks, P.C., Dallas, TX, for Appellant.
E. John Gorman, Ronald L. Bair, Bairhilty, PC, Houston, TX, for Appellee.
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
Opinion by Justice FRANCIS.
Two competing lawsuits arising out of a fatality collision were filed in district courts in Dallas and Madison counties. Both trial courts asserted dominant jurisdiction. This interlocutory appeal comes to us on an agreed order on a controlling question of law. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(d) (Vernon 2008). The issue presented is: "Under the `relation-back' and/or the `first-filed' doctrine(s), which is the court of dominant jurisdiction?" To answer the issue, we must decide whether the relation-back doctrine, embodied in section 16.068 of the Texas Civil Practice and Remedies Code, applies to a presuit discovery petition when determining which lawsuit was filed first. For reasons set out below, we conclude it does not. Consequently, we conclude the Dallas County case was the first-filed suit and affirm the trial court's order denying abatement.
Felicia and Thomas Lee were traveling south on Interstate 45 in Madison County when Thomas Lee lost control of his car, crossed the median, and collided with a northbound GST Transport Systems tractor-trailer *18 truck driven by Henry Daneford. Felicia Lee was killed on impact. Six weeks later, on October 10, 2006, Felicia's mother, Helen Wilems, filed a rule 202 petition in the 12th Judicial District Court in Madison County to take oral depositions of several GST employees and others to investigate a potential claim and for use in an anticipated suit by Wilems. See TEX.R. CIV. P. 202. The trial court granted the request and ordered the depositions of several GST employees, including Daneford.
One week later, on December 5, 2006, GST and Daneford filed a lawsuit in the 14th Judicial District Court in Dallas County against Thomas Lee; Wilems, individually and as representative of her daughter's estate; two insurance companies; and the salvage company with possession of the Lees' vehicle. GST and Daneford alleged Thomas Lee, a Dallas County resident, was negligent in the accident and sought damages for injuries to Daneford and property damage to the tractor-trailer rig. They also sought injunctive relief against all the defendants to preserve the vehicle driven by Thomas Lee.
Wilems then filed a "First Amended Petition" in Madison County under the same cause number as the presuit discovery petition, alleging a wrongful death claim against GST and Daneford. Both sides filed pleas to abate or dismiss the competing lawsuit in the respective county, arguing they were the first to file suit. In her plea in Dallas County, Wilems argued the filing of her wrongful death claim in Madison County related back to the date of the filing of her rule 202 petition, making her suit the first filed. Ultimately, both trial courts denied the pleas to abate and/or dismiss and, in their orders, asserted dominant jurisdiction. This appeal addresses the Dallas County order denying Wilems's plea in abatement.
We review the trial court's action in granting or denying a plea in abatement using an abuse of discretion standard. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988). The trial court abuses its discretion when it acts in an unreasonable and arbitrary manner, or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).
As a rule, when cases involving the same subject matter are brought in different courts, the court with the first-filed case has dominant jurisdiction and should proceed, and the other case should abate. Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex.2001). The obvious reasons for abatement are conservation of judicial resources, avoidance of delay, and "comity, convenience, and the necessity for an orderly procedure in the trial of contested issues," or, in other words, "to prevent races from court to court by vigilant counsel." Id. The first-filed rule also has several justifications, both jurisprudential and pragmatic. The jurisprudential reason is that once a matter is before a court of competent jurisdiction, "its action must necessarily be exclusive" because it is "impossible that two courts can, at the same time, possess the power to make a final determination of the same controversy between the same parties." Id. A pragmatic justification for the rule is efficiency in that proceedings earlier begun may be expected to be earlier concluded. Id. A final justification is fairnessin a race to the courthouse, the winner's suit should have dominant jurisdiction. Id.[1]
*19 Rule 202 allows a person to petition the court for an order authorizing the taking of an oral and written deposition to either perpetuate the testimony for use in an anticipated suit or to investigate a potential claim or suit. TEX.R. CIV. P. 202.1. The proceeding is not a separate, independent lawsuit, but is in aid of and incident to an anticipated suit. Office Employees Int'l Union Local 277 v. Southwestern Drug Corp., 391 S.W.2d 404, 406 (Tex. 1965) (interpreting predecessor rule); In re Clapp, 241 S.W.3d 913, 917 (Tex.App.-Dallas 2007, orig. proceeding); In re Raja, 216 S.W.3d 404, 407 (Tex.App.-Eastland 2006, orig. proceeding); Texacadian Energy, Inc. v. Lone Star Energy Storage, Inc., 829 S.W.2d 369, 372 (Tex.App.-Corpus Christi 1992, writ denied).
At the time GST and Daneford filed their lawsuit in Dallas County on December 5, 2006, Wilems had not brought any cause of action arising from the collision. Rather, she had sought presuit discovery to investigate facts relating to a potential claim. Consequently, the only issue before the Madison County district court at that time was whether to allow such discovery; it had not been asked to adjudicate any claims arising from the collision.
Nevertheless, Wilems argues her amended pleading (filed after the Dallas County suit) related back to the date of the filing of the rule 202 petition. Relying on rules of civil procedure 62 through 65, she argues that her amended petition filed in the same court under the same cause number superceded and supplanted her original rule 202 petition. Then, relying on section 16.068 of the Texas Civil Practice and Remedies Code, she argues that because the pleading was amended, it related back to the date of the original filing on October 10, 2006, rendering the Madison County suit the first filed.
We do not disagree that an amended pleading supersedes and supplants earlier pleadings. TEX.R. CIV. P. 65; Lee v. Na, 198 S.W.3d 492, 494 (Tex.App.-Dallas 2006, no pet.). And whether it is appropriate to allege a lawsuit for the first time in an "amended petition" in the same cause number as a rule 202 petition is not an issue we need to address. Even if appropriate, we do not agree that the relation-back doctrine, as embodied in section 16.068, can be read in this case to allow the "amended pleading" to relate back to the filing date of the rule 202 petition.
The relation-back doctrine, statutorily defined in section 16.068, originated as an equitable remedy designed to effectuate justice. Lovato v. Austin Nursing Ctr., Inc., 113 S.W.3d 45, 55 (Tex.App.-Austin 2003), aff'd, 171 S.W.3d 845 (Tex.2005). It is designed to "protect litigants from loss of their claims by a plea of limitations in cases where that would otherwise occur and therefore should be liberally construed." Id. Section 16.068 provides:
If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.
TEX. CIV. PRAC. & REM.CODE ANN. § 16.068 (Vernon 2008) (emphasis added).
In urging we apply section 16.068 to the circumstances in this case, Wilems asserts the purpose of rule 202 "allows a party to locate and preserve evidence before a claim is filed, while limitations requires that it be filed soon enough to allow the opposing party to do so while it is still available." *20 She then argues that since both the statute and rule "deal with the passage of time and the preservation of evidence," the relation-back doctrine "should not apply in one but not the other."
Even if we liberally construe a statute to achieve its purposes, we may not enlarge or alter the plain meaning of its language. Methodist Hosps. of Dallas v. Mid-Century Ins. Co. of Tex., 259 S.W.3d 358, 360 (Tex.App.-Dallas 2008, no pet.). In construing a statute, our objective is to determine and give effect to the Legislature's intent. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008). We look first to the statute's language to determine that intent, as we consider it a "fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent." Id. (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999)). If the statute's language is unambiguous, its plain meaning will prevail. Id.
The plain language of section 16.068 provides that an amended pleading "is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence." TEX. CIV. PRAC. & REM.CODE ANN. § 16.068. Thus, even if we accept the argument that the rule and statute share similar purposes, the plain language of the statute restricts its operation to negating a "plea of limitation" under the circumstances described in the section. Wilems does not claim that she stands to lose her cause of action on limitations grounds; rather, her complaint involves a question of where the lawsuit should be tried. Consequently, section 16.068 does not apply under the circumstances of this case.
We conclude the lawsuit filed in Dallas County on December 5, 2006 was the first filed. Accordingly, the trial court did not abuse its discretion in refusing to abate the case.
We affirm the trial court's order denying abatement.
NOTES
[1] There are exceptions to the dominant jurisdiction rule; however, in her brief, Wilems expressly states that none of the exceptions applies in this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330976/ | 188 S.E.2d 653 (1972)
14 N.C. App. 472
Doyle P. COOPER
v.
C. C. MASON, d/b/a C. C. Mason Chrysler Plymouth and Plymouth Division, Chrysler Motors Corporation.
No. 7230DC90.
Court of Appeals of North Carolina.
May 24, 1972.
*655 Stedman Hines, Bryson City, for plaintiff appellee.
Jones, Jones & Key by R. S. Jones, Jr., Franklin, for defendant appellant Mason.
Hudson, Petree, Stockton, Stockton & Robinson by James H. Kelly and J. Robert Elster, Winston-Salem, for defendant appellant Chrysler Motors Corp.
BRITT, Judge.
Did the court err in entering judgment in favor of plaintiff? We hold that it did.
First, we discuss plaintiff's theory of rescission of contract. Clearly, plaintiff was not entitled to recover of defendant Chrysler on this theory because there was no privity of contract between plaintiff and defendant Chrysler. Nor do we think plaintiff was entitled to recover of defendant Mason on this theory.
G.S. § 25-2-608(2) provides: "Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it." Plaintiff's evidence establishes that he accepted and used the vehicle until it was wrecked and at no time rejected it or tendered it to the seller to effect a rescission. The purchaser waives his right to rescind if, after discovery of the defect or fraud, he ratifies the sale by continuing to use the chattel for his own purposes. Insurance Co. v. Chevrolet Co., 253 N.C. 243, 116 S.E.2d 780 (1960). It would seem that seventeen months and 30,000 miles exceed a reasonable time for revocation of the purchase of the automobile under the most liberal interpretations of the term. Burkhimer v. Lindsay Furniture Co., 12 N.C.App. 254, 182 S.E.2d 834 (1971); cert. den., 279 N.C. 511, 183 S.E.2d 686 (1971).
As to plaintiff's warranty action, we need not decide if the written warranty pleaded by defendants and established by the evidence acted as a disclaimer of the implied warranty of fitness pleaded by plaintiff. Suffice to say, plaintiff's warranty action fails for lack of evidence of damages proximately resulting from defects at the time of sale. The evidence showed that after the wreck the left front wheel was broken; that the car had been driven over 30,000 miles; that a wheel bearing retaining ring was found 75 feet from the wrecked car; that tires wore out evenly in less than 8,000 miles and that defendant Mason made several adjustments to the car. In the absence of evidence sufficient to support a finding that a defect existed at the time of sale some seventeen months and 30,000 miles before, defendants were entitled to a dismissal. Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E.2d 392 (1955). See Coakley v. Ford Motor Co., 11 N.C.App. 636, 182 S.E.2d 260 (1971), cert. denied, 279 N.C. 393, 183 S.E.2d 244 (1971) for proximate cause under theory of negligence.
For the reasons stated, the judgment appealed from is
Reversed.
CAMPBELL and GRAHAM, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330990/ | 125 Ga. App. 460 (1972)
188 S.E.2d 175
METZEL
v.
CANADA DRY CORPORATION et al.
46635.
Court of Appeals of Georgia.
Argued October 5, 1971.
Decided January 6, 1972.
Rehearing Denied February 10, 1972.
Moffett & Henderson, F. Glenn Moffett, Jr., for appellant.
Neely, Freeman & Hawkins, J. Bruce Welch, Hurt, Hill & Richardson, Robert L. Todd, A. Timothy Jones, for appellees.
HALL, Presiding Judge.
Plaintiff in a personal injury action appeals from the judgment entered in accordance with a directed verdict for both defendants Canada Dry and Coca-Cola.
Plaintiff's evidence showed that as he was in a grocery store picking up a 6-pack carton of Canada Dry soda, the plastic roller between the layers of cartons snapped back and the vibrations caused a loose bottle of Canada Dry soda located somewhere to fall and break, injuring his foot. The roller in question was red, he believed, and therefore the property of Coca-Cola as Canada Dry uses green rollers. The store manager testified that the various bottling companies installed the plastic dividers and their own route men replenished and stacked the cartons about twice a week; that each company had a section with its own dividers where the route men generally put the company's products; that store customers were notorious for switching bottles from carton to carton to buy a mixed or odd lot; that when any store employee found a loose or misplaced bottle, he replaced it properly; that this problem had been somewhat alleviated by the introduction *461 of closed-top cartons; and that while there were probably better ways to display beverages, he considered this method safe.
1. The only allegations of negligence against Coca-Cola are that it installed and maintained its plastic rollers negligently. There is not a scintilla of evidence in the record to support these allegations, and there is some doubt that Coca-Cola rollers were even involved. The court did not err in directing a verdict for this defendant.
2. The only additional link-up with Canada Dry is that its products were involved and presumably the section in which plaintiff was injured was stacked by its route man. However, plaintiff's pleadings and evidence do not involve negligent stacking of cartons. He testified that the injury resulted from the fall of a separate, loose bottle. There is no evidence to account for how it came to be there. In the face of clear evidence that countless people had access to the display and that customers were constantly shifting bottles around, sending the issue to the jury would allow it to engage in the sheerest speculation. Lewis v. Drake, 116 Ga. App. 581 (158 SE2d 266); Southern Grocery Stores v. Greer, 68 Ga. App. 583 (23 SE2d 484).
Plaintiff's contention that the issue should have been presented under the doctrine of res ipsa loquitur is without merit. The essential element of "control of the instrumentality" is completely missing here. See Richmond County Hospital Authority v. Haynes, 121 Ga. App. 537 (174 SE2d 364).
Finally, his contention that it is negligent to package bottled drinks in open-top cartons is equally without merit. Because new packaging methods have been introduced does not make a jury issue out of a method used for countless years. In any event, the store manager testified that some customers also were tearing apart closed-top cartons in order to select a variety or to purchase odd lots. The jury would not be authorized to find that but for the use of open cartons, a bottle would not have been *462 loose to cause the injury. The court did not err in directing a verdict for Canada Dry.
Judgment affirmed. Eberhardt and Clark, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331046/ | 188 S.E.2d 731 (1972)
14 N.C. App. 356
In the Matter of Valerie Lenise WALKER.
No. 7218DC241.
Court of Appeals of North Carolina.
May 24, 1972.
*733 Atty. Gen. Robert Morgan by Asst. Atty. Gen. R. S. Weathers for the State.
Public Defender, Eighteenth Judicial District, Wallace C. Harrelson and Assistant Public Defender, Eighteenth Judicial District, J. Dale Shepherd, for the respondent appellant.
CAMPBELL, Judge.
The respondent assigns as error the denial of the motion to vacate the order entered 19 August 1971, in which Valerie was found to be an undisciplined child and placing her on probation, for that at said hearing she was not represented by counsel. In order to comply with due process in a juvenile proceeding, the right of the juvenile to be represented by an attorney must be considered and an attorney provided or there must be a proper waiver of this right. In re Garcia, 9 N.C.App. 691, 177 S.E.2d 461 (1970).
While the order of 19 August 1971 was defective, as based on a hearing where there was a failure to afford Valerie due process in that no attorney represented her or the right to such representation properly waived, nevertheless, the hearing at the October 1971 Session of the court was not *734 improper. A plenary hearing was held and evidence was offered to sustain findings of fact independent of the 19 August 1971 order.
At the October 1971 hearing Valerie was represented by counsel, and due process of law was afforded her.
Respondent further contends that this proceeding should have been dismissed for that G.S. § 7A-278 is unconstitutional particularly subsection (5) thereof.
G.S. § 7A-278(5) provides:
"`Undisciplined child' includes any child who is unlawfully absent from school, or who is regularly disobedient to his parents or guardian or custodian and beyond their disciplinary control, or who is regularly found in places where it is unlawful for a child to be, or who has run away from home."
Respondent cites no authority for the position taken. There is nothing vague or indefinite about the statute. It is quite similar in its provisions and purposes to the previous statute pertaining to juveniles. The previous statute was held to be constitutional and nothing would be gained by a repetition of what was said about the constitutionality of the juvenile act in the case of In Re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647.
We have considered the other assignments of error brought forward by the respondent and find them to be without merit.
We find that the respondent in the instant case had a fair hearing in October 1971, which fully met with due process of law, and the order entered by Judge Gentry was fully sustained by the evidence introduced and the facts found thereon.
No error.
MALLARD, C. J., and BROCK, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331047/ | 413 S.E.2d 79 (1991)
FUNERAL SERVICES BY GREGORY, INC., d/b/a the Kimball Funeral Home, Keith Gregory and Cassandra Miller Gregory, Plaintiffs Below, Appellants,
v.
BLUEFIELD COMMUNITY HOSPITAL, Dr. Naeem Qazi, and Other Unknown Individuals who Performed an Autopsy on the Deceased, and Other Unknown Individuals, Defendants Below, Appellees.
No. 19778.
Supreme Court of Appeals of West Virginia.
Submitted May 8, 1991.
Decided December 5, 1991.
James A. McKowen, Hunt & Wilson, Charleston, and Robert H. Carlton, Williamson, for appellants.
*80 Karen Speidel Rodgers, Kay, Casto, Chaney, Love & Wise, Charleston, for appellee, Bluefield Community Hosp.
Matthew P. Moriarty, Richard W. Stuhr, Robert L. Brandfass, Jacobson, Maynard, Tuschman & Kalur, Charleston, for appellee, Naeem Qazi, M.D.
Harold D. Brewster, Jr., Brewster, Morhous & Cameron, Bluefield, for appellee, Dr. Dennis Pullins.
BROTHERTON, Justice:
In this case, we are asked to determine whether a mortician who embalmed a corpse, unaware that it was infected with Acquired Immune Deficiency Syndrome, was subjected to a battery. The appellants, Keith Gregory and his wife, Cassandra Miller Gregory, appeal from August 17, 1989, and November 14, 1989, rulings of the Circuit Court of Mercer County which dismissed all of their claims against the appellees, Bluefield Community Hospital, Dr. Naeem Qazi, and other unnamed individuals.
Keith Gregory is a mortician who embalmed the body of "John Doe," a man who died at Bluefield Community Hospital on June 5, 1986. According to the hospital, when John Doe was admitted on May 25, 1986, the only medical history he reported was having had pneumonia in the past week and using antibiotics. He denied ever having any major medical problems.
However, on the day of John Doe's funeral, June 11, 1986, Gregory learned from the hospital that John Doe was infected with the Acquired Immune Deficiency Syndrome (hereinafter referred to as AIDS)[1] at the time of his death. Nearly two years later, on June 3, 1988, Gregory and his wife initiated a suit for damages in the amount of four million dollars[2] against the appellees, seeking recovery for severe emotional distress under several theories, including battery, intentional and negligent infliction of emotional distress, and intentional and negligent misrepresentation.
The lower court dismissed all of Gregory's claims except the battery claim on August 17, 1989. The court concluded that all claims other than the battery claim were governed by the one-year statute of limitations found in W.Va.Code § 55-2-12(c) and were therefore time-barred. On September 29, 1989, both parties moved for summary judgment on the remaining claim. By order dated November 14, 1989, the lower court granted the appellees' motion for summary judgment and dismissed the battery claim, indicating that the facts alleged by the Gregorys did not establish the type of harmful or offensive touching necessary to constitute a battery.
The facts contained in the record now before this Court reveal that after John Doe died on June 5, 1986, the hospital released the body to Kimball Funeral Home for embalming and funeral services. Michael Nowlin and Daniel Gregory, the plaintiff's brother, picked up the body at the hospital morgue. Hospital personnel told the men to wear protective gloves, masks, aprons, hats, and booties. Although they found these precautions a bit unusual, both men maintain that they were not told that John Doe was an AIDS-infected corpse, and that neither the toe tag[3] on *81 the body nor the death certificate mentioned AIDS as a possible cause of death. Nowlin and Daniel Gregory stated that the body was bloody because it had been subjected to a full autopsy, so they wrapped it in garbage bags to prevent it from soiling their cot and blanket any more than necessary. They subsequently delivered the body and the death certificate to the preparation room of the Gregory Funeral Home in Williamson, West Virginia.
The appellant, Keith Gregory, states that he was not unduly concerned when he began the embalming procedure on John Doe, because the death certificate did not list AIDS as a cause of death and the toe tag on the body did not indicate that an infectious disease was involved. However, after working on the body for about ninety minutes, Gregory took a break, at which time his brother Daniel related his perception that hospital personnel were acting strange in making him and Nowlin wear so much protective gear before removing the body. Gregory was suspicious, but because he did not want to stop in the middle of embalming the body, he went back to the preparation room and put on additional protective clothing.[4] Upon completing the embalming procedure, he washed his arms with Clorox bleach and took his clothes off and later burned them. He immediately showered and then washed his hands and fingernails with Clorox.
As we noted above, on the morning of John Doe's funeral on June 11, 1986, the hospital called Keith Gregory and informed him that John Doe had probably died of AIDS. Gregory states that if he had known from the beginning that John Doe was infected with the AIDS virus, he would have suggested that the family arrange a burial within twenty-four hours, cremation, or a closed casket funeral service. These procedures would not require embalming the body. If the family had insisted upon embalming, Gregory would have taken steps to minimize his exposure, such as wearing additional protective clothing, asking another mortician to assist in the procedure in order to reduce preparation time, or sending the body to an embalming service.
Gregory and his wife allege that as a result of the appellees' tortious conduct, they now live with the fear that one or both of them will someday be diagnosed as having AIDS. The Gregorys state that they "have suffered severe emotional distress and humiliation, and their marriage has all but fallen apart."
Because Gregory did not file suit for damages until almost two years after he performed the embalming procedure on John Doe, he now asks this Court to find that the causes of action which he asserts against the defendants are subject to the two-year statute of limitations found in W.Va.Code § 55-2-12(b). West Virginia Code § 55-2-12(b) (1981) provides that "[e]very personal action for which no limitation is otherwise prescribed shall be brought ... (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; ..." See Duffy v. Ogden Newspapers, Inc., 170 W.Va. 318, 319, 294 S.E.2d 121, 122 (1982).
Noting that this Court has held that damages for emotional distress may be recovered in a battery action, Criss v. Criss, 177 W.Va. 749, 356 S.E.2d 620 (1987), the appellant argues first that the lower court erred when it held that exposing someone to intimate physical contact with the bodily fluids and tissues of an AIDS-infected corpse, without his knowledge or consent, did not constitute an "offensive touching" sufficient to support a claim of battery.[5]*82 However, we agree that the appellees' actions cannot be construed as a battery, and find that the lower court properly granted summary judgment in favor of the appellees.
The Restatement (Second) of Torts, § 13(a) and (b) (1965), states that: "[a]n actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results." (Emphasis added.) The word "intent" in the Restatement denotes that "the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it." Id. at § 8A.
In this case, the hospital simply released the body to the plaintiff's funeral home for preparation. The plaintiff alleges that this act resulted in an "offensive touching" which constituted a battery, because he was subsequently "exposed to body fluids and mucus membranes of the deceased `John Doe' which were infected with the AIDS virus thereby being exposed by the extreme and outrageous conduct of the defendants intentionally or recklessly to the AIDS virus...." However, the plaintiff does not allege that the hospital acted with the intention of causing him a harmful or offensive contact, nor is there any evidence which might support such a charge. Whether the hospital negligently caused Gregory to come into contact with the body of John Doe is a separate inquiry.
We also note that the plaintiff did not allege that he suffered actual physical impairment as a result of what he refers to as an "exposure" to the AIDS virus.[6] All of the plaintiffs' claims are based solely on a fear of contracting the AIDS virus. However, Gregory has been tested for AIDS antibodies on four occasions with negative results.[7] Thus, there is no evidence that Gregory has been infected with the Human Immunodeficiency Virus (HIV), a retrovirus that causes AIDS. "It is extremely unlikely that a patient who tests HIV-negative more than six months after a potential exposure will contract the disease as a result of that exposure." Burk v. Sage Products, Inc., 747 F. Supp. 285, 287 (E.D.Pa.1990), citing Morbidity and Mortality Weekly Report, July 21, 1989, Vol. 38, No. S-7 at 5.
Although the plaintiff undoubtedly came into contact with bodily fluids during the embalming procedure, there is no evidence indicating that he was actually exposed to a disease-causing agent. It is a well-established medical fact that the AIDS virus is transmitted through the exchange of bodily fluids, primarily blood or semen. The plaintiff admits that he was wearing proper protective gear, and he merely hypothesizes as to how a potential exposure to the virus may have occurred without offering any substantiating evidence.[8] For example, the plaintiff did not recall sticking himself *83 or puncturing his gloves during the embalming procedure.
Exposure to the AIDS virus was recently discussed by this Court in Johnson v. West Virginia University Hospitals, Inc.,____ W.Va. ____, 413 S.E.2d 889 (1991). In Johnson, we stated that "[t]here is no dispute that the AIDS-infected blood of the patient came into contact with the blood of the appellee. Expert testimony on behalf of the appellant acknowledged that this case involved an exposure." Johnson, at ____, 413 S.E.2d at 893. In upholding a jury award of $1.9 million to a police officer who was bitten by an AIDS-infected patient, we noted that, "... before a recovery for emotional distress damages may be made due to a fear of contracting a disease, such as AIDS, there must first be exposure to the disease. If there is no exposure, damages will be denied." Id. at ____, 413 S.E.2d at 893. Other courts have reached similar results.
For example, in Burk v. Sage Products, Inc., 747 F. Supp. 285 (E.D.Pa.1990), the court noted that the plaintiff's claims "stem entirely from his fear of contracting AIDS as a result of the needle-stick injury." Id. at 286. However, the plaintiff could not prove that the needle which pricked him was a needle which was used on an AIDS patient. The court stated that:
... plaintiff cannot show that he has been exposed to the AIDS virus. Plaintiff's position is in marked contrast to the other situations where recovery for fear of contracting a disease has been held compensable, in that plaintiff in this case is unable to demonstrate an exposure to a disease-causing agent. The cases which have allowed recovery for fear of disease have done so when the plaintiffs were faced only with the question of whether they would contract the disease in the future; the plaintiff in the instant case faces the additional question of whether he has been exposed to the AIDS virus in the first place. The court has been unable to locate a single case, from any jurisdiction, which has permitted recovery for emotional distress arising out of a fear of contracting disease when the plaintiff cannot prove exposure to the agent which has the potential to cause the disease.
Pennsylvania case law supports the position that plaintiff must show exposure to the AIDS virus before he can recover.
Id. at 287 (emphasis added). The court relied upon a Third Circuit case involving fear of contracting disease as a result of exposure to asbestos, Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3rd Cir.1985), and concluded that:
... plaintiff's only injuries stem from his fear that he has been exposed to the disease. Wisniewski stands for the proposition that while injuries stemming from a fear of contracting illness after exposure to a disease-causing agent may present compensable damages, injuries stemming from fear of the initial exposure do not. Because plaintiff cannot show that he has been exposed to the AIDS virus, his claim for damages arising out of his fear of contracting AIDS must fail.
Id. at 288.
More recently, in Faya v. Estate of Almaraz, No. 90345011 (Md.Cir.Ct., May 23, 1991), the plaintiff charged an AIDS-infected surgeon with negligence (lack of informed consent), intentional infliction of emotional distress, fraudulent misrepresentation, and breach of contract because of her "fear that she was exposed" to the AIDS virus during surgery performed by the doctor. The circuit court found that she did not allege sufficient facts to support her allegation that she was even exposed to AIDS:
Because there have been no reported cases of transmission of AIDS from a surgeon to a patient, such transmission is only a theoretical possibility when proper barrier techniques are employed.... Plaintiff has not alleged that Dr. Almaraz failed to use proper barrier techniques. Furthermore, plaintiff has not alleged that any incident or accident occurred during surgery that would have caused Dr. Almaraz's blood to enter her body. *84 Faya, slip op. at 8. The court concluded that under the principles of Burk, supra, "without proof of exposure, that is, without a positive HIV test, the plaintiff cannot present compensable damages."[9]Id. at 9.
Based upon our reading of these and other similar cases, as well as our own opinion in Johnson, we conclude that if a suit for damages is based solely upon the plaintiff's fear of contracting AIDS, but there is no evidence of an actual exposure to the virus, the fear is unreasonable, and this Court will not recognize a legally compensable injury.
The plaintiffs also ask this Court to find that the two-year statute of limitations in W.Va.Code § 55-2-12(b) applies to claims for negligent and intentional infliction of emotional distress. In dismissing these claims as time-barred by W.Va.Code § 55-2-12(c), the lower court relied on Christman v. American Cyanamid Co., 578 F. Supp. 63 (N.D.W.Va.1983), and our decision in Rodgers v. Corporation of Harpers Ferry, 179 W.Va. 637, 371 S.E.2d 358 (1988). In Christman, the District Court stated that "the West Virginia Legislature intended 55-7-8a to apply to those common law tort actions involving physical or bodily injuries," and concluded that the intentional infliction of emotional distress and invasion of privacy were personal actions subject to the one-year statute of limitations. Id. at 66. In Rodgers, we reiterated that:
The primary statute of limitations for personal injuries in West Virginia is the two-year statute of limitations in W.Va. Code § 55-2-12(b). The one-year statute of limitations in W.Va. Code § 55-2-12(c) applies to civil actions which do not survive the death of a party. Consequently, personal tort actions such as libel, defamation, intentional infliction of emotional distress, false arrest, false imprisonment, and malicious prosecution take the one-year statute of limitations because they are excluded from statutory survivability under W.Va. Code § 55-7-8a(a) (1981),.... (Emphasis added.)
Id. 179 W.Va. at 640, 371 S.E.2d at 361. Claims for the negligent infliction of emotional distress have not been recognized by this Court, as we have expressed a reluctance to permit recovery for emotional distress in the absence of an intentional tort. Monteleone v. Co-Operative Transit Co., 128 W.Va. 340, 36 S.E.2d 475 (1945); Toler v. Cassinelli, 129 W.Va. 591, 41 S.E.2d 672 (1946); Harless v. First National Bank of Fairmont, 169 W.Va. 673, 687-91, 289 S.E.2d 692, 701-02 (1982). Thus, we conclude that the lower court properly granted summary judgment and dismissed the plaintiffs' emotional distress claims as barred by the one-year statute of limitations.
Finally, the plaintiffs' complaint included claims of negligent and intentional misrepresentation which the lower court also dismissed as time-barred by W.Va.Code § 55-2-12(c). The plaintiffs argue that because the statute of limitations for fraud and deceit claims is two years, the lower court erred in applying the one-year statute of limitations, W.Va.Code § 55-2-12(c), to their misrepresentation claim.
West Virginia Code § 55-7-8a (1981) is to be read in pari materia with W.Va. Code § 55-2-12, provides that:
In addition to the causes of action which survive at common law, causes of action for injuries to property, real or personal, or injuries to the person and not resulting in death, or for deceit or fraud also shall survive; and such actions may be brought notwithstanding the death of the person entitled to recover or the death of the person liable. (Emphasis added.)
"Chapter 55-7-8a(f) limits the survivability of personal tort actions to those set forth in that subdivision as the language provides that `nothing contained in this section shall be construed to extend the time within which an action for any other tort shall be brought.'" Christman v. American Cyanamid Co., 578 F. Supp. 63, 66 (1983).
*85 Even though "misrepresentation" is not listed in W.Va.Code § 55-7-8a along with "deceit" and "fraud," we believe that it is "sufficiently related to an action for fraud and deceit so that the two-year statute of limitations applies under W.Va.Code, 55-2-12, and W.Va.Code, 55-7-8a." Stanley v. Sewell Coal Co., 169 W.Va. 72, 77, 285 S.E.2d 679, 683 (1981). However, in order to establish fraud, the circumstances must be clearly alleged and proved. W.V.R.C.P. 8(e)(1), 9(b); Hager v. Exxon Corp., 161 W.Va. 278, 282-84, 241 S.E.2d 920, 923 (1978). In this case, the plaintiffs' complaint did not clearly or sufficiently allege either misrepresentation, fraud, or deceit. Consequently, such a claim will not be considered by this Court.
For the reasons set forth above, the orders of the Circuit Court of Mercer County dismissing the appellants' claims are hereby affirmed.
Affirmed.
NOTES
[1] For a discussion of the medical implications of AIDS, see this Court's opinion in Benjamin R. v. Orkin Exterminating Company, Inc., 182 W.Va. 615, 390 S.E.2d 814 (1990).
[2] In addition, the plaintiffs seek pre-judgment and post-judgment interest, attorneys fees, court costs, and punitive damages.
[3] The plaintiffs allege that the hospital used a plain tag instead of the red infectious body tag which it normally uses and which Keith Gregory relied upon for notification.
[4] When he began the embalming procedure, Gregory states that he was wearing a surgical scrub suit, athletic socks, deck shoes, and latex surgical gloves. He later added a mask, rubber sleeves, shoe covers, and an additional apron.
[5] At this point, we note that the appellant improperly cited Kozup v. Georgetown University, 851 F.2d 437 (D.C.Cir.1988), for the proposition that an exposure to AIDS constitutes a battery. In Kozup, a child born prematurely was given blood transfusions shortly after birth. Written parental consent for the transfusions was not obtained. It was subsequently learned that the blood was contaminated, and the child contracted AIDS. Case law in the District of Columbia provided that "[A] surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages." Barnett v. Bachrach, 34 A.2d 626, 627 (D.C. 1943). The Court of Appeals found that substantial questions of material fact existed with regard to the battery claim against the hospital and remanded for further proceedings.
[6] Section 14 of the Restatement (Second) of Torts provides further that "[t]o make the actor liable for a battery, the harmful bodily contact must be caused by an act done by the person whose liability is in question." "Bodily harm" is defined as "any physical impairment of the condition of another's body, or physical pain or illness." Id. at § 15.
[7] HTLV-III tests were performed on Mr. Gregory in October 1986, January 1987, October 1987, and January 1988.
[8] William Robinson, M.D., an expert retained by the Gregorys, stated in an affidavit that "to a reasonable degree of medical certainty" Gregory "was exposed to the AIDS virus as a result of the aerosolizing of the fluids of the corpse during the embalming process." When plaintiff's counsel raised this point with this Court during oral arguments, he was asked exactly how this may have resulted in an exposure, since Gregory had no open wounds or sores and was, in fact, wearing protective clothing. Counsel stated that Gregory had chapped lips, presumably implying that infected aerosols or droplets could have come into contact with chapped lips.
[9] See also, Rossi v. Estate of Almaraz, 59 U.S.L.W. 2748, 1991 Westlaw 166924 (Md.Cir. Ct., May 23, 1991), in which the plaintiff's complaint (alleging negligence/lack of informed consent, loss of consortium, and fraud/concealment) was dismissed because it was based solely on fear of exposure to AIDS, without facts to support the allegation that an exposure occurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331051/ | 650 S.E.2d 413 (2007)
GRIFFITH
v.
The STATE.
No. A07A1375.
Court of Appeals of Georgia.
July 30, 2007.
*415 Phillip Comer Griffeth, for Appellant.
Kenneth W. Mauldin, Dist. Atty., and Brian Vance Patterson, Asst. Dist. Atty., for Appellee.
*416 BLACKBURN, Presiding Judge.
Following a jury trial, Lafredrick Griffith appeals his convictions of burglary[1] and criminal trespass[2] (1) on general grounds, and contending that the trial court erred in the following ways: (2) by transferring the case to another judge without a hearing, (3) by failing to excuse a juror with a first offender status for theft by receiving stolen property, (4) by failing to rule on a hearsay objection, (5) by asking questions of a witness, (6) by sustaining a hearsay objection based on a statement's self-serving nature, (7) by failing to charge on mere presence and mistake of fact, (8) by responding to the jury's questions by providing the jury with written copies of the jury instructions, (9) by considering Griffith's pending charges during sentencing, (10) by failing to grant Griffith's motion for new trial based on his ineffective assistance of counsel claim, and (11) by failing to make findings as to the effectiveness of trial counsel. Discerning no error, we affirm.
The standard of review for sufficiency of the evidence [in a criminal case] is set out in Jackson v. Virginia.[3] The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In addition, appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.
Taylor v. State.[4]
So viewed, the evidence shows that at approximately 8:30 a.m., while Farley Richmond was home recuperating from surgery, Richmond was awakened by his dog barking "wildly." Upon investigating, Richmond saw Griffith, whom he did not know, in his backyard, which was surrounded by a brick wall. Richmond watched from his house as Griffith looked into Richmond's garage windows. Richmond then briefly lost sight of Griffith, who reappeared in the neighbor's backyard, having climbed the wall. Richmond called the police, who responded and discovered Griffith on the back porch of the neighbor's house. After investigating, police discovered that drawers in the neighbor's house had been opened, and that, in Richmond's house, the screen on the back porch door had been slit and a back window opened.
After both Richmond and the neighbor confirmed that Griffith was a stranger and did not have permission to enter their homes, Griffith was arrested and charged with two counts of burglary. A jury trial resulted in his conviction on one count of burglary (the neighbor's house) and one count of criminal trespass (Richmond's house). Following the denial of his motion for new trial, Griffith appeals.
1. Griffith contends that the evidence was insufficient to support his conviction of burglary. We disagree.
OCGA § 16-7-1 provides that "[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. . . ."
Whether the defendant entertained an intent to commit a theft after entering is a matter for the jury to say, under the facts and circumstances proved. As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent. And the fact that the defendant may have failed in accomplishing his apparent purpose does not render a finding of burglary improper.
Nelson v. State.[5]
Here, Griffith argues that the State failed to prove that he had intent to commit a *417 felony in the neighbor's house, because Griffith did not have anything in his hands when police discovered him in the neighbor's house and because the neighbor found nothing missing. However, at trial, the neighbor testified that valuables, such as electronics and jewelry, were in the house, and that drawers had been opened while she was away from the house. "A jury may infer that a defendant intended to commit [the felony of] theft based on the presence of valuables inside the premises, when the jury concludes that there is no other apparent or credible motive for the defendant's unauthorized entry." Nelson, supra, 277 Ga.App. at 95(1)(a), 625 S.E.2d 465. As the neighbor testified that she had never seen Griffith before and that he did not have permission to enter her home, the evidence authorized the jury to conclude that Griffith had intent to commit a felony in the neighbor's house.
2. Griffith contends that the trial court erred in transferring his case to another judge without providing him a hearing. This enumeration is without merit.
After the case was assigned to Superior Court Judge Jones, the State moved to transfer the case to Chief Judge Stephens, because Griffith had other burglary charges pending before Judge Stephens. According to Georgia Uniform Superior Court Rule 3.2, "[w]hen practical, all actions involving substantially the same parties, or substantially the same subject matter, or substantially the same factual issues, whether pending simultaneously or not, shall be assigned to the same judge."
Without citing any case law, Griffith contends that the transfer without a hearing was error. However, the rule he cites does not require a hearing, and Griffith concedes that he did not request one nor otherwise object to the transfer at the time it occurred. Moreover, Griffith does not now identify any way in which he was prejudiced by the transfer. Accordingly, we discern no reversible error.
3. Griffith contends that the trial court erred by failing to excuse a juror who had first offender status for theft by receiving stolen property. We disagree.
Under OCGA § 15-12-163(b)(5), either the State or the accused may object to the seating of a juror who "has been convicted of a felony in a federal court or any court of a state of the United States and the juror's civil rights have not been restored." "The decision to strike a juror for cause lies within the sound discretion of the trial court." Paige v. State.[6]
During voir dire in Griffith's trial, a prospective juror identified himself as having been convicted of theft by receiving stolen property, for which he had completed a two-year sentence of probation and received first offender status. Upon questioning by the trial court, the juror answered that he would not be prevented from being fair and impartial. Neither the State nor Griffith's trial attorney requested that the juror be struck from the panel, and the juror served during Griffith's trial.
Pretermitting Griffith's failure to object, we note that
OCGA § 42-8-62(a) provides that, upon fulfillment of the terms of probation, the defendant shall be discharged without court adjudication of guilt. The discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.
(Punctuation omitted.) State v. Mills.[7] As such was the case here, the prospective juror was eligible for jury service, and the trial court did not err in seating the juror.
4. Griffith contends that the trial court erred in failing to rule on a hearsay objection and in failing to instruct the jury to disregard hearsay testimony regarding the damage to Richmond's screen door. Because the challenged evidence was cumulative of other competent evidence, this enumeration is without merit.
*418 At trial, Richmond testified as part of the State's case-in-chief, that when his wife and stepdaughter arrived home, they went to the back porch and told Richmond that the back screen had been slit and a rear window had been opened. After a hearsay objection, which was conceded by the State's counsel without intervention of the trial court, Richmond clarified that he did not himself observe the slitting of the screen. Griffith now argues that the trial court erred by allowing Richmond's testimony and failing to instruct the jury regarding the testimony. However, any resulting error was harmless, because the testimony was cumulative of other competent photographic and testimonial evidence that the screen had been slit and the rear window opened. See Dillard v. State.[8] Accordingly, we discern no reversible error.
5. At the end of Richmond's testimony, the trial court asked Richmond what time and date the events occurred. Although he did not object at trial, Griffith now contends that this was error because the questions amounted to the trial court commenting on whether the date and time had been proved by the State.
Griffith correctly notes that "[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused." OCGA § 17-8-57. However, "[a] trial judge may propound questions to a witness to develop the truth of the case, to clarify testimony, to comment on pertinent evidentiary rules and to exercise its discretion when controlling the conduct of counsel or witnesses in order to enforce its duty to ensure a fair trial to both sides." Dickens v. State.[9] Here, because the trial court simply asked two clarifying questions and did not express an opinion on the evidence or comment on an issue of fact, Griffith has not shown a violation of OCGA § 17-8-57. See Middlebrooks v. State.[10]
6. Griffith contends that the trial court erred in sustaining a self-serving hearsay objection to testimony that Griffith stated he was "looking for a place to sleep." We disagree.
"[T]he admission of evidence is generally a matter resting largely within the sound discretion of the trial judge." Dodd v. Scott.[11] "Self-serving declarations . . . are inadmissible hearsay unless the declarant testifies and is subject to cross-examination. The defendant is allowed to declare his innocence in court; he is not allowed to avoid this opportunity by pre-trial declarations of innocence." (Citation and punctuation omitted.) Parker v. State.[12]
At trial, during cross-examination of one of the responding officers, Griffith's counsel asked, "[Upon finding Griffith on the neighbor's screen porch,] at that point Mr. Griffith volunteers up the statement that he was looking for a place to sleep; isn't that correct?" The State objected, arguing that Griffith's alleged statement was self-serving hearsay. The trial court sustained the objection on the ground that Griffith's statement was self-serving hearsay.
As Griffith's statement could be construed to show that he did not have the requisite intent to commit burglary, i.e., that he did not intend to commit a felony or theft in the neighbor's house (per OCGA § 16-7-1), the trial court did not abuse its discretion in finding Griffith's statement to be self-serving. Therefore, because Griffith elected not to testify, the trial court did not err in excluding the statement.
7. Griffith next contends that, even in the absence of any request, the trial court should have charged the jury on mistake of fact and mere presence, because Griffith's *419 alleged sole defense was that he was looking for a place to sleep and lacked an unlawful purpose for entering the victims' property. See Henderson v. State[13] (reversing conviction where trial court failed to charge on sole defense). However, because Griffith presented no admissible evidence of his alleged statement that he was looking for a place to sleep, there was no basis for the charges other than speculation as to why Griffith would enter the houses of two strangers. Moreover, as Griffith concedes, because the police found him inside the neighbor's porch, his defense went to the intent element of each crime, i.e., that Griffith did not intend to commit a theft or felony inside the neighbor's house, and that he did not have an unlawful purpose for entering Richmond's house. This defense was fairly covered by the jury instructions which explained that, with respect to the burglary as indicted here, "intent to commit a theft is an essential element and must be proven by the State beyond a reasonable doubt," and that a necessary element of criminal trespass is an entry with an unlawful purpose. Accordingly, as Griffith's alleged defense of was "fairly covered by the charge[s] on the elements of the [crimes]," the court did not err in failing to give those additional instructions. Curtis v. State.[14] See Green v. State[15] ("[j]ury instructions must be viewed as a whole, and it is not error to refuse to give a requested charge when the same principles are fairly given to the jury in the general charge of the court") (punctuation omitted).
8. Griffith next contends that the trial court erred in responding to questions from the jury by providing them with a written version of the jury charges. We disagree.
During deliberation, the jury sent a note to the judge asking the following questions about criminal trespass: "Can it include using one property to gain access to a different property? Does it require entry into the house, not just the property? Can we have a definition of `infer' again?" With the consent of Griffith and the State, the trial court responded by providing a written copy of the entire jury instructions.
Griffith now contends that providing the written instructions was error. However, as Griffith did not object at trial, the issue is not preserved for appeal. Tuff v. State.[16] Moreover, the Supreme Court of Georgia has explained that "it is frequently desirable that instructions which have been reduced to writing be not only read to the jury but also be handed over to the jury." (Punctuation omitted.) Cotton v. State.[17] And by providing the jury with the entire instructions, the trial court avoided the "risks associated with the giving of a partial written jury instruction on recharge." Rickman v. State.[18] Accordingly, we discern no error.
9. Griffith also contends that the trial court erred by considering a separate pending indictment for burglary and attempted burglary in aggravation of his sentence. This enumeration is without merit.
During the sentencing hearing, after the trial court asked if Griffith had any pending charges, the State's and Griffith's attorneys explained that Griffith had charges for burglary and attempted burglary pending in that court. The trial court was already aware of the two charges because they were already assigned to him and the State had, prior to trial, unsuccessfully attempted to admit evidence of the two prior charges as similar transactions. At sentencing, the trial court stated as follows:
The maximum is 20 years. Because you have three prior felony convictions [aside from the pending charges], I'm required to give you 20. But I have some discretion as to how many of those years will be served in confinement. But whatever term I give you in confinement the law also mandates *420 that it be served without the possibility of parole, soand you've got another pendingor two other pending matters where you're allegedit's alleged that you broke into two other residences in a similar way. So this may not be the end of your problems as you leave here today.
(Emphasis supplied.) For the two charges of which he was found guilty, the trial court then sentenced Griffith to twenty years (for burglary), to serve ten, and to twelve months concurrent confinement (for criminal trespass).
Griffith now contends that the trial court erred in considering the pending indictment. We note that Griffith "waived this argument when he failed to raise an objection during sentencing." Prather v. State.[19] Nevertheless, in light of Griffith's ineffective assistance claim in Division 10(h), we conclude that, based on the trial court's explanation during sentencing, the court made it clear that it did not improperly consider the pending indictment as proven facts; rather, the court referred to the indictments as allegations which may lead to additional penalties for Griffith. Accordingly, we discern no error.
10. Griffith contends that he received ineffective assistance on several grounds. Because Griffith failed to show that his counsel's performance in each instance was deficient, this enumeration is without merit.
In order to establish ineffectiveness of trial counsel, appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a lower court's determination of a claim of ineffective assistance of counsel, we give deference to the trial court's factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court's legal conclusions de novo.
(Citation and punctuation omitted.) Williams v. State.[20]
(a) Failure to file a motion to sever offenses. Griffith contends that his counsel's performance was deficient because he failed to move to sever the two burglary charges. However, at the hearing on Griffith's motion for new trial, Griffith's trial counsel testified that
I did not feel that such a motion would have merit inasmuch as the two counts of burglary were alleged to have taken place right next door to each other and on the same day at the same time basically. . . . I did not believe that it would be in Mr. Griffith's best interest to have those offenses severed and run the risk of having to go to trial twice on what's basically one course of events.
"Although the tactic may have been ineffective, we perceive trial counsel's [decision to be] a matter of reasonable strategy. Decisions by trial counsel amounting to reasonable trial strategy do not constitute deficient performance." Green v. State.[21]
(b) Failure to timely challenge service of juror. Griffith also contends that his trial counsel performed deficiently because he failed to object to the service of the juror who had a prior first offender conviction. However, at the hearing on the motion for new trial, Griffith's trial attorney testified that he "felt that [the juror] may not be a bad juror for us, that his having been convicted of theft by receiving stolen property . . . at the time I did not believe that that would render him a . . . bad . . . juror for us." Therefore, trial counsel's failure to object to the juror was a reasonable strategic decision, and not the result of deficient performance. See Green, supra, 281 Ga.App. at 324(2), 638 S.E.2d 288.
(c) Failure to object to hearsay testimony as to the description given by the 911 caller. Griffith contends that his trial counsel *421 should have objected to hearsay testimony by an officer recounting a description of the perpetrator given to the 911 operator. However, at the motion for new trial, Griffith's trial counsel testified that
[o]ur approach to this case was that identity was not really at issue given the facts of . . . the case. . . . And the issues in the trial related not to his identity, because there was no issue that it was not him that was found inside the house, but rather . . . whether his actions constituted a burglary. And so, therefore, I didn't . . . feel the need to object to descriptions of his clothing since it was undisputedly him . . . who was found.
Therefore, as this was a reasonable trial strategy in light of the officers' testimony of their encounter with Griffith himself on the neighbor's porch, we discern no error.
(d) Failure to challenge neighbor's in-court identification of Griffith. Griffith likewise contends that his trial counsel's failure to object to or cross-examine the neighbor with respect to her in-court identification of Griffith. However, in light of trial counsel's testimony that this decision was part of his trial strategy, i.e., that Griffith's identity was not an issue with respect to the neighbor's house (in which Griffith was found), we discern no error.
(e) Failure to move for a directed verdict. Griffith contends that his trial counsel's failure to move for a directed verdict based on the sufficiency of evidence was deficient. However, in light of our ruling in Division 1, this would have been a meritless motion, as conceded by trial counsel at the motion for a new trial. Moreover, even absent a motion for a directed verdict, a criminal defendant may challenge the sufficiency of the evidence. See Mack v. State[22] ("a challenge to the sufficiency of the evidence need not be preserved or raised by trial counsel, for by statute [(OCGA § 5-6-36(a))] such is automatically preserved as grounds for appeal") (punctuation and footnote omitted). Accordingly, we discern no error. See Sims v. State.[23]
(f) Failure to request a jury charge on mistake of fact and mere presence. Griffith contends that his trial counsel's failure to request jury charges on mere presence and mistake of fact was deficient performance. As held in Division 7, these instructions were fairly covered by the charges given. Accordingly, counsel's performance was not deficient in failing to request the charges.
(g) Failure to request the trial court to re-charge the jury. Griffith contends that his trial counsel's performance was deficient due to his failure to request the trial court to re-charge the jury on criminal intent in response to the jury's questions. However, in light of our ruling in Division 8, this enumeration is without merit.
(h) Failure to object to the trial court's consideration of Griffith's other pending charges during sentencing. Griffith contends that his trial counsel should have objected to the trial court's consideration of his other pending charges during sentencing. However, in light of our ruling in Division 9, this enumeration is without merit.
11. Griffith finally contends that the trial court erred in failing to make explicit findings of fact with respect to his counsel's effectiveness. In support of his contention, Griffith makes no argument other than to incorporate by reference the arguments we address in Division 10. In light of our rulings therein, this enumeration is without merit. See Maddox v. State[24] ("[a]lthough the trial court did not make explicit findings on [these] issue[s], implicit in the trial court's denial of the amended motion for new trial is a finding that [the defendant] was not denied the effective assistance of counsel").
Judgment affirmed.
RUFFIN and BERNES, JJ., concur.
NOTES
[1] OCGA § 16-7-1.
[2] OCGA § 16-7-21(b)(1).
[3] Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[4] Taylor v. State, 266 Ga.App. 818, 598 S.E.2d 122 (2004).
[5] Nelson v. State, 277 Ga.App. 92, 95(1)(a), 625 S.E.2d 465 (2005).
[6] Paige v. State, 281 Ga. 504, 505(2), 639 S.E.2d 478 (2007).
[7] State v. Mills, 268 Ga. 873, 874, 495 S.E.2d 1 (1998).
[8] Dillard v. State, 272 Ga.App. 523, 526(3), 612 S.E.2d 804 (2005).
[9] Dickens v. State, 280 Ga. 320, 324(3), 627 S.E.2d 587 (2006).
[10] Middlebrooks v. State, 255 Ga.App. 541, 543(3), 566 S.E.2d 350 (2002).
[11] Dodd v. Scott, 250 Ga.App. 32, 35(2), 550 S.E.2d 444 (2001).
[12] Parker v. State, 276 Ga. 598(2), 581 S.E.2d 7 (2003).
[13] Henderson v. State, 141 Ga.App. 430(4), 233 S.E.2d 505 (1977).
[14] Curtis v. State, 285 Ga.App. 298, 301(1)(a), 645 S.E.2d 705 (2007).
[15] Green v. State, 240 Ga.App. 774, 776-777(1), 525 S.E.2d 154 (1999).
[16] Tuff v. State, 278 Ga. 91, 93(2), n. 11, 597 S.E.2d 328 (2004).
[17] Cotton v. State, 279 Ga. 358, 359(3), 613 S.E.2d 628 (2005).
[18] Rickman v. State, 277 Ga. 277, 279(2), 587 S.E.2d 596 (2003).
[19] Prather v. State, 259 Ga.App. 441, 445(6), 576 S.E.2d 904 (2003).
[20] Williams v. State, 277 Ga. 853, 857(6), 596 S.E.2d 597 (2004).
[21] Green v. State, 281 Ga. 322, 324(2), 638 S.E.2d 288 (2006).
[22] Mack v. State, 251 Ga.App. 407, 410(4), 554 S.E.2d 542 (2001).
[23] Sims v. State, 281 Ga. 541, 543(2), 640 S.E.2d 260 (2007).
[24] Maddox v. State, 218 Ga.App. 320, 322(2), 461 S.E.2d 286 (1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276337/ | 118 Cal. Rptr. 2d 906 (2002)
98 Cal. App. 4th 16
JACKSON PLAZA HOMEOWNERS ASSOCIATION, Plaintiff and Appellant,
v.
W. WONG CONSTRUCTION, Defendant, Cross-complainant and Respondent;
Alcal Roofing and Insulation, Cross-defendant and Respondent. [And five other cases.[]].
No. A091787.
Court of Appeal, First District, Division Four.
April 30, 2002.
Rehearing Granted May 29, 2002.
*907 Scott Williams, Williams, Wester, Hall & Nadler, Attorney for Appellant Jackson Plaza Homeowners Association.
S. Mitchell Kaplan, Kathleen A. Foley, Gordon & Rees, San Francisco, Attorney for Appellant W. Wong Construction.
John W. Chapman, Kurt T. Hendershott, Chapman & Intrieri, Alameda, Attorney for Respondent Alcal Roofing and Insulation.
Jack T. Friedman, Tara Narayanan, Carroll, Burdick & McDonough, Walnut Creek, John N. Carr, Lewis, D'Amato, Brisbois & Bisgaard, Christian Lucia, Valerian, Patterson, Field & McGraw, Attorney for Respondent Atlas Heating and Ventilating Co., Ltd.
Brian S. O'Malley, Glaspy & Glaspy, Walnut Creek, Attorney for Respondent New West Roofing, Inc.
Susan H. Handelman, Ropers, Majeski, Kohn & Bentley, Attorney for Respondent Gonzalez Roofing & Waterproofing Company.
Certified for Partial Publication.[*]
Rehearing Granted May 29, 2002. See 121 Cal. Rptr. 2d 221.
RIVERA, J.
In this consolidated construction defects action, Jackson Plaza Homeowners Association (HOA) appeals from summary judgments entered in favor of respondent W. Wong Construction and respondent subcontractors Alcal Roofing and Insulation (Alcal), Atlas Heating and Ventilating Co., Ltd. (Atlas), New West Roofing, Inc. (New West) and Gonzalez Roofing & Waterproofing Company (Gonzalez). HOA contends that the trial court erred in ruling that the action was barred by the 10-year statute of limitations set forth in Code of Civil Procedure[1] section 337.15 for actions to recover damages for latent construction defects. We conclude that there is a triable issue of fact on whether the 10-year limitations period was subject to equitable tolling for repairs undertaken by Wong Construction and Gonzalez after the notice of completion was recorded. We therefore reverse the judgment in favor of Wong Construction on HOA's complaint and the judgment in favor of Gonzalez on Wong Construction's cross-complaint.
I. FACTUAL BACKGROUND
The Jackson Plaza condominium project located at 1591 Jackson Street in San Francisco was completed in 1985. The Madja Corporation was the developer of the project. Respondent Wong Construction was the general contractor of the project. Respondents Alcal, Atlas, New West, and Gonzalez were subcontractors on the project. A notice of completion of the project was recorded on October 26, 1985.
HOA is a nonprofit corporation organized for the purpose of managing the project.[2] In late 1985 and early 1986, *908 HOA became aware of several problems at the project including water leaks in the roof, the garage and the windows and sliding glass doors. Tai Associates/Architects (TAA), the principal architect for the project, prepared punch lists of the repairs to be completed. In 1990, HOA filed an action against respondents and others. However, HOA subsequently dismissed the action when it determined that the problems could be remedied at minimal cost.
In 1995, HOA discovered that there were serious water intrusion problems throughout the project. On January 19, 1996, HOA served a notice pursuant to former Civil Code section 1375 on Madja, the developer, setting forth its claim for defects in the design and construction of the project.[3] HOA thereafter filed this action on June 12, 1996. Wong Construction and New West were among the defendants named in the complaint. On April 1,
1997, Wong Construction filed a cross-complaint for indemnity against the respondent subcontractors and others.
On .September 25, 1996, HOA and Wong Construction stipulated to the appointment of John R. Griffiths as a special master in the action to regulate the pretrial proceedings. Wong Construction subsequently conducted limited discovery related to the three-year statute of limitations of section 338. Griffiths stayed discovery except for the purpose of discovery on the issue of the statute of limitations. He set February 27, 1998, as the date for respondents' motion for summary judgment on the section 338 issue and ordered that discovery be completed by January 30, 1998. Griffiths thereafter granted the parties several extensions to complete discovery and continued the hearing on the summary judgment motion. A hearing on the motion was held on August 19, 1998. The trial court denied the motion.
The parties thereafter conferred with Griffiths. On April 28, 1999, Griffiths ordered that HOA provide all parties with a protocol for its proposed destructive testing. He further ordered that HOA complete that testing by May 15,1999.
On September 15, 1999, Alcal moved for summary judgment, contending that Wong Construction's cross-complaint was barred by the 10-year statute of limitations of section 337.15. Atlas also moved for summary judgment against Wong Construction. New West and Gonzalez filed a "joinder" in Alcal's motion. On October 5, 1999, Wong Construction filed an ex parte application to continue the hearing on the motions of Alcal and Atlas so that its own summary judgment motion raising the identical issue could be heard at the same time. On October 12, 1999, the trial court continued the hearing on the motions for summary judgment to December 1, 1999, and ordered that all motions for summary judgment that were filed by October 21, 1999 in the matter would be heard on that date.
On October 22, 1999, HOA filed an ex parte application for a continuance of the hearing on the summary judgment motions. It contended that it did not yet have the results of the destructive testing conducted in September and that it was currently scheduling additional destructive testing.[4] It further argued that it did not *909 have sufficient time to review over 20 boxes of documents in order to prepare a meaningful opposition to the motion prior to the hearing on December 1. The trial court denied the application.
Meanwhile, on October 29, 1999, Wong Construction served its motion for summary judgment raising the 10-year limitations period of section 337.15 as a bar to HOA's action. New West filed a joinder in this motion.
Upon recommendation of Griffiths, the trial court continued the hearing to January 5, 2000. On January 11, 2000, the parties motions would be continued for 30 days. The hearing on the motions was subsequently held on February 10, 2000. The trial court granted the motions and entered judgments in favor of respondents, concluding that HOA's action and Wong Construction's cross-complaint against Alcal and Atlas and "all deemed cross-complaints" were barred by the 10 year statute of limitations set forth in section 337.15. HOA timely appeals the judgments in favor of respondents with the exception of the judgment dismissing the action against Atlas.[5] Wong Construction cross-appeals from the judgment entered on its cross-complaint.
II. DISCUSSION
A.-C.[**]
D. Section 337.15
1. Equitable tolling
HOA contends that section 337.15 was tolled during the period in which respondents repaired defects in the construction of the project. This contention has merit.
Section 337.15 establishes a 10-year statute of limitations for actions to recover damages based on latent construction defects. In pertinent part, section 337.15 provides: "(a) No action may be brought to recover damages from any person ... who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following: [¶] (1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property." (Italics added.)
The issue of whether the 10-year statute of limitations of section 337.15 is subject to equitable tolling during periods of repair is currently before our Supreme Court in Lantzy v. Centex Homes (2001) 89 Cal. App. 4th 1059, 107 Cal. Rptr. 2d 795, review granted August 22, 2001, S098660. Several courts have held, however, that in construction defect actions, the statute of limitations is tolled during periods in which the defendant attempts to repair the defect. (Aced v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal. 2d 573, 585, 12 Cal. Rptr. 257, 360 P.2d 897 ["statute of limitations is tolled where one who has breached a warranty claims that the defect can be repaired and attempts to make repairs"]; Grange Debris Box & Wrecking Co. v. Superior Court (1993) 16 Cal. App. 4th 1349, 1360, 20 Cal. Rptr. 2d 515 [recognizing that section 337.15 is tolled for periods of repair]; Cascade Gardens Homeowners Assn. v. McKellar & Associates (1987) 194 *910 Cal.App.3d 1252, 1256, 240 Cal. Rptr. 113 and cases cited therein; 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 684, p. 871.) "Tolling during a period of repairs rests upon the same basis as does an estoppel to assert the statute of limitations, i.e., reliance by the plaintiff upon the words or actions of the defendant that repairs would be made." (A & B Painting & Drywall, Inc. v. Superior Court (1994) 25 Cal. App. 4th 349, 355, 30 Cal. Rptr. 2d 418.)
In Cascade Gardens Homeowners Assn. v. McKellar & Associates, supra, 194 Cal. App.3d at page 1256, 240 Cal. Rptr. 113, the homeowners association filed its action for defective construction 10 years and 1 month after the date the notice of completion was recorded. The court held that the statute of limitations was tolled during a four-month period in which the developer made repairs to correct roof leaks. (Id. at pp. 1257-1258, 240 Cal. Rptr. 113.)
In A & B Painting & Drywall, Inc. v. Superior Court, supra, 25 Cal.App.4th at page 355, 30 Cal. Rptr. 2d 418, this court held that repairs undertaken by someone other than the original entity that did the original work did not toll the section 337.15 limitations period. There, approximately seven months before the running of the 10-year statute, the developer retained a contractor to repair the interior drywall framing of the Hillsdale Mall. (A & B Painting, at pp. 353, 355, 30 Cal. Rptr. 2d 418.) We declined to extend Cascade to toll the limitations period on the developer's action against the contractor, reasoning that repairs by the contractor, a third party that was not originally responsible for the defect, did not involve reliance on the entity which warranted the original work and thus did not furnish a basis for tolling. (A & B Painting, at pp. 354-355, 30 Cal. Rptr. 2d 418.) We also rejected a claim that work done in 1982, the year following the filing of the notice of completion, tolled the 10-year statute because the developer failed to show that the repair work included any of the developer's present complaints.[7](Id. at p. 356, 30 Cal. Rptr. 2d 418.)
In FNB Mortgage Corp. v. Pacific General Group (1999) 76 Cal. App. 4th 1116, 1134, 90 Cal. Rptr. 2d 841 (FNB Mortgage ), the court held that section 337.15 is not subject to equitable tolling for repairs. The court distinguished the 10-year limitations period of section 337.15 from other limitations statutes, stating that section 337.15 establishes an outside limit for actions against a contractor for latent defects. (FNB Mortgage, at p. 1131, 90 Cal. Rptr. 2d 841.) It reasoned that the purpose of the statute was to "`protect contractors and other professionals and tradespeople in the construction industry from perpetual exposure to liability for their work ...' [citation]" and that equitable tolling of the statute for repairs would run afoul of this purpose. (Id, at pp. 1132 1133, 90 Cal. Rptr. 2d 841.)
We disagree with the holding of FNB Mortgage. As the Supreme Court acknowledged in Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal. 3d 624, 642, 147 Cal. Rptr. 486, 581 P.2d 197, "section 337.15[is] an ordinary statute of limitations, subject to the same rules ... as other statutes of limitations." One of these rules, equitable tolling of a limitations statute for periods *911 of repair, is well established. (Cascade Gardens Homeowners Assn. v. McKellar & Associates, supra, 194 Cal.App.3d at p. 1256, 240 Cal. Rptr. 113.) Further, permitting tolling of the limitations statute during periods of repair does not frustrate the purpose of section 337.15. To the contrary, a contractor cannot be deemed to be surprised by a claim for a construction defect when it has been put on notice that a problem exists by virtue of its attempt to repair the problem during the limitations period. The purpose of a limitations statute is to "`[prevent] surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.' [Citations.]" (Elkins v. Derby (1974) 12 Cal. 3d 410, 417, 115 Cal. Rptr. 641, 525 P.2d 81, fn. omitted.) Nor are contractors subject to perpetual exposure to liability as a result of our holding. We presume that in most cases, as in the case here, the period of repair will be of relatively short duration and thus will not unduly extend the statutory period.
Moreover, the facts of FNB Mortgage are clearly distinguishable from those here. There, FNB entered into an agreement with the plaintiff to toll the limitations period. FNB, however, did not protect itself by entering into a similar agreement with Pacific General, the developer with which it contracted to construct an apartment complex. (FNB Mortgage, supra, 76 Cal.App.4th at pp. 1121-1122, 1124, 90 Cal. Rptr. 2d 841.) While the plaintiffs underlying action was timely due to the tolling agreement, FNB's cross-complaint was barred because it was filed after the expiration of the 10-year limitations period. (Id, at p. 1135, 90 Cal. Rptr. 2d 841.) The court determined that any promises by Pacific General to the plaintiff to repair defects in the complex had no effect on whether FNB chose to file suit as it would not have induced FNB's reliance to delay the filing of its cross-complaint. (Ibid.) "It was in FNB's control whether plaintiffs action was filed within the 10-year period, and it chose to extend the time for plaintiff, while doing nothing to protect its right to bring its own claim for indemnity. A contractor or subcontractor, whether suspecting or unsuspecting, does not lose the protections of the 10-year limitations period under section 337.15 because of the conduct of another party that extends the time for suit against itself." (Ibid.)
Here, HOA presented evidence in its opposition to Wong Construction's summary judgment motion that Wong Construction engaged in significant repair work during 1986, and as late as December 3, 1986, relating to the water leakage problems that resulted in the present action. In contrast to FNB Mortgage, there is evidence that HOA relied on Wong Construction's promises to repair the defects during this period. Indeed, as noted in TAA's letter dated December 3, 1986 to Wong Construction, "[w]e are hoping that, by completing these items [including repairs to areas affected by water leakage] as soon as possible, we will delay the Homeowners from taking legal action before the end of the year." This evidence at the very least raises a triable issue of fact supporting HOA's position that the 10-year statute was tolled during some part of 1996 on HOA's complaint against Wong Construction, in which case HOA's action, filed on June 12, 1996, may well have been timely. The resolution of this issue requires a full evidentiary hearing in the trial court in which the parties can address whether the evidence proffered by HOA establishes that repairs related to the defects alleged in the complaint were made after the filing of the notice of completion, and if so, for what period the statute was tolled.
HOA, however, did not show that New West made any repairs during the *912 10-year period following the filing of its complaint. (See A & B Painting & Drywall, Inc. v. Superior Court, supra, 25 Cal.App.4th at pp. 354-355, 30 Cal. Rptr. 2d 418 [limitations period will not be tolled for entity that does not undertake repairs].) Nor did it submit any evidence that New West engaged in any willful misconduct such that the action would fall within the exception to the 10-year period for actions based on willful misconduct or fraudulent concealment.[8] (§ 337.15, subd. (f).) Given these omissions, we will affirm the summary judgment entered in favor of New West on HOA's complaint.
2.-3.[***]
E.-F.[***]
III. DISPOSITION
HOA's purported appeals of the summary judgments entered in favor of Alcal (A091787) and Gonzalez (A092084) are dismissed. The judgment entered in favor of New West on HOA's complaint (A092537) is affirmed, as is the judgment entered in favor of New West on Wong Construction's cross-complaint (A092000). The judgments in favor of Wong Construction and Gonzalez in A092062 are reversed. In all other respects, the judgments in A092062 are affirmed. The order awarding Gonzalez attorney fees in A092730 is reversed. The remaining orders in A092730 are affirmed, with costs to Alcal, Atlas and New West. The parties are to bear their own costs on all other appeals.
We concur: KAY, P.J., and REARDON, J.
NOTES
[] Jackson Plaza Homeowners Assn. v. New West Roofing, Inc. (No. A092000); Jackson Plaza Homeowners Assn. v. W. Wong Construction (No. A092062); Jackson Plaza Homeowners Assn. v. Gonzalez Roofing & Waterproofing Co. (No. A092084); Jackson Plaza Homeowners Assn. v. New West Roofing, Inc. (No. A092537); W. Wong Construction v. Alcal Roofing and Insulation (No. A092730).
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II.A. through II.C, II.D.2., H.D.3., II.E. and II.F.
[1] Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
[2] Throughout its recitation of the facts and procedural background in its opening brief, HOA purports to set forth a chronology of the case but in numerous instances fails to cite to any evidence in the record to support its facts. It is well settled that a party is required to support the statement of any matter in the record by an appropriate reference to the record. (Cal. Rules of Court, rule 14(a)(1).) To the extent that HOA fails to support its facts with references to the record, we have disregarded its assertions. (Goodstein v. Cedars-Sinai Medical Center (1998) 66 Cal. App. 4th 1257, 1260, fn. 1, 78 Cal. Rptr. 2d 577.)
[3] The parties refer to this notice as the "Calderon" notice. Senator Charles M. Calderon drafted Senate Bill No. 1029 which was subsequently enacted as Civil Code section 1375. (Stats. 1995, ch. 864, § 1, No. 11 West's Cal. Legis. Service, pp. 5117-5121.) Subsequent references to Civil Code section 1375 will refer to the version in effect at the time of service of the Calderon notice.
[4] HOA conducted destructive testing on September 28 and 29, 1999.
[5] In its reply brief, HOA explains that it failed to appeal the Atlas judgment as "a result of the confusion created by the multiple orders and judgments."
[**] See footnote *, ante.
[7] In dicta, we noted that had the defects been discovered in 1982, they "would have triggered a shorter period of time in which to bring suit because the defects would then have been patent, rather than latent, and the four-year statute to bring an action on a patent defect would have applied. (§ 337.1.)" (A & B Painting & Drywall, Inc. v. Superior Court, supra, 25 Cal.App.4th at p. 357, 30 Cal. Rptr. 2d 418.)
[8] In its opening brief, HOA states that it introduced evidence in its opposition to the summary judgments showing that Wong Construction and Atlas committed willful misconduct. HOA makes no reference to New West.
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276106/ | 58 Cal. Rptr. 3d 18 (2007)
149 Cal. App. 4th 1301
The PEOPLE, Plaintiff and Respondent,
v.
Megan Elizabeth WEAVER, Defendant and Appellant.
No. D047993.
Court of Appeal of California, Fourth District, Division One.
April 9, 2007.
*22 Office of the Attorney General, San Diego, CA, for Plaintiff and Respondent.
Patrick Morgan Ford, San Diego, CA, for Defendant and Appellant.
McDONALD, J.
Megan Elizabeth Weaver appeals a judgment entered following her guilty plea to one count of gross vehicular manslaughter while intoxicated (Pen.Code, § 191.5, subd. (a))[1] and her admission of the truth of an allegation she personally inflicted great bodily injury on another person in the commission of that offense (§ 12022.7, subd. (a)). On appeal, Weaver contends the trial court erred by: (1) denying her request for probation; (2) imposing the middle six-year term for her section 191.5, subdivision (a) offense; and (3) imposing a consecutive three-year enhancement under section 12022.7, subdivision (a). She also contends: (1) her conviction of only one offense precludes a court from considering it as two prior serious felony convictions within the meaning of section 1192.7, subdivision (c)(8) and the three strikes law (§ 667, subds. (b)-(i)); and (2) the victim restitution fine imposed by the trial court must be offset by the amount paid by her insurance company.
FACTUAL AND PROCEDURAL BACKGROUND[2]
On August 19, 2004, Weaver graduated from San Diego State University. Celebrating her graduation with friends (including Jaylin Ruiz), Weaver consumed several shots of alcohol (Jaegermeister).
At about 1:00 a.m. on August 20, Ed Thurston, driving his car eastbound on Highway 56 about two to four miles from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway. The car did not have its headlights on and was traveling in the fast lane at a speed of over 70 miles per hour. After it passed him, Thurston saw that the car also did not have its rear taillights on.
Also at about 1:00 a.m., Jose Garcia, driving his car eastbound on Highway 56 about one-half mile from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway. The car had its headlights on and was traveling in the fast lane at a speed of 80 to 90 miles per hour. Garcia swerved to the right to avoid colliding with the car and then swerved left, lost control of his car, and drove into bushes and rocks in the highway's *23 median. The other car did not stop or slow down and merged onto the northbound lanes of Interstate 5 heading south (i.e., the opposite direction of oncoming traffic).
Also at about 1:00 a.m., Scott Tempus, driving his car eastbound on Highway 56 about one-quarter mile from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway.[3] The car had its headlights on and was traveling in the slow lane. After Tempus swerved to avoid the car, the other car merged onto the northbound lanes of Interstate 5 heading south (i.e., the opposite direction of oncoming traffic).
Also at about 1:00 a.m., Anatoly Sigalov (Sigalov) was driving his car northbound on Interstate 5 just south of the onramp or transition to eastbound Highway 56. His wife Mara was sitting in the front passenger seat. Sigalov was traveling about 65 miles per hour, with his car's headlights on, when he saw the reflection of his headlights on the front windshield of an oncoming car, which was only about a "yard away." The other car did not have its headlights on. Weaver was the other car's driver. Without time for Sigalov to react, the two cars collided head-on.[4]
Both cars sustained substantial damage. Mara died from blunt force trauma suffered in the collision. Sigalov suffered cracked ribs and a dislocated right hip, requiring surgery to repair his pelvis.
While being transported to an ambulance, Weaver told an emergency medical technician that she had been drinking. He smelled alcohol on her breath. At 3:45 a.m., blood was drawn from Weaver. Testing of that blood sample showed Weaver's blood alcohol content (BAC) was 0.151 percent. Her blood sample also tested positive for the presence of cocaine, suggesting she had consumed cocaine about two to three hours before the blood was drawn.[5]
On December 10, an information was filed, charging Weaver with five counts: (1) gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); (2) driving under the influence, causing injury (Veh. Code, § 23153, subd. (a)); (3) driving with a BAC of 0.08 percent or greater and causing injury (Veh.Code, § 23153, subd. (b)); (4) driving the wrong way on a divided highway and causing injury (Veh.Code, § 21651, subds. (b) and (c)); and (5) hit and run driving (Veh.Code, § 20002, subd. (a)). The information also alleged that: (1) in committing counts 1 through 3, Weaver caused bodily injury or death (Veh.Code, § 23558); (2) in committing count 1, she personally inflicted great bodily injury on Sigalov (§ 12022.7, subd. (a)); (3) in committing counts 2 through 4, she personally inflicted great bodily injury on Mara and Sigalov (§ 12022.7, subd. (a)); and (4) regarding counts 1 through 4, her offenses constituted serious felonies within the meaning of section 1192.7, subd. (c)(8) because she inflicted great bodily injury on Mara and Sigalov.
*24 On September 28, 2005, the date scheduled for trial, Weaver pleaded guilty to count 1 (§ 191.5, subd. (a)) and admitted the truth of the allegations related to count 1, including that in committing the section 191.5, subdivision (a) offense she personally inflicted great bodily injury on Sigalov within the meaning of section 12022.7, subdivision (a) and on Sigalov and Mara within the meaning of section 1192, subdivision (c)(8). Pursuant to her plea agreement with the prosecution, the trial court dismissed the remaining charges and allegations.
On December 14, the trial court denied probation and sentenced Weaver to the middle term of six years for count 1 and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement, for a total term of nine years.[6] Pursuant to section 654, the trial court stayed imposition of the one-year enhancement under Vehicle Code section 23558. The court also imposed a restitution fine of $229,479, "subject to modification upward or downward on the application by counsel and a hearing can be held." It expressly retained jurisdiction to address the issue of restitution and to amend the judgment.
On February 6, 2006, Weaver filed a notice of appeal.
On March 20, Weaver filed a motion to recall her sentence pursuant to section 1170, subdivision (d), requesting that the trial court recall its sentence, impose the lower four-year term for count 1, and strike the enhancement for her infliction of great bodily injury.[7] Attached to her motion were declarations of her former boyfriend (Jacob Ramsey) and Danielle Steinke, who was at the party, explaining some of the events preceding the incident and why Weaver drove her car that night while intoxicated. Based on those declarations, her motion argued in part that she intended to stay overnight at her friend Ruiz's house and had not planned to drive her car that night, but did so only after her then-boyfriend (Ramsey) called and asked her to come home to Spring Valley.
On March 21, the trial court denied Weaver's motion.[8]
DISCUSSION
I
Denial of Probation
Weaver contends the trial court abused its discretion by denying her request that she be granted probation. She argues the trial court considered improper factors and did not consider relevant factors.
A
At Weaver's sentencing, the trial court received and considered the probation report, the prosecution's statement in aggravation, Weaver's statement in mitigation, and letters from, and testimonies of, family and friends of both Mara and Weaver.[9]*25 The probation report recommended probation be denied and the court impose the middle term of six years for count 1 and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement. The prosecution's statement in aggravation requested probation be denied and the court impose the upper term of 10 years for count 1 and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement. Weaver's statement in mitigation requested probation be granted.
After hearing arguments of counsel, the trial court found Weaver was genuinely remorseful and was not a chronic partygoer in college. It also noted the "dreadful" injuries suffered by Sigalov. The court stated that in sentencing Weaver, its job was to apply the law to this case while considering "the framework of protecting society, meting out an appropriate punishment deterring others, hopefully preventing other crimes and achieving some degree of uniformity in sentencing." The court noted that California Rules of Court, rule 4.414[10] guided its consideration of whether to grant or deny probation. The court stated:
"There are factors that weigh on both sides [i.e., granting or denying probation]. Certainly in favor of grant of probation is this young woman's youth, her lack of significant record, just one speeding ticket and her absence of actual malice in this case[, h]er genuine remorse and her ability to comply with the conditions of probation if probation were granted.
"On the other side of the [equation] lies the horrific nature of this offense. The dreadful loss to this family, the fact that Ms. Weaver ... did not stop her driving after the first near miss, the high blood alcohol, the presence of drugs. I find the drug was cocaine....
"Mr. Sigalov, I think, unknowingly touched on another factor that I think was important and that is the vulnerability of him and his wife. They're driving on a highway in a lane that they're lawfully allowed to drive on at a speed they're lawfully allowed to drive. And one does not expect this to happen under those circumstances."
Considering those factors, the trial court denied probation as "not appropriate."
B
"All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise." (People v. Aubrey (1998) 65 Cal. App. 4th 279, 282, 76 Cal. Rptr. 2d 378.) "The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]" (Ibid.) "In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances." (People v. Superior Court (Du ) (1992) 5 Cal. App. 4th 822, 825, 7 Cal. Rptr. 2d 177.)
"The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]" (People v. Birmingham (1990) 217 Cal. App. 3d 180, 185, 265 Cal. Rptr. 780.) Rule 4.410 provides:
"(a) General objectives of sentencing in, elude:
"(1) Protecting society;
*26 "(2) Punishing the defendant;
"(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;
"(4) Deterring others from criminal conduct by demonstrating its consequences;
"(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;
"(6) Securing restitution for the victims of crime; and
"(7) Achieving uniformity in sentencing.
"(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case."
Regarding a trial court's decision whether to grant or deny probation, rule 4.414 provides:
"Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.
"(a) Facts relating to the crime[.] [¶] Facts relating to the crime include:
"(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] ... [¶]
"(3) The vulnerability of the victim;
"(4) Whether the defendant inflicted physical or emotional injury;
"(5) The degree of monetary loss to the victim;
"(6) Whether the defendant was an active or a passive participant;
"(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶] ... [¶]
"(b) Facts relating to the defendant[.] [¶] Facts relating to the defendant include:
"(1) Prior record of criminal conduct ...; [¶] . . . [¶]
"(3) Willingness to comply with the terms of probation;
"(4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;
"(5) The likely effect of imprisonment on the defendant and his or her dependents;
"(6) The adverse collateral consequences on the defendant's life resulting from the felony conviction;
"(7) Whether the defendant is remorseful; and
"(8) The likelihood that if not imprisoned the defendant will be a danger to others."
In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rule 4.406(b)(2); rule 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)
"The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance *27 of the evidence. [Citations.]" (People v. Leung (1992) 5 Cal. App. 4th 482, 506, 7 Cal. Rptr. 2d 290.) Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. (Id. at pp. 506-507, 7 Cal. Rptr. 2d 290.)
C
Weaver argues the trial court considered improper factors in deciding whether to grant or deny probation.[11] She asserts the trial court improperly considered "victim vulnerability." However, rule 4.414(a)(3) expressly lists "[t]he vulnerability of the victim" as a relevant fact relating to the crime that should be considered by a trial court in deciding whether to grant or deny probation. In this case, although the probation report did not list that factor, the prosecution's statement in aggravation did list the "vulnerability of the victim" as a reason supporting denial of probation, stating:
"Both Anatoly and Mara Sigalov were vulnerable victims, in the sense that they never had a chance to defend themselves against the defendant. The Sigalov's were driving on a highway in the darkness of the night. They were driving legally, and safely. They were driving the speed limit, with the headlights of their car on. The defendant was driving towards them at approximately 70 miles per hour, heading in the wrong direction, with her headlights off. The Sigalov's were completely vulnerable to the defendant's actions."
The trial court expressly relied on the vulnerability of the victims as a factor in deciding to deny probation, stating:
"[A]nother factor that I think was important ... is the vulnerability of [Sigalov] and his wife. They're driving on a highway in a lane that they're lawfully allowed to drive on at a speed they're lawfully allowed to drive. And one does not expect this to happen under those circumstances."
Victim "[vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act." (People v. Smith (1979) 94 Cal. App. 3d 433, 436, 156 Cal. Rptr. 502 [describing that term in the context of rule 4.421(a)(3) ].)[12] Based on our review of the record, we conclude there is sufficient evidence to support the trial court's finding that Sigalov and Mara were vulnerable victims of Weaver's crime within the meaning of rule 4.414(a)(3). Weaver's car was traveling in the opposite direction of oncoming traffic on northbound Interstate 5 at a high rate of speed.[13] Despite the late-night darkness, its headlights were off. In contrast, the Sigalovs' car was traveling in the proper direction at a normal rate of speed and had its headlights on. Based on those circumstances, the trial court could reasonably conclude Sigalov and Mara were vulnerable within the meaning of rule 4.414(a)(3) because *28 they had absolutely no advance warning or ability to avoid Weaver's oncoming car.
Although Weaver argues Sigalov and Mara were not "particularly" vulnerable victims, that finding is not required under rule 4.414(a)(3) and, in any event, the record supports a finding they were, in fact, particularly vulnerable victims. Citing People v. Bloom (1983) 142 Cal. App. 3d 310, 190 Cal. Rptr. 857 and People v. Piceno (1987) 195 Cal. App. 3d 1353, 241 Cal. Rptr. 391, Weaver asserts that because all victims of gross vehicular manslaughter are vulnerable, no victim of gross vehicular manslaughter can be "particularly" vulnerable. However, in so arguing, Weaver relies solely on cases involving only rule 4.421(a)(3), which provides that one circumstance in aggravation for purposes of deciding whether to impose an upper, middle, or lower term is whether "[t]he victim was particularly vulnerable." (Italics added.) That circumstance (and its "particularly" requirement) is inapplicable here because rule 4.421 does not address circumstances to be considered in granting or denying probation. Furthermore, rule 4.414(a)(3) does not include the qualifying term "particularly" in listing the "vulnerability" of a victim as a circumstance to be considered in granting or denying probation. Therefore, we conclude that neither rule 4.421(a)(3)'s requirement that a victim be "particularly" vulnerable nor the interpretations of that term in Bloom and Piceno apply to the trial court's denial of probation in this case.[14] To the extent the court in People v. McNiece (1986) 181 Cal. App. 3d 1048, 226 Cal. Rptr. 733 (disapproved on another ground in People v. McFarland (1989) 47 Cal. 3d 798, 804-805, 254 Cal. Rptr. 331, 765 P.2d 493) concluded otherwise, we disagree with its reasoning and therefore decline to apply its holding in the circumstances of this case.[15] In any *29 event, assuming arguendo that requirement applied, we nevertheless would conclude there is substantial evidence to support a finding that Sigalov and Mara, in the circumstances of this case, were, in fact, particularly vulnerable victims of Weaver's offense. There is no empirical evidence in the appellate record showing that the "usual" victim of gross vehicular manslaughter has absolutely no advance warning or ability to attempt to avoid the defendant's car. On the contrary, one can envision many situations involving gross vehicular manslaughter (whether a section 191.5, subdivision (a) offense or otherwise) in which the victim has at least some advance notice or warning of the imminent risk posed by the defendant's car, thereby allowing him or her at least some opportunity to attempt to avoid the collision. Those victims presumably should be considered less vulnerable than Sigalov and Mara in this case. Weaver's car was traveling in the opposite direction of oncoming traffic on northbound Interstate 5 at a high rate of speed. Despite the late-night darkness, its headlights were off. In contrast, the Sigalovs' car was traveling in the proper direction at a normal rate of speed and had its headlights on. Based on those circumstances, the trial court could have reasonably concluded Sigalov and Mara were particularly vulnerable because they, apparently unlike "usual" victims of gross vehicular manslaughter, had absolutely no advance warning or ability to attempt to avoid the oncoming car.
Weaver also argues the trial court erred by improperly considering the "horrific nature of this offense," which included the "dreadful loss" to the victim's family, Weaver's continuation of driving after the "near miss" prior to the collision, her high BAC, and the presence of cocaine in her system. However, rule 4.414(a)(1) expressly provides that a trial court should consider "[t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime." Also, rule 4.414 provides that the trial court should consider "[w]hether the defendant inflicted physical or emotional injury" (rule 4.414(a)(4)) and "[t]he degree of monetary loss to the victim" (rule 4.414(a)(5)). Therefore, the trial court properly considered the "horrific nature," or the nature, seriousness, and circumstances, of Weaver's *30 offense when compared to other section 191.5, subdivision (a) offenses, as well as the physical and emotional injuries and monetary loss Weaver inflicted on the victims of her offense. The trial court implicitly concluded, and we cannot presume otherwise, that "other instances" of section 191.5, subdivision (a) offenses do not involve the same egregious circumstances as in this case. (Rule 4.414(a)(1).) Furthermore, the trial court properly considered the "dreadful loss" to the victim's family because rule 4.414 does not require the physical and emotional injuries or economic losses of the victim and/or the victim's family be particularly great or unusual in comparison to other instances of section 191.5, subdivision (a) offenses. (Rule 4.414(a)(4), (a)(5).) Rather, the physical and/or emotional injuries and the monetary losses inflicted on the victim and/or the victim's family should be considered by a trial court in all cases in deciding whether to grant or deny probation. (Ibid.)
D
Weaver also contends the trial court erred by not considering certain circumstances that would have supported a decision to grant probation. She argues the trial court should have considered the following circumstances: (1) her crime was unlikely to recur (rule 4.414(a)(7)); (2) it was unlikely that she would be a danger to others were she not imprisoned (rule 4.414(b)(8)); (3) the likely effect of imprisonment on her (rule 4.414(b)(5)); (4) the adverse collateral consequence on her life because of her conviction (rule 4.414(b)(6)); and (5) the physical and emotional injuries that she inflicted on herself (rule 4.408(a)). Although the trial court did not expressly state it considered some or all of those circumstances, we note the probation report listed three of them (namely, circumstances (2), (3), and (4), listed above).[16] Also, in Weaver's statement in mitigation, she listed and discussed circumstances (1) through (4), above, in support of her request for probation.[17] Because the trial court expressly stated on the record that it received and considered both of those documents, we presume the court did, in fact, consider those circumstances even though it did not expressly restate, recite, or otherwise refer to each one. As we noted above, unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.) Regarding circumstance (5) suggested by Weaver, we also presume the trial court was aware of, and considered, the circumstances of Weaver's physical and emotional injuries in denying probation, despite the fact neither the court, nor any of the sentencing documents (including Weaver's own statement in mitigation), expressly referred to those injuries as a circumstance supporting a grant of probation.
Finally, Weaver argues the trial court improperly considered her youth as a factor that would support a grant of probation.[18]*31 She argues a defendant's youth is not listed as a factor in rule 4.414, but is listed as factor in rule 4.413(c)(2)(C), which only applies in unusual cases when probation is presumptively disfavored by statute. However, as noted above, rule 4.408(a) allows a court to consider additional factors not listed in the sentencing rules, provided those additional factors are stated on the record and are reasonably related to the decision being made. Because Weaver's youth is reasonably related to the court's decision whether to grant or deny probation, we conclude the court properly considered her youth as factor that would support a grant of probation.
E
Although we conclude the trial court did not abuse its discretion or otherwise err in considering circumstances regarding the grant or denial of probation, we further note that Weaver has not made any attempt to carry her appellate burden to show the errors purportedly made by the court were prejudicial. Alternatively stated, assuming arguendo the trial court erred as Weaver asserts, she has not shown it is reasonably probable the court would have granted her probation had it not so erred. (People v. Price (1991) 1 Cal. 4th 324, 492, 3 Cal. Rptr. 2d 106, 821 P.2d 610 ["When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]"].) We conclude any error the trial court may have made in denying probation was harmless.
II
Imposition of Middle Six-Year Term
Weaver contends the trial court abused its discretion by imposing the middle six-year term for her section 191.5, subdivision (a) offense. She argues the trial court considered certain improper factors' as aggravating circumstances.
A
After hearing arguments of counsel and denying probation, the trial court addressed the issue of what term of imprisonment to impose for Weaver's section 191.5, subdivision (a) offense, stating:
"With respect to the charge of manslaughter that brings us here today, there are three sentencing ranges. There is a sentencing range of three terms. These are four years, six years and ten years: the lower, the middle, and the upper term respectively. The Rules of Court direct that I look at the circumstances in aggravation and those in mitigation and that I weigh those and balance those. Those circumstances again look at the offense and the offender. There can be aggravated as well as mitigated circumstances about the offense and aggravated and mitigated circumstances about the offender.
"At the risk of oversimplifying it, if there is an aggravated offense with an aggravated offender, then the upper term is called for. That's the ten-year term. If there is a mitigated offense with a mitigated offender, then the lower term is called for. That's the term of four years. If one part of the coin is aggravated and the other part is mitigated, *32 the court is asked to weigh qualitatively and quantitatively these factors and decide the appropriate term.
"Here the offense is aggravated. I have described that. I don't need to describe it again. I don't need to make people listen to that anymore. It is a dreadful loss `and a horrifying event. The circumstances regarding Ms. Weaver are in this court's mind entirely mitigating, but for her decision to drive that night, which perhaps none of us will fully understand.
"I, therefore, conclude that the midterm of six years is appropriate with respect to the substantive charge...."
Accordingly, the trial court imposed the middle six-year term for Weaver's section 191.5, subdivision (a) offense.
B
A section 191.5, subdivision (a) offense (gross vehicular manslaughter while intoxicated) is punishable by imprisonment for four, six, or 10 years. (§ 191.5, subd. (c).) Section 1170, subdivision (b) provides:
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. The court shall set forth on the record the facts and reasons for imposing the upper or lower term. ..." (Italics added.)
Rule 4.420(a) provides:
"When a sentence of imprisonment is imposed ..., the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in section 1170[, subdivision] (b) and these rules. The middle term must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation." (Italics added.)
Pursuant to section 1170, subdivision (b) and rule 4.420(a), "[t]he middle term is the presumptive term." (Levenson, Cal. Criminal Procedure (2006-2007) Sentencing, § 25:50, p. 1134.) The California Supreme Court stated: "[S]ection 1170, subdivision (b) can be characterized as establishing the middle term sentence as a presumptive sentence." (People v. Black (2005) 35 Cal. 4th 1238, 1257, 29 Cal. Rptr. 3d 740, 113 P.3d 534, overruled on another ground in Cunningham v. California (2007) 549 U.S. ___, 127 S. Ct. 856, 859, 166 L. Ed. 2d 856 (hereafter Cunningham) [holding California's determinate sentencing law violates the Sixth Amendment of the United States Constitution to the extent it permits imposition of an upper term based on facts found by a trial court or by a preponderance of the evidence].)[19] "The trial court must impose the middle term unless it finds circumstances mitigating or aggravating the offense. [Citation.]" (People v. Leung, supra, 5 Cal.App.4th at p. 508, 7 Cal. Rptr. 2d 290.) "Because the middle term is the presumptive term, the sentencing court need not state reasons for selecting it, as it must for selection of either the lower or upper term. [Citations.]" *33 (Cal.Criminal Law: Procedure and Practice (Cont.Ed.Bar 2006 ed.) Felony Sentencing, § 37.8, p. 1080.)
C
Weaver argues the trial court abused its discretion by imposing the middle six-year term for her section 191.5, subdivision (a) offense because it erroneously relied on certain improper aggravating circumstances.[20] She also argues there is insufficient evidence to support the trial court's finding that the circumstances relating to the offense were aggravating.
Weaver asserts the trial court erred by relying on victim vulnerability as an aggravating circumstance. Citing Bloom and Piceno, discussed above, she argues victim vulnerability cannot be an aggravating circumstance because all victims of gross vehicular manslaughter are vulnerable. She argues all such offenses are "horrific" and all losses suffered by victims' families are "dreadful."[21] However, rule 4.421(a)(3) provides that circumstances in aggravation include whether "[t]he victim was particularly vulnerable." "`[P]articular vulnerability' is determined in light of the `total milieu in which the commission of the crime occurred....' [Citation.]" (People v. Dancer (1996) 45 Cal. App. 4th 1677, 1694, 53 Cal. Rptr. 2d 282, disapproved on another ground in People v. Hammon (1997) 15 Cal. 4th 1117, 1123, 65 Cal. Rptr. 2d 1, 938 P.2d 986.) As we concluded in part I ante, there is substantial evidence to support a finding that Sigalov and Mara, in the circumstances of this case, were in fact particularly vulnerable victims of Weaver's crime. There is no empirical evidence in the appellate record showing that the "usual" victim of gross vehicular manslaughter has absolutely no advance warning or ability to attempt to avoid the defendant's car. On the contrary, one can envision many situations involving gross vehicular manslaughter (whether a section 191.5, subdivision (a) offense or otherwise) in which the victim has at least some advance notice or warning of the imminent risk posed by the defendant's car that allows him or her at least some opportunity to attempt to avoid the collision. Those victims presumably should be considered less vulnerable than Sigalov and Mara in this case. Weaver's car was traveling in the opposite direction of oncoming traffic on northbound Interstate 5 at a high rate of speed. Despite the late-night darkness, its headlights were off. In contrast, the Sigalovs' car was traveling in the proper direction at a normal rate of speed and had its headlights on. Based on those circumstances, the trial court could have reasonably concluded Sigalov and Mara were particularly vulnerable because they, apparently unlike "usual" victims of gross vehicular manslaughter, had absolutely no advance warning or ability to attempt to avoid the oncoming car.
To the extent Weaver argues the trial court could not consider whether the offense was "horrific" or argues there is insufficient evidence to support that finding, we note rule 4.421(a)(1) permits a trial court to consider as an aggravating circumstance whether the offense "involved great violence, great bodily harm, *34 threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." The trial court's description of the offense as "horrific" may fall within that rule. In any event, rule 4.408(a) authorizes a trial court to consider "additional criteria reasonably related to the decision being made." The trial court could reasonably conclude the "horrific" nature of Weaver's offense was reasonably related to its sentencing choice. Therefore, it properly considered that factor as an aggravating circumstance.[22] Furthermore, contrary to Weaver's assertion, there is substantial evidence to support the trial court's finding that her offense was horrific. Weaver argues the evidence submitted in support of her motion to recall shows her conduct was not horrific and may have not constituted gross negligence. However, in sentencing Weaver, the trial court did not have that evidence before it and therefore we need not address that subsequently-filed evidence.[23] In any event, assuming arguendo the trial court had received evidence at the time of sentencing showing Weaver had not planned to drive that night while intoxicated and decided to do so only after she became intoxicated when her then-boyfriend pleaded with her to come home, the trial court could nevertheless reasonably conclude Weaver's conduct in deciding to drive and her actions in driving while intoxicated were horrific.
Furthermore, contrary to Weaver's assertion, we conclude the trial court reasonably considered as aggravating circumstances her continuation of driving after the "near-miss" prior to the collision, her high BAC, and the presence of cocaine in her system. There is substantial evidence to support those findings and rule 4.408(a) authorized the trial court to consider them in making its sentencing choice. Although Weaver argues those circumstances were not unlike circumstances in other section 191.5, subdivision (a) offenses, there is no requirement under rule 4.408 or 4.421 (or otherwise) that those circumstances be particularly egregious in comparison with other like offenses.
We conclude the trial court properly considered the aggravating circumstances of Weaver's offense in imposing the middle six-year term.[24] (Cf. People v. Leung, supra, 5 Cal.App.4th at p. 508, 7 Cal. Rptr. 2d 290 ["The middle term need not be additionally justified."].)
D
On January 22, 2007, after the parties' briefs were filed in this appeal, the United States Supreme Court issued its opinion in Cunningham, supra, 127 S. Ct. 856. We *35 requested the parties submit, and have received and considered, supplemental briefs on the effect, if any, of Cunningham on this case. We asked the parties to address the question whether Cunningham requires a resentencing hearing in this case because the trial court, in imposing the middle six-year term, considered aggravating and mitigating circumstances not found true by a jury beyond a reasonable doubt.
In Cunningham, the court noted California's determinate sentencing law (DSL) and relevant sentencing rules "direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record factswhether related to the offense or the offenderbeyond the elements of the charged offense." (Cunningham, supra, 127 S.Ct. at p. 862.) Furthermore, "an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance." (Id. at p. 868.) Cunningham concluded: "In accord with [Blakely v. Washington (2004) 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403] therefore, the middle term prescribed in California's statutes, not the upper term, is the relevant statutory maximum." (Id. at p. 868, italics added.) Accordingly, Cunningham held:
"Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt [citation], the DSL violates Apprendi's [Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435] bright-line rule: Except for a prior conviction, `any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' [Citation.]" (Id. at p. 868.)
In rejecting the California Supreme Court's contrary conclusion in People v. Black, supra, 35 Cal. 4th 1238, 29 Cal. Rptr. 3d 740, 113 P.3d 534, Cunningham stated: "Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment." (Cunningham, supra, at p. 859.)
Weaver argues: (1) the "Blakely waiver" in her change of plea form did not waive her right to proof of aggravating factors beyond a reasonable doubt; and (2) the trial court's imposition of the middle term in the circumstances of this case violated her Sixth Amendment rights. Assuming arguendo Weaver's change of plea form did not waive her right to proof of aggravating factors beyond a reasonable doubt, we nevertheless conclude the trial court properly imposed the middle six-year term. As she concedes, under California's sentencing laws, the middle term is the statutory presumptive term and a trial court can impose that term without stating its reasons. (§ 1170, subd. (b).)[25] Furthermore, rule 420(a) provides in part: "The middle term must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation." Because under section 1170, subdivision (b) and Cunningham the relevant statutory maximum sentence under California's DSL is the middle term, the Sixth Amendment is not implicated when a trial court imposes the middle *36 term. As Cunningham noted, only a fact that increases a sentence beyond its prescribed statutory maximum (e.g., the middle term under California's DSL) requires its submission to a jury and proof beyond a reasonable doubt. (Cunningham, supra, at p. 868; Apprendi supra, 530 U.S. at p. 490,120 S. Ct. 2348.)
The fact the trial court considered the circumstances involving the offender (i.e., her personal circumstances) "entirely mitigating," did not make the lower four-year term (rather than the middle six-year term) the presumptive or relevant statutory maximum for purposes of the Sixth Amendment as discussed in Apprendi and Cunningham. Although the trial court weighed those mitigating circumstances against the aggravating circumstances of the offense in choosing to impose the middle six-year term, the presumptive or relevant statutory maximum remained the middle term at all times. Under California's DSL and the Sixth Amendment, as interpreted by Apprendi and Cunningham, there is no "shifting" relevant statutory maximum, as Weaver apparently asserts, where a trial court initially considers some mitigating circumstances (e.g., which, by themselves, might support imposition of a lower term), then considers other aggravating circumstances, and ultimately imposes the middle term after weighing all of the circumstances. Accordingly, the trial court's imposition of the middle six-year term in the circumstances of this case did not violate or implicate the Sixth and Fourteenth Amendments.
E
Although we conclude the trial court did not abuse its discretion or otherwise err in considering aggravating and mitigating circumstances in imposing the middle six-year term for Weaver's section 191.5, subdivision (a) offense, we further note she has not made any attempt to carry her appellate burden to show the errors purportedly made by the court were prejudicial. Alternatively stated, assuming arguendo the trial court erred as Weaver asserts, she has not shown it is reasonably probable the court would have imposed the lower four-year term had it not so erred. (People v. Price, supra, 1 Cal.4th at p. 492, 3 Cal. Rptr. 2d 106, 821 P.2d 610 ["When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]"].) Accordingly, we conclude that any error the trial court may have made in imposing the middle term was harmless.
III
Section 12022.7, Subdivision (a) Enhancement
Weaver contends the trial court erred by imposing a three-year enhancement under section 12022.7, subdivision (a) for great bodily injury she personally inflicted on Sigalov in committing the section 191.5, subdivision (a) offense.
A
Weaver pleaded guilty to gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) and admitted the truth of the allegations that in committing that offense she personally inflicted great bodily injury on Sigalov (§ 12022.7, subd. (a)) and caused bodily injury or death (Veh.Code, § 23558). The trial court sentenced Weaver to the middle term of six years for her section 191.5, subdivision (a) offense and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement, for a total term of nine years. Pursuant to *37 section 654, the trial court stayed imposition of the one-year enhancement under Vehicle Code section 23558.
B
Section 12022.7, subdivision (a) provides:
"Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony ... shall be punished by an additional and consecutive term of imprisonment in the state prison for three years."
Section 12022.7, subdivision (g) provides: "This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. [Subdivision] (a) ... shall not apply if infliction of great bodily injury is an element of the offense." People v. Guzman (2000) 77 Cal. App. 4th 761, 91 Cal. Rptr. 2d 885 stated: "Section 12022.7 is a legislative attempt to punish more severely those crimes that actually result in great bodily injury. [Citation.] It applies except where serious bodily injury is already an element of the substantive offense charged. [Citation.]" (Id. at p. 765, 91 Cal. Rptr. 2d 885.)
In comparison, Vehicle Code section 23558 provides:
"Any person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of [Vehicle Code] Section 23153 of this code or in violation of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, shall, upon a felony conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code, receive an enhancement of one year in the state prison for each additional injured victim. The enhanced sentence provided for in this section shall not be imposed unless the fact of the bodily injury to each additional victim is charged in the accusatory pleading and admitted or found to be true by the trier of fact. The maximum number of one year enhancements which may be imposed pursuant to this section is three...."
C
Weaver asserts the trial court erred by imposing the three-year section 12022.7, subdivision (a) enhancement rather than the one-year Vehicle Code section 23558 enhancement because the latter statute (i.e., Veh.Code, § 23558) is the more specific statute and therefore preempts application of the more general statute (i.e., § 12022.7, subd. (a)).
"The preemption doctrine provides that a prosecution under a general criminal statute with a greater punishment is prohibited if the Legislature enacted a specific statute covering the same conduct and intended that the specific statute would apply exclusively to the charged conduct. [Citations.]" (People v. Jones (2003) 108 Cal. App. 4th 455, 463, 133 Cal. Rptr. 2d 358, italics added.) "The `special over the general' rule, which generally applies where two substantive offenses compete, has also been applied in the context of enhancement statutes. [Citation.] The rule does not apply, however, unless `each element of the "general" statute corresponds to an element on the face of the "specific" [sic] statute' or `it appears from the entire context that a violation of the "special" statute will necessarily or commonly result in a violation of the "general" statute.' [Citations.]" (People v. Coronado (1995) 12 Cal. 4th 145, 153-154, 48 Cal. Rptr. 2d 77, 906 P.2d 1232, quoting People v. Jenkins (1980) 28 Cal. 3d 494, 502, 170 Cal. Rptr. 1, 620 P.2d 587.) In Jenkins. the California Supreme Court stated: "[T]he courts must consider the context in *38 which the statutes are placed. If it appears from the entire context that a violation of the `special' statute will necessarily or commonly result in a violation of the 'general' statute, the [preemption] rule may apply even though the elements of the general statute are not mirrored on the face of the special statute." (Jenkins, at p. 502, 170 Cal. Rptr. 1, 620 P.2d 587, second italics added.) However, even if either of the two alternative tests are satisfied, the special statute will not be applied under the preemption doctrine if the Legislature intended the general statute to apply. (People v. Sainz (1999) 74 Cal. App. 4th 565, 572, 88 Cal. Rptr. 2d 203; Jones, at p. 464, 133 Cal. Rptr. 2d 358.)
Weaver does not assert that the first alternative test of the preemption doctrine applies (i.e., that each element of section 12022.7, subdivision (a) corresponds to an element on the face of Vehicle Code section 23558).[26] Rather, she asserts the second alternative test applies and thereby requires imposition of only the one-year enhancement under Vehicle Code section 23558 (and not the three-year enhancement under section 12022.7, subdivision (a)). She argues that because a violation of Vehicle Code section 23558 (the special statute) will commonly result in a violation of section 12022.7, subdivision (a) (the general statute), the preemption doctrine applies and requires imposition of only the Vehicle Code section 23558 enhancement.[27] However, our review of those statutes does not support that assertion. Vehicle Code section 23558 applies to a defendant who "proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of [Vehicle Code] Section 23153 of this code or in violation of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code." Accordingly, its provisions may apply to three separate offenses: (1) driving while intoxicated and proximately causing bodily injury (Veh.Code, § 23153); (2) gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); and (3) vehicular manslaughter while intoxicated but without gross negligence (§ 192, subd. (c)(3)). Because Vehicle Code section 23558 can apply when the defendant drives while intoxicated and only proximately causes bodily injury, we cannot conclude Vehicle Code section 23558 will commonly result in a violation of section 12022.7, subdivision (a), which statute requires personal infliction of great bodily injury. Furthermore, our independent review of the appellate record shows it does not contain any empirical evidence proving that driving while intoxicated and proximately causing bodily injury also commonly results in personal infliction of great bodily injury. Although Weaver argues a section 191.5, subdivision (a) offense commonly results in personal infliction of great bodily injury, that offense is only one of the three offenses listed in Vehicle Code section 23558. (Cf. People v. Arndt, supra, 76 Cal.App.4th at p. 393, 90 Cal. Rptr. 2d 415 ["The conduct triggering the application of Vehicle Code section 23182 [predecessor to Vehicle Code section 23558] will not necessarily result in the application of section ... 12022.7."].)
*39 In any event, we conclude the legislative intent of section 12022.7, subdivision (a) shows its greater three-year enhancement was intended to apply despite the potential availability of lesser enhancements. "A plain reading of ... section 12022.7 indicates the Legislature intended it to be applied broadly." People v. Sainz, supra, 74 Cal.App.4th at p. 574, 88 Cal. Rptr. 2d 203 [concluding former Veh. Code, § 23190, subds. (b) & (c), as the purported special statute, did not preclude imposition of a section 12022.7 enhancement].) "[T]he Legislature may provide for increased punishment for an offense that has more serious consequences by, for instance, ... adding enhancements...." (Wilkoff v. Superior Court (1985) 38 Cal. 3d 345, 352, 211 Cal. Rptr. 742, 696 P.2d 134, superseded by statute on another ground as noted in People v. Arndt, supra, 76 Cal.App.4th at pp. 393-394, 90 Cal. Rptr. 2d 415.) The purpose of Vehicle Code section 23558 "is to increase the potential punishment available in certain cases where an alcohol- or drug-impaired individual operating a vehicle or watercraft causes an accident which results in multiple injuries, not to limit the use of another otherwise applicable enhancement [e.g., section 12022.7]." (People v. Arndt, supra, 76 Cal.App.4th at p. 394, 90 Cal. Rptr. 2d 415, italics added.) We cannot conclude the Legislative intended only a one-year enhancement be imposed under Vehicle Code section 23558 when a defendant commits a section 191.5, subdivision (a) offense and personally inflicts great bodily injury (which conduct would otherwise result in imposition of a three-year enhancement under section 12022.7, subdivision (a)). (Cf. People v. Corban (2006) 138 Cal. App. 4th 1111, 1118-1119, 42 Cal. Rptr. 3d 184 [defendant did not show the Legislature intended section 12022.95, as the purported special statute, to apply instead of section 12022.7, subdivision (d) ].)
D
Weaver also asserts the trial court erred by imposing the three-year section 12022.7, subdivision (a) enhancement because she pleaded guilty only to a charged section 191.5, subdivision (a) offense, which is "victim-specific" (i.e., Mara was the victim of that offense) and thereby precluding a section 12022.7, subdivision (a) enhancement for her personal infliction of great bodily injury on the other person injured in the collision (e.g., Sigalov). Although she notes that in People v. Verlinde (2002) 100 Cal. App. 4th 1146, 123 Cal. Rptr. 2d 322 we concluded a section 12022.7, subdivision (a) enhancement could be imposed for injuries to persons other than the deceased victim in a vehicular manslaughter, she attempts to distinguish that case by noting in Verlinde the defendant was convicted of both vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) and driving under the influence and causing bodily injury (Veh.Code, § 23153, subds.(a), (b)). (Verlinde, at p. 1154, 123 Cal. Rptr. 2d 322.) Because in Verlinde the section 12022.7, subdivision (a) enhancement could have been independently imposed based on the lesser Vehicle Code section 23153, subdivision (a) or (b) offense, Weaver argues Verlinde is inapposite because it involved also a "non-victim-specific" offense and therefore its reasoning cannot be applied to her case.
In Verlinde, we rejected the defendant's argument that a section 12022.7, subdivision (a) enhancement could not apply because section 12022.7, subdivision (g) precludes application of section 12022.7's enhancement provisions to murder and manslaughter offenses. We stated: *40 "The language of section 12022.7, subdivision (g) does not limit application of the statute to this vehicular manslaughter case where, in addition to the homicide victim, two other victims suffered great bodily injury. The statutory exemption for murder and manslaughter is intended to bar imposition of an enhancement for the injuries inflicted on the homicide victim, who obviously has suffered great bodily injury. Thus, the statutory exemption prevents prohibited dual punishment for the same crime. (See § 654.) `When a defendant engages in violent conduct that injures several persons, he may be separately punished for injuring each of those persons, notwithstanding section 654. [Citation.]' [Citation.] Verlinde's argument is inconsistent with a fundamental object of our penal justice system, namely that one's culpability and punishment should be commensurate with the gravity of both the criminal act undertaken and the resulting injuries.' [Citation.] Furthermore, a fundamental principle of statutory construction is that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. [Citation.]" People v. Verlinde, supra, 100 Cal. App.4th at pp. 1168-1169, 123 Cal. Rptr. 2d 322, italics added.)
Accordingly, we upheld the trial court's imposition of a three-year section 12022.7, subdivision (a) enhancement for the person) injured other than the deceased victim of the vehicular manslaughter. People v. Verlinde, supra, at p. 1169, 123 Cal. Rptr. 2d 322.)[28]
We are not persuaded by Weaver's attempt to avoid the application of Verlinde to her case based on the difference that the defendant in Verlinde was convicted of both a "victim-specific" offense and a "non-victim-specific" offense. There is no logical reason to preclude application of section 12022.7, subdivision (a) when a defendant personally inflicts great bodily injury on persons other than the victim of a "victim-specific" offense, but to allow its application when those other persons were injured in the commission of a "non-victim-specific" offense. For example, in Arndt the trial court imposed a separate section 12022.7 enhancement for each of the three persons on whom the defendant personally inflicted great bodily injury in the commission of one "non-victim-specific" offense (i.e., Veh.Code, § 23153, subd. (a)). (People v. Arndt, supra, 76 Cal.App.4th at pp. 391-392, 90 Cal. Rptr. 2d 415.) Arndt upheld imposition of the three separate section 12022.7 enhancements because the defendant "inflicted great bodily injury on three separate persons." (Id. at p. 399, 90 Cal. Rptr. 2d 415.) There is no discernable reason a defendant's punishment should be less when the persons on whom he or she personally inflicted injuries were injured in the commission of a "victim-specific" offense, rather than a "non-victim-specific" offense.
Weaver does not persuade us that section 12022.7, subdivision (a) is inapplicable in a case involving only a "victim-specific" murder or manslaughter offense where a person other than the deceased victim sustains great bodily injury. First, and most importantly, we note the express language of section 12022.7, subdivision (a) does not limit its application to a specific victim of a *41 felony offense. Rather, it applies to great bodily injuries sustained by "any person other than an accomplice." (§ 12022.7, subd. (a), italics added.) Second, its express language also applies when the defendant personally inflicts great bodily injury on any person "in the commission of a felony." (§ 12022.7, subd. (a), italics added.) That language is sufficiently broad to include persons other than the victim of a victim-specific felony offense who sustain great bodily injury during the defendant's commission of that offense. Had the Legislature intended to limit section 12022.7, subdivision (a)'s application to only the ostensible victim injured in the commission of a felony offense, it could have expressly so provided. (Cf. § 12022.8 [imposing enhanced punishment for infliction of great bodily injury "on any victim"]; People v. Miller (1977) 18 Cal. 3d 873, 881, fn. 5, 135 Cal. Rptr. 654, 558 P.2d 552 [enhancement statute that expressly applies to great bodily injury to a victim, rather than a person, does not apply "to persons, who, unfortunately, are incidentally caught up in the events constituting the crime ...."], overruled on another ground as noted in People v. Oates (2004) 32 Cal. 4th 1048, 1068, fn. 8, 12 Cal. Rptr. 3d 325, 88 P.3d 56.) Furthermore, we note it is generally appropriate that a defendant be subject to greater punishment for committing an offense if his or her commission of that offense causes injuries to multiple persons. (People v. Alvarez (1992) 9 Cal. App. 4th 121, 128, 11 Cal. Rptr. 2d 463; People v. Pantoja (2004) 122 Cal. App. 4th 1, 16, 18 Cal. Rptr. 3d 492.) It is consistent with our criminal justice system to impose greater punishment on Weaver for the great bodily injuries she personally inflicted on Sigalov during her commission of the section 191.5, subdivision (a) offense that caused Mara's death.
In an analogous case, the California Supreme Court in People v. Oates, supra, 32 Cal. 4th 1048, 12 Cal. Rptr. 3d 325, 88 P.3d 56 rejected a similar contention made regarding the imposition of an enhancement under section 12022.53, subdivision (d), which contains language that parallels that of section 12022.7, subdivision (a).[29] In Oates, the defendant discharged a gun into a group of five people, injuring one of the persons in that group. (Oates, at p. 1053, 12 Cal. Rptr. 3d 325, 88 P.3d 56.) The jury convicted the defendant of five offenses of attempted murder and found true, as to each offense, a section 12022.53 allegation relating to the injury sustained by the one person. (Oates, at p. 1053, 12 Cal. Rptr. 3d 325, 88 P.3d 56.) Therefore, as to four of the five "victim-specific" offenses of attempted murder, a section 12022.53 enhancement was imposed for the injury sustained by a person other than the ostensible victim of that attempted murder.[30] (People v. Oates, supra, 32 Cal.4th at pp. 1053-1054, 12 Cal. Rptr. 3d 325, 88 P.3d 56.) On appeal, the defendant argued the trial court should have imposed only one section 12022.53 enhancement (relating to the attempted murder offense involving the person actually injured). (Oates, at p. 1054, 12 Cal. *42 Rptr.3d 325, 88 P.3d 56.) Oates rejected that contention, stating:
"In several respects, the language of section 12022.53 supports imposing multiple subdivision (d) enhancements under the circumstances here. First, by its terms, the subdivision (d) enhancement applies to `any person' who, `in the commission of a specified felony, `personally and intentionally discharges a firearm and proximately causes great bodily injury ... or death, to any person other than an accomplice.' (Italics added.) Based on the single injury to Barrera, the requirements of a subdivision (d) enhancement are met as to each of defendant's five attempted murder convictions, including those not involving the attempted murder of Barrera; ... in the commission of each [attempted murder] offense, defendant `personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury' to a person `other than an accomplice.' (§ 12022.53, subd. (d).)
"Notably, the parties here agree that the phrase, `any person other than an accomplice,' does not mean `the victim' of the underlying crime. For example, defendant asserts in his brief that the elements of a subdivision (d) enhancement 'require the imposition of the enhancement even if the injured person is not a victim of crime, such as if he or she was injured by a stray bullet.' Thus, `[i]f there is a qualifying substantive offense, if a firearm is intentionally discharged, and if anyone (but an accomplice), i.e., either the victim or a nearby "non-victim"a person who is injured but is not the victim of an enumerated offensesuffers great bodily injury, the enhancement attaches to the offense.' In other words, as defendant explains, 'the "any person other than an accomplice" language is sufficiently indisputable to ensure the imposition of the enhancement if a person other than the victim of the qualifying felony suffers a great bodily injury.' This reading of the statute is consistent with our recent statement that, as `[a]pplied to a defendant/shooter, this enhancement is arguably unambiguous: a defendant who is convicted of a specified felony and is found to have intentionally and personally discharged a firearm proximately causing great bodily injury or death when committing that [felony] is subject to section 12022.53, subdivision (d). [Citation.]' [Citation.] It is also consistent with the fact that the Legislature knows how to limit enhancements to harm done to a `victim' when that is its intent. (See § 12022.8 [imposing enhanced punishment for `inflict[ing] great bodily injury ... on any victim']; see also People v. Miller[, supra,] 18 Cal. 3d 873, 881, fn. 5[, 135 Cal. Rptr. 654, 558 P.2d 552] ... [enhancement statute that `expressly provides for its application upon great bodily injury to a "victim" rather than to a "person"` does not apply `in the case of injury to persons, who, unfortunately, are incidentally caught up in the events constituting the crime'].)" (People v. Oates, supra, 32 Cal.4th at pp. 1055-1056, 12 Cal. Rptr. 3d 325, 88 P.3d 56.)
Oates concluded: "Because the requirements of the subdivision (d) enhancement have been satisfied as to each of defendant's attempted murder convictions, subdivision (f) of section 12022.53 requires that the enhancement be imposed as to each conviction."[31] (People v. Oates, supra, 32 Cal.4th at p. 1056, 12 Cal.Rptr.3d *43 325, 88 P.3d 56, first italics added.) Oates noted: "Had the Legislature wanted to limit the number of subdivision (d) enhancements imposed to the number of injuries inflicted, or had it not wanted subdivision (d) to serve as the enhancement applicable to each qualifying conviction where there is only one qualifying injury, it could have said so." (Id. at p. 1056, 12 Cal. Rptr. 3d 325, 88 P.3d 56.)
Oates also rejected the defendant's argument that his proffered interpretation of analogous language in section 12022.7 precluded application of section 12022.53 enhancements as to offenses not involving the injured person, stating:
"Defendant also argues that we should construe section 12022.53, subdivision (d), like section 12022.7, which, in language similar to section 12022.53, subdivision (d), provides an enhancement for anyone `who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony.' (§ 12022.7, subd. (a).) According to defendant, `[n]o reported case has held that more [section 12022.7] enhancements than the actual number of injuries may be found and imposed' or that such an enhancement may be found and `imposed not only on [the conviction involving] the injured victim but also as to [the convictions involving] the uninjured victims as well.' Defendant argues we should similarly interpret subdivision (d).
"Defendant's argument is unpersuasive. Notwithstanding his assertions, defendant concedes that `[t]here is "no intimation" in section 12022.7' that `"only one such enhancement could be employed in any given case"' where only one person suffers injury. Moreover, defendant cites no caseand we have found nonesupporting his construction of section 12022.7. On the other hand, as defendant notes, in People v. Moringlane, (1982) 127 Cal. App. 3d 811, 815-817 [179 Cal. Rptr. 726] (Moringlane), the trial court imposed three `bodily injury' enhancements, presumably under section 12022.7, based on the defendant's infliction of a single injury on one of the three people he simultaneously assaulted. Although the appellate court later held that multiple enhancements were improper, it based its decision on section 654, not on the construction of section 12022.7. [Citation.] Moreover, given Moringlane's holding in 1982 that section 654 bars imposition of multiple enhancements, it is not surprising that no reported case has considered whether section 12022.7 itself authorizes multiple enhancements under the circumstances here. Finally, defendant citesand we findnothing in the legislative history of section 12022.7 to support his interpretation of that statute. Because nothing supports defendant's construction of section 12022.7, his argument based on that construction fails." (People v. Oates, supra, 32 Cal.4th at pp. 1060-1061, 12 Cal. Rptr. 3d 325, 88 P.3d 56, fns. omitted.)
Accordingly, the California Supreme Court upheld the trial court's imposition of all five section 12022.53, subdivision (d) enhancements. (Oates, at p. 1062, 12 Cal. Rptr. 3d 325, 88 P.3d 56.) [32] Because Oates involved an analogous enhancement statute *44 and upheld the imposition of great bodily injury enhancements related to "victim-specific" offenses when the ostensible victims of those offenses were not persons injured by the defendant in the commission of those offenses, we conclude the reasoning in Oates applies to this case and supports our interpretation of section 12022.7, subdivision (a).
In an apposite case involving interpretation of section 12022.7, People v. Ausbie (2004) 123 Cal. App. 4th 855, 20 Cal. Rptr. 3d 371 concluded two section 12022.7, subdivision (a) enhancements were properly imposed relating to the two persons on whom the defendant personally inflicted great bodily injury in the commission of only one offense of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). (Ausbie, at pp. 857-858, 865, 20 Cal. Rptr. 3d 371.) Like the section 191.5, subdivision (a) offense in this section 245, subdivision (a)(1) offense is a "victim-specific" offense because it is committed against a particular victim.[33] In concluding section 12022.7, subdivision (h)[34] did not prohibit the imposition of multiple section 12022.7, subdivision (a) enhancements relating to one underlying offense, Ausbie stated:
"We ... construe section 12022.7, subdivision (h) as limiting the sentencing court to one of the subdivision (a), (b), (c), or (d) enhancements for each injured victim, but not as prohibiting the court from imposing a section 12022.7 enhancement for each victim of a single offense when there are multiple victims who suffered great bodily injury. "Our construction, of section 12022.7, subdivision (h) is consistent with the general principle that the law requires greater punishment when there are multiple victims. This state has long recognized that multiple punishment is proper when a single act of violence injures or kills multiple victims. [Citations.]" (People v. Ausbie, supra, 123 Cal.App.4th at pp. 864-865, 20 Cal. Rptr. 3d 371, italics added.)
Therefore, Ausbie upheld the trial court's imposition of two section 12022.7, subdivision (a) enhancements relating tp only one victim-specific section 245, subdivision (a)(1) offense. (Ausbie, at p. 865, 20 Cal. Rptr. 3d 371.)
*45 Based on Verlinde, Oates and Ausbie, we conclude a section 12022.7, subdivision (a) enhancement may apply to a victim-specific offense (e.g., a § 191.5, subd. (a) offense) even when the ostensible victim of that offense was not, for purposes of section 12022.7, subdivision (a), the person on whom the defendant personally inflicted great bodily injury in the commission of that offense. The trial court properly imposed the three-year section 12022.7, subdivision (a) enhancement. Weaver does not cite, and we have not found, any case in support of her argument to the contrary.[35]
IV
Section 1192.7, Subdivision (c)(8) Allegations
Weaver contends her conviction of only one offense precludes a court from considering that conviction as two prior serious felony convictions within the meaning of section 1192.7, subdivision (c)(8) and the three strikes law (§ 667, subds. (b)-(i)). She apparently is concerned that the true findings on the two section 1192.7, subdivision (c)(8) allegations related to her one "serious felony" conviction would allow a court in the future to treat her as having two prior "strike" convictions.[36] Weaver argues: "The allegations will be used to support separate strikes under Penal Code section 667, subds. (b)-(i), in the event that Ms. Weaver is convicted of a felony in the future." She therefore argues only one section 1192.7, subdivision (c)(8) allegation should apply to her one section 191.5, subdivision (a) offense.
However, the trial court in this case did not make any decision whether Weaver's *46 section 191.5, subdivision (a) conviction could be considered, in the future, as two prior "strike" convictions based on her admission of the truth of the two section 1192.7, subdivision (c)(8) allegations. Rather, Weaver is concerned with only a possible future decision by a court that she may be considered to have two prior "strike" convictions within the meaning of the three strikes law. That contention is not properly raised in this appeal from the instant judgment.[37] (§ 1237.) Accordingly, Weaver's contention is premature and we need not address it.
V
Victim Restitution Fine
Weaver contends the victim restitution fine imposed by the trial court must be offset or reduced by the amount paid by her insurance company. She states her insurance company paid the victim(s) of her offense $200,000, thereby requiring an equivalent reduction in the victim restitution fine of $229,269.97 imposed by the trial court pursuant to section 1202.4.[38]
However, the record on appeal does not show her insurance company paid $200,000 to the victim(s) of Weaver's offense. Weaver asserts: "Defense counsel submitted in the statement of [mitigation] evidence showing that .Ms. Weaver's insurance company paid the $200,000 policy limit to the Sigalovs." In support of that assertion, she cites page 149 of the clerk's transcript, which is a copy of a letter attached to her statement in mitigation. That letter, dated February 24, 2005, is from David A. Delbon, an attorney apparently representing Sigalov, to Brian McCarthy, Weaver's defense attorney. In that letter, Delbon states in part:
"Further to my recent telephone message, plaintiff/claimant Anatoly Sigalov has agreed to accept CSAA's policy limit of $100,000 on the wrongful death claim, and a separate $100,000 on his own personal injury claim. We are in the process of exchanging closing papers which will include a Release of All Demands to be signed on both claims by Anatoly Sigalov. Once the documents are signed and the draft is forwarded to claimant, the civil matter will be resolved. We expect to close our file within the next four weeks."
It is clear from the content of that letter that the pending settlement of Sigalov's claims had not yet been finalized in writing and Weaver's insurance company had not yet paid any money to Sigalov. Therefore, that letter does not support her assertion that her insurance company had, in fact, paid $200,000 to Sigalov as a victim of her offense. Absent proof that her insurance company paid that amount to Sigalov as a victim of her offense, there is no basis on which to offset or otherwise reduce the amount of the victim restitution fine imposed by the trial court.
In any event, as the People note, in imposing the victim restitution fine at the sentencing hearing, the trial court expressly retained jurisdiction to modify the amount imposed on application of either *47 party (i.e., Sigalov or Weaver). The court stated: "The court will set restitution at this time in the amount of $229,479 subject to modification upward or downward on the application by counsel and a hearing can be held." It later stated: "The superior court will continue to retain jurisdiction to amend the judgment and to address restitution." In subsequently denying Weaver's motion to recall her sentence, the trial court stated in part: "On the limited issue of reduction of restitution based on payments by the defendant's insurance company, counsel should meet and confer to determine if a stipulated adjustment to the restitution figure is appropriate or if the matter needs to be set for hearing on that issue alone." The appellate record does not contain any evidence showing either that the parties stipulated to modification of the victim restitution fine or that Weaver properly requested, and the trial court held, a hearing on modification of that fine.
Section 1202.4, subdivision (f) provides that a victim restitution fine may be established, or presumably modified, by the trial court after the sentencing hearing, stating in part: "If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court." That is in effect what the trial court did in this case. Furthermore, section 1202.4, subdivision (f)(1) provides a defendant with a right to a hearing on the amount of a victim restitution fine, stating:
"The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion."
The appellate record does not show that Weaver (or the prosecutor or Sigalov) requested a hearing to modify the amount of the victim restitution fine imposed by the trial court at Weaver's sentencing. Therefore, to the extent Weaver wishes the amount of that fine to be offset or reduced by all or part of any payment made by her insurance company to Sigalov, she must first follow the appropriate procedures set forth in section 1202.4 by requesting a modification hearing and obtaining an order of the trial court on that request. She may then seek relief in the appellate court for any purported error by the trial court. We conclude Weaver's contention is premature and we need not address its substance.[39]
DISPOSITION
The judgment is affirmed.
NARES, Acting P.J., and McINTYRE, J., concur.
NOTES
[1] All statutory references are to the Penal Code unless otherwise specified.
[2] Because Weaver pleaded guilty before trial, the factual summary is based on the preliminary hearing transcript and probation report filed in this case.
[3] Tempus's roommate, John Davis, and Tempus's daughter were passengers in his car.
[4] Based on the damage to his car, Sigalov, as an owner of an automobile body shop, estimated Weaver's car was traveling at a speed of over 100 miles per hour.
[5] At the preliminary hearing, a prosecution expert testified that for about 15 to 20 minutes after consuming cocaine, Weaver would have felt its euphoric effects, including a sense of confidence, but would be sensitive to bright lights. Thereafter, Weaver would "crash," feel paranoid, and have blurred vision. Furthermore, her sensitivity to bright lights would become greater. Cocaine, combined with alcohol, decreases a person's reaction time and increases paranoia, depression, and blurred vision.
[6] The probation report filed prior to Weaver's sentencing noted that during an interview she stated she could not remember much about the night of the incident. She remembered graduating from college and celebrating with friends in Del Mar by drinking several shots of Jaegermeister and thereafter only remembered waking up in the hospital.
[7] On May 3, 2006, we granted Weaver's unopposed request to augment the appellate record with copies of her motion to recall and the trial court's minute order denying that motion.
[8] Weaver's appeal does not challenge the trial court's denial of her motion to recall her sentence.
[9] In previously finding an evidentiary basis to support Weaver's guilty plea, the trial court considered the preliminary hearing transcript.
[10] All rule references are to the California Rules of Court.
[11] For purposes of this opinion, we assume, without deciding, that Weaver did not forfeit or waive this contention by not timely objecting to the trial court's consideration of all or some of the purported improper factors.
[12] We presume that Smith's description of victim "vulnerability" also applies in the instant rule 4.414(a)(3) context.
[13] Sigalov estimated Weaver's car was traveling at a speed of over 100 miles per hour. Based on the testimonies of other percipient witnesses, her car was traveling at least 70 miles per hour.
[14] Interpreting the term "particularly vulnerable" for purposes of rule 4.421(a)(3), Bloom stated: "There are few individuals as `defenseless, unguarded, unprotected, accessible, assailable and susceptible' as those who have the misfortune of being in the wrong place at the wrong time when a drunk driver takes to the road. All victims of drunk drivers are 'vulnerable victims,' but it is precisely because they are all vulnerable that Carrie Lee cannot be considered to be vulnerable `in a special or unusual degree, to an extent greater than in other cases.' [Citation.] While we can visualize extraordinary situations in which a drunk driving victim might be considered to be `particularly vulnerable,' such a situation is not present here, and therefore the court erred in applying rule 421(a)(3) to this case." (People v. Bloom, supra, 142 Cal. App.3d at p. 322, 190 Cal. Rptr. 857.) Unlike our case, in Bloom the defendant was driving his car at about 50 miles per hour while other cars were traveling about 35 miles per hour and his car was, immediately before the head-on accident, traveling in the proper lane of an (apparently) undivided street. (Id. at p. 314, 190 Cal. Rptr. 857.) Furthermore, testimony showed the victim in Bloom had sufficient time to, and did, attempt to avoid the head-on collision, with her car leaving 20 feet of skid marks on the road. (Ibid.) Interpreting the term "particularly vulnerable" for purposes of rule 4.421(a)(3), in Piceno we stated: "No one could possibly deny the [pedestrian] victim here was vulnerable. But, regrettably all victims of vehicular manslaughter-be they pedestrians, fellow drivers or passengers-were vulnerable. They unfortunately were in the wrong place at the wrong time." (People v. Piceno, supra, 195 Cal.App.3d at p. 1358, 241 Cal. Rptr. 391.) In our case, the trial court could reasonably conclude that Sigalov and Mara were not just "in the wrong place at the wrong time," but rather were particularly vulnerable because of the late-night darkness and Weaver's failure to have her car's headlights on, thereby giving the Sigalovs absolutely no advance warning of, or ability to attempt to avoid, the collision. Therefore, Bloom and Piceno do not persuade us to conclude otherwise.
[15] In what apparently is dicta because the court reversed the defendant's gross vehicular manslaughter conviction on which the challenged sentence was based, McNiece stated the trial court erred by denying probation based on the victim's vulnerability. (People v. McNiece, supra, 181 Cal.App.3d at pp. 1053, 1058-1059, 226 Cal. Rptr. 733.) In so doing, McNiece relied on Bloom and its requirement that a victim be "particularly" vulnerable for that factor to be considered aggravating and supportive of sentencing a defendant to an upper term. (McNiece, at pp. 1058-1059, 226 Cal. Rptr. 733.) However, rule 4.414(a)(3) does not include a requirement that a victim be "particularly" vulnerable for that factor to be considered in granting or denying probation. Because we believe McNiece erred by relying on Bloom and rule 4.421(a)(3)'s language for aggravating circumstances for imposing an upper term, rather than the express language of rule 4.414(a)(3) for circumstances to be considered in granting or denying probation, we disagree with its reasoning and conclusion and therefore decline to apply it to the circumstances in this case. In so doing, we note there is a substantial difference between merely selecting an upper, middle, or lower term (as in Bloom ) and deciding to effectively excuse a defendant from serving any prison term by granting probation. Therefore, the omission in rule 4.414(a)(3) of any requirement that a victim be "particularly" vulnerable effectively (and, in our opinion, appropriately) makes a victim's vulnerability more frequently applicable in a trial court's weighing whether to grant or deny probation than when a trial court, having denied probation, considers whether to impose a lower, middle, or upper term. Accordingly, the practical effect of that difference appears to be that a trial court, in any given case, may be somewhat more inclined to deny probation if it applies rule 4.414(a)(3) as we interpret it than if it applies the rule 4.421(a)(3) standard (per Bloom and McNiece ) in deciding whether to grant or deny probation.
[16] The probation report included as circumstances favoring a grant of probation: (1) "[i]mprisonment would likely have a negative effect on the defendant in that she has never served any significant time in custody" (rule 4.414(b)(5)); (2) "[t]he felony conviction will have adverse collateral consequences on the defendant's life, specifically on her life[-]long career goals" (rule 4.414(b)(6)); and (3) "[i]t appears unlikely that the defendant will be a danger to others if not imprisoned" (rule 4.414(b)(8)).
[17] The prosecution's statement in aggravation also listed and discussed circumstances (1) through (4), above, albeit not in a manner favorable to Weaver.
[18] The trial court stated in part: "Certainly in favor of grant of probation is this young woman's youth, her lack of significant record, just one speeding ticket and her absence of actual malice in this case[, h]er genuine remorse and her ability to comply with the conditions of probation if probation were granted." (Italics added.)
[19] Cunningham stated in part: "In sum, California's DSL [determinate sentencing law], and the rules governing its application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts-whether related to the offense or the offender-beyond the elements of the charged offense." (Cunningham, supra, 127 S.Ct. at p. 862.) It further stated: "[T]he middle term prescribed in California's law, not the upper term, is the relevant statutory maximum." (Id: at p. 858.)
[20] For purposes of this opinion, we assume, without deciding, that Weaver did not forfeit or waive this contention by not timely objecting to the trial court's consideration of all or some of the purported improper circumstances.
[21] We presume Sigalov's physical injuries were not considered by the trial court in imposing the middle six-year term because those injuries were the basis of the separate three-year section 12022.7, subdivision (a) enhancement imposed by the court.
[22] We presume the "horrific" circumstances surrounding Weaver's offense considered by the trial court were not elements of her section 191.5, subdivision (a) offense and therefore were properly considered. "[W]here the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence. [Citation.]" (People v. Castorena (1996) 51 Cal. App. 4th 558, 562, 59 Cal. Rptr. 2d 782.)
[23] Weaver does not challenge on appeal the trial court's order denying her motion to recall her sentence. Therefore, any additional evidence submitted in support of that motion cannot be considered in determining whether there is substantial evidence to support the trial court's earlier decision to impose the middle six-year term.
[24] We note Weaver's brief repeatedly argued there was insufficient evidence to support the imposition of the "upper" term of six years. However, as noted above, six years is the middle term and therefore that term is the presumptive sentence for a section 191.5, subdivision (a) offense. Weaver apparently attempts to characterize the trial court's decision to not impose the lower four-year term as in effect imposing an upper term.
[25] As noted above, section 1170, subdivision (b) provides: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. . . . The court shall set forth on the record the facts and reasons for imposing the upper or lower term. ..." (Italics added.)
[26] Nevertheless, we note each element of section 12022.7, subdivision (a) does not correspond to an element of Vehicle Code section 23558. Section 12022.7, subdivision (a) requires "great bodily injury" while Vehicle Code section 23558 requires only "bodily injury." (People v. Arndt (1999) 76 Cal. App. 4th 387, 393, 90 Cal. Rptr. 2d 415.)
[27] Weaver concedes that a violation of Vehicle Code section 23558 (the special statute) will not necessarily result in a violation of section 12022.7, subdivision (a) (the general statute).
[28] Regarding the second person injured other than the deceased victim, we remanded the matter for a determination whether he was an accomplice within the meaning of section 12022.7, subdivision (a), which, if found to be true, would preclude the imposition of a second three-year section 12022.7, subdivision (a) enhancement. (People v. Verlinde, supra, 100 Cal.App.4th at p. 1169, 123 Cal. Rptr. 2d 322.)
[29] Section 12022.53, subdivision (d) provides: "[A]ny person who, in the commission of a felony specified in subdivision (a) [e.g., murder or attempted murder] ..., personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." (Italics added.)
[30] A fifth section 12022.53 enhancement was imposed in connection with the attempted murder offense involving the person who actually sustained the great bodily injury. (People v. Oates, supra, 32 Cal.4th at pp. 1053-1054, 12 Cal. Rptr. 3d 325, 88 P.3d 56.)
[31] Section 12022.53, subdivision (f) provides: "If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment."
[32] In a concurring opinion joined by Justices Kennard and Moreno, Justice Werdegar essentially agreed with the majority opinion's reasoning, stating in part: "The drafters of section 12022.53, subdivision (d), however, did not limit its application to qualifying offenses involving great bodily injury to the victim of the underlying offense, but, rather, offenses in the commission of which the defendant causes great bodily injury to `any person other than an accomplice.' Moreover, there may be circumstances-as when a qualifying offense has been committed against an uninjured victim but not the injured victim-in which imposing a subdivision (d) enhancement for injury to someone other than the victim of the underlying crime will best fit the punishment to the crime. The majority is thus probably correct that subdivision (d)'s specification that the injurious discharge of a firearm must have occurred `in the commission of the underlying qualifying felony was not intended to limit enhancements to cases where the victim in that felony sustained great bodily injury. Nor does any other language in the statute clearly limit the number of subdivision (d) enhancements that may be imposed based on a single gunfire injury." (People v. Oates, supra, 32 Cal.4th at pp. 1070-1071, 12 Cal. Rptr. 3d 325, 88 P.3d 56 (conc.opn. of Werdegar, J.), italics added.)
[33] Although the information in Ausbie apparently did not specify which of the two injured persons was the ostensible victim of the section 245, subdivision (a)(1) offense, for purposes of analogy Ausbie is apposite to this case because there presumably was only one victim of that assault and therefore the other injured person, as in this case, was not the ostensible victim of the offense underlying the section 12022.7, subdivision (a) enhancement. (People v. Ausbie, supra, 123 Cal.App.4th at p. 864, 20 Cal. Rptr. 3d 371.) To the extent the information included both injured persons as ostensible victims of the single charged section 245, subdivision (a)(1) offense, we nevertheless conclude Ausbie supports our reasoning.
[34] Section 12022.7, subdivision (h) provides: "The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense."
[35] To the extent Weaver relies on People v. Beltran (2000) 82 Cal. App. 4th 693, 98 Cal. Rptr. 2d 730 as support for her contention, that case is inapposite and, in any event, we decline to apply its reasoning here because of our contrary reasoning in Verlinde. In Beltran, a section 12022.7, subdivision (c) allegation was found true as to each of the offenses of evasion of a pursuing police officer that caused serious injuries (Veh.Code, § 2800.3) and vehicular manslaughter (§ 192, subd. (a)(1)). (Beltran, at p. 695, 98 Cal. Rptr. 2d 730.) Without any substantive reasoning, Beltran first summarily concluded a section 12022.7 enhancement could not apply to the vehicular manslaughter offense regarding injuries sustained by a person other than the deceased victim because then-section 12022.7, subdivision (f) [now subd. (g) ] provided section 12022.7 shall not apply to murder or manslaughter. (Beltran, at p. 696, 98 Cal. Rptr. 2d 730.) Based on our reasoning in Verlinde, quoted above, we disagree with that conclusion by Beltran and decline to apply it to this case. Beltran then substantively addressed the question of whether a section 12022.7, subdivision (c) enhancement could not apply to the Vehicle Code section 2800.3 offense because section 12022.7, subdivision (c)'s elements were included in that underlying offense of evasion of a pursuing police officer that caused serious injuries to others (Veh.Code, § 2800.3). (Beltran, at pp. 695-697, 98 Cal. Rptr. 2d 730.) Beltran concluded the elements of that enhancement were included in the underlying offense and therefore the enhancement could not be imposed as to that offense. (Id. at pp. 696-697, 98 Cal. Rptr. 2d 730.) Therefore, that aspect of Beltran is inapposite and does not persuade us to conclude otherwise.
We further note that Weaver's victim-specific argument in this part III.D. is logically inconsistent with her argument in part III.C, ante, that a one-year Vehicle Code section 23558 enhancement should apply instead of a three-year section 12022.7, subdivision (a) enhancement. Under Weaver's instant argument, neither enhancement could apply in the circumstances of this case.
[36] Weaver admitted the allegations related to her section 191.5, subdivision (a) offense, including an allegation that in committing that offense she personally inflicted great bodily injury on Mara within the meaning of section 1192.7, subdivision (c)(8) and an allegation that in committing that offense she personally inflicted great bodily injury on Sigalov within the meaning of section 1192.7, subdivision (c)(8).
[37] To the extent Weaver argues her admission of the truth of the two section 1192.7, subdivision (c)(8) allegations may affect her placement status in prison, the appellate record does not show that her prison placement has, in fact, been affected by those admissions. If, and when, those admissions affect her prison placement, she may then seek whatever recourse may be available to her.
[38] We note, but do not resolve, the apparent discrepancy between the amount of the victim restitution fine reflected in the reporter's transcript (i.e., $229,479) and the amount reflected in the clerk's transcript (i.e., $229,269.97).
[39] Although Weaver cites People v. Jennings (2005) 128 Cal. App. 4th 42, 26 Cal. Rptr. 3d 709 in support of her contention, that case is inapposite because the appellate record there showed the defendant's insurance company had paid money to the victim and the defendant had properly requested, and received, a modification hearing in the trial court. (Id. at pp. 47-49, 26 Cal. Rptr. 3d 709.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1755247/ | 724 N.W.2d 274 (2006)
2006 WI App 223
SHEBOYGAN COUNTY
v.
JOHN J.V.[1]
No. 2006AP1536-FT
Wisconsin Court of Appeals
September 27, 2006.
Affirmed.
NOTES
[1] Petition for Review Filed | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331094/ | 650 S.E.2d 114 (2006)
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Tony Franklin DAUGHERTY, Sr., Defendant Below, Appellant.
No. 33075.
Supreme Court of Appeals of West Virginia.
Submitted November 14, 2006.
Decided November 29, 2006.
*115 Barry L. Bruce, Thomas W. White, Barry L. Bruce & Associates, Lewisburg, for Appellant.
Darrell V. McGraw, Jr., Attorney General, Colleen A. Ford, Assistant Attorney General, Charleston, for Appellee.
PER CURIAM:
Tony Franklin Daugherty, Sr. (hereinafter Mr. Daugherty) appeals an order of the Circuit Court of Summers County denying his motion for a new trial. Mr. Daugherty was convicted of four counts of sexual abuse by a parent and sentenced to a period of 10 to 20 years for each conviction.[1] Subsequent to the convictions and sentences, Mr. Daugherty filed a motion for a new trial based upon the jury's consideration of alleged extrinsic evidence.[2] After conducting an evidentiary hearing, the circuit court denied the motion for a new trial. Here, Mr. Daugherty contends that the trial court committed error in denying his motion for a new trial.[3] After a careful review of the briefs and record in this case, we affirm the trial court's decision.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. Daugherty and his wife, Rebecca Daugherty, gave birth to a son, T.J., on July 9, 1991.[4] As a result of domestic problems, sometime in July of 1998 Mrs. Daugherty left her home with T.J. and moved into a women's shelter. While at the shelter, she learned that Mr. Daugherty may have sexually abused T.J. before he was taken out of the home. The initial sexual abuse allegations apparently could not be substantiated. However, subsequent to the sexual abuse allegation, T.J. exhibited behavioral problems that required him to be hospitalized for psychiatric treatment on several occasions. During the last hospitalization in early 2000, T.J. disclosed that Mr. Daugherty raped him. In March of 2001 a grand jury returned an indictment against Mr. Daugherty alleging 16 counts of sexual offenses.[5]
The case was tried before a jury in September of 2004. During the trial, T.J. testified that on four occasions Mr. Daugherty "[p]ut his penis in my anus." The record does not disclose whether or not Mr. Daugherty testified during the trial.[6] The jury returned a verdict finding Mr. Daugherty guilty of four counts of sexual abuse by a parent.[7] On September 26, 2005, the circuit court entered an order sentencing Mr. Daugherty to four concurrent sentences of 10 to 20 years imprisonment.[8]
Subsequent to entry of the sentencing order, Mr. Daugherty learned of allegations that a juror, William McBride, stated during deliberations that he knew Mr. Daugherty and his family and that he was afraid that something could happen to his children if Mr. Daugherty was not convicted. These allegations were made by affidavits from four jurors: Harvey Bryant, Everette Cox, Sharon *116 Crookshanks and Ricky Vandall.[9] As a result of this information, Mr. Daugherty filed a motion for a new trial. An evidentiary hearing was held on the motion. During the hearing, Mr. Daugherty and all twelve former jurors testified.[10] After the conclusion of the hearing the trial court entered an order denying Mr. Daugherty's motion for a new trial. From this order, Mr. Daugherty now appeals.
II.
STANDARD OF REVIEW
We are asked to decide whether the trial court committed error in denying Mr. Daugherty's motion for a new trial. This Court has held that:
In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). See State v. Crouch, 191 W.Va. 272, 275, 445 S.E.2d 213, 216 (1994) ("The question of whether a new trial should be granted is within the discretion of the trial court and is reviewable only in the case of abuse."). We have also held with respect to alleged juror misconduct that:
A motion for a new trial on the ground of the misconduct of a jury is addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal where it appears that defendant was not injured by the misconduct or influence complained of. The question as to whether or not a juror has been subjected to improper influence affecting the verdict, is a fact primarily to be determined by the trial judge from the circumstances, which must be clear and convincing to require a new trial, proof of mere opportunity to influence the jury being insufficient.
Syl. pt. 1, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995) (quoting Syl. pt. 7, State v. Johnson, 111 W.Va. 653, 164 S.E. 31 (1932)).
III.
DISCUSSION
Mr. Daugherty contends that Mr. McBride stated during jury deliberations that he knew Mr. Daugherty and his family and that he was afraid something could happen to his children if Mr. Daugherty was not convicted. Mr. Daugherty contends that these alleged statements constituted improper extrinsic evidence. Therefore, he is entitled to a new trial.
In the decision of State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 384 (1981) this Court held that "[a] jury verdict may not ordinarily be impeached based on matters that occur during the jury's deliberative process which matters relate to the manner or means the jury uses to arrive at its verdict." Syl. pt. 1, Scotchel. Subsequent to the decision in Scotchel, "a rule of evidence [was adopted] which specifically addresses the parameters of inquiring into a jury verdict." McDaniel v. Kleiss, 198 W.Va. 282, 288, 480 S.E.2d 170, 176 (1996). In 1994, this Court adopted Rule 606(b) of the West Virginia Rules of Evidence. Rule 606(b) provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. *117 Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Professor Cleckley has pointed out that:
Rule 606(b) bars juror testimony regarding four topics: (1) the method or arguments of the jury's deliberation; (2) the effect of any particular thing upon an outcome in the deliberation; (3) the mindset or emotions of the juror during deliberation; and (4) the testifying juror's own mental process during the deliberations.
Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers (Vol.1), § 6-6(B), pg. 6-55 (2000).
Rule 606(b) provides a narrow exception that would allow jurors to testify to certain matters occurring during deliberations. Under that exception "a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Cleckley, Handbook on Evidence, § 6-6(B), at 6-55. See Syl. pt. 2, Scotchel ("Courts recognize that a jury verdict may be impeached for matters of misconduct extrinsic to the jury's deliberative process."). In determining whether a jury's consideration of extrinsic evidence warrants a new trial, the following standard has been recognized by this Court:
When jurors consider extrinsic evidence, a new trial is required if the evidence poses a reasonable possibility of prejudice to the defendant. . . . Prejudice from extrinsic evidence is assumed in the form of a rebuttable presumption and the government bears the burden of demonstrating that the consideration of the evidence was harmless.
State ex rel. Trump v. Hott, 187 W.Va. 749, 753, 421 S.E.2d 500, 504 (1992) (quoting United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir.1984)).
Mr. Daugherty contends that the evidence at the post-trial hearing established the presumption of prejudice and that the State failed to rebut that presumption. We disagree.
To begin, Mr. Daugherty contends that under our decision in Trump, he is entitled to a new trial. In Trump, the defendant was convicted of four counts of second-degree sexual assault. Subsequent to the conviction, a juror came forward and alleged that during the deliberations another juror told the jury panel that the defendant had previously been accused or convicted of wife beating and child molestation. The circuit court held a hearing and questioned the other jurors to determine if the statements were in fact made during the deliberations. Five jurors questioned indicated that the statements were made. Thereafter, the trial court indicated that it was inclined to grant a new trial. However, the trial court invited the prosecutor to seek a writ of prohibition from this Court to preclude such a ruling. This Court declined to issue a writ of prohibition. The opinion in Trump instructed the circuit court that before granting a new trial, it should consider whether the evidence against the defendant was so overwhelming that the juror's remarks were harmless.
We do not believe that our decision in Trump supports granting Mr. Daugherty a new trial. The extrinsic evidence in Trump involved other alleged past acts by the defendant. The alleged extrinsic evidence in this case does not involve alleged past wrongs committed by Mr. Daugherty. In this case, Mr. Daugherty contends that Mr. McBride informed the jury that he knew Mr. Daugherty and his family and that he was afraid that something could happen to his children if Mr. Daugherty was not convicted. Clearly Trump is distinguishable.
As previously indicated, the trial court took testimony from each of the jurors and Mr. Daugherty. In its order denying the motion for new trial, the court made the following relevant findings of fact:
[1] Juror Bryant testified that Juror McBride stated that he (McBride) lived in the vicinity of the Defendant, that McBride knew the Defendant's family, and that McBride had two children whom he feared for if the Defendant were not found guilty.
[2] Juror Cox testified that McBride stated that he (McBride) knew the Defendant *118 and his family and if they (the jury) did not do something, McBride feared for his own children.
[3] Juror Crookshanks testified that Juror McBride stated he was scared for his family if the Defendant were not put in jail, and that he knew the Defendant's family and the jury should be afraid.
[4] Juror Vandall testified that he signed a document (presumably the affidavit) provided by an investigator for the Defendant, but he did not hear any comments alleged by the Defendant.
[5] Juror McBride testified that he did not know the Defendant nor his family, that he does not live in the vicinity of the Defendant, and that he did not make any of the alleged comments during deliberation.
[6] The remaining eight jurors testified that they did not hear any comments from Juror McBride.
[7] Defendant Daugherty testified that he did not know Juror McBride or any other jury member.[11]
Based on the above facts, the circuit court made specific legal conclusions as to the issue of Mr. McBride stating (1) that he was afraid that something could happen to his children if Mr. Daugherty was not convicted, and (2) that he knew Mr. Daugherty and his family. We will review each legal conclusion separately.
(1) Fear for his children. As to the issue of Mr. McBride stating to the jury that he was afraid that something could happen to his children if Mr. Daugherty was not convicted, the trial court concluded that "although [Mr. McBride] may have commented upon his mental process, or fear, of future harm by the accused, evidence of this to overturn a verdict is violative of Rule 606(b) and must not be utilized to impeach the conviction." We agree with the circuit court's legal conclusion on this issue. As pointed out by Professor Cleckley, "[t]he mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment." Cleckley, Handbook on Evidence, § 6-6(B), at 6-56. Further, this Court made the following observations in Scotchel:
The reason traditionally advanced to preclude impeachment of the jury verdict based on what occurred during the jury's deliberations is primarily grounded on public policy protecting the privacy of the jurors. This policy prevents both litigants and the public from being able to gain access to the jury's deliberative process. Inherent in this proposition is the recognition that ensuring the privacy of the jury's deliberations will promote a full, frank and free discussion of all the issues submitted to the jury. It is also recognized that the very nature of the deliberative process, which requires the jurors to arrive at a unanimous verdict, must of necessity require accommodation of individual views. This process of accommodation should not be utilized as a means to attack the general verdict. The rule against impeachment of the verdict also serves to prevent litigants from attempting to influence or tamper with individual jurors after the verdict has been rendered. There is also recognition that limiting impeachment promotes finality of jury verdicts.
Scotchel, 168 W.Va. at 548, 285 S.E.2d at 387. Thus, "the matters raised by [Mr. McBride] related, intrinsically, to the jury's deliberative process and resulted in no grounds to set the verdict aside." Brooks v. Harris, 201 W.Va. 184, 188, 495 S.E.2d 555, 559 (1997).
(2) Prior knowledge of Mr. Daugherty and his family. As to the issue of Mr. McBride stating that he knew Mr. Daugherty and his family, the circuit court's order addressed this statement in the context of Mr. Daugherty's claim that Mr. McBride should have been disqualified for cause. The issue of disqualification of Mr. McBride for cause, was a separate assignment of error in Mr. Daugherty's petition for appeal to this Court. As previously noted, this Court refused the appeal on that issue and several others. Consequently, we will not disturb *119 the basis for the trial court's ruling on this issue. Even though the trial court did not address the disqualification for cause issue in the context of the extrinsic evidence claim, we will do so because that is how the issue was presented in this appeal and briefed by the parties.
Assuming, for the sake of argument, that Mr. McBride did inform the jury that he knew Mr. Daugherty and his family, that statement does not warrant granting Mr. Daugherty a new trial. The limited record presented in this appeal does not show that the statement posed a reasonable possibility of prejudice to Mr. Daugherty. The jury was presented with 12 of the 16 counts against Mr. Daugherty, but convicted him of only four counts. The victim in this case, T.J., testified to being sexually abused and identified Mr. Daugherty as the abuser. The State presented the testimony of a psychologist who reviewed T.J.'s mental health records. When asked if the behavior outlined in T.J.'s mental health records was consistent with a victim of child sexual abuse, the psychologist answered as follows:
As I testified earlier, children who have been sexually abused do often exhibit certain behaviors at a higher frequency than normal children, behavior that I've described to you [regarding T.J.], sexually aggressiveness toward other children, trying to be sexual with other children, hunching things, masturbating, putting things in his anus, eating all those behaviors, I think, could be seen as symptoms or behaviors that was [sic] caused by the trauma of sexual abuse.
From what this Court is able to ascertain from the limited record presented on appeal, the evidence to sustain the four convictions was sufficient beyond a reasonable doubt. See United States v. Saya, 247 F.3d 929, 939 (9th Cir.2001) ("Also of consequence in determining whether the introduction of extraneous information constituted prejudice is the amount and strength of the government's evidence against the defendant."). Therefore, assuming the statement was made, we are convinced that it did not pose a reasonable possibility of prejudice to Mr. Daugherty.[12]
IV.
CONCLUSION
The circuit court's denial of Mr. Daugherty's motion for a new trial is affirmed.
Affirmed.
NOTES
[1] The sentences were ordered to run concurrently.
[2] Mr. Daugherty had previously filed another motion for new trial which was denied. The second motion for a new trial involved in this appeal was filed after Mr. Daugherty received information alleging a juror was biased.
[3] Mr. Daugherty's petition for appeal alleged six assignments of error. This Court granted the petition for appeal only as to the issue involving the jury's alleged consideration of extrinsic evidence.
[4] "Consistent with our practice in cases involving sensitive matters, we use the victim's initials[.]" Coleman v. Painter, 215 W.Va. 592, 594, 600 S.E.2d 304, 306 (2004).
[5] The indictment charged Mr. Daugherty with four counts of first degree sexual assault; four counts of third degree sexual assault; four counts of sexual abuse by a parent; and four counts of incest.
[6] The trial lasted six days. However, the record submitted on appeal only contains the transcript of the first two days of the trial.
[7] The jury acquitted Mr. Daugherty of the first degree sexual assault and incest charges. The trial court, on a motion by the State, dismissed the third degree sexual assault charges.
[8] Mr. Daugherty was originally scheduled to be sentenced on December 6, 2004. However, under an order agreed to by the parties the sentencing hearing was continued until 2005.
[9] Contrary to his affidavit, Mr. Vandall testified that he did not hear Mr. McBride make the statements.
[10] There were other witnesses who testified.
[11] Mr. Daugherty does not challenge the circuit court's findings of fact. Instead, Mr. Daugherty takes issue with the legal conclusion reached from those findings.
[12] Mr. Daugherty points out that Jurors Bryant, Cox and Crookshanks testified that Mr. McBride's statements impacted their decision in voting to convict Mr. Daugherty. This evidence, however, cannot be considered. This Court has indicated that "[w]hen considering the impact of the [extrinsic evidence], courts have used an objective test and have held that the subjective impact of the [extrinsic evidence] on individual jurors cannot be inquired into because it intrudes on the deliberative process." Trump, 187 W.Va. at 754, 421 S.E.2d at 505. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331095/ | 258 S.C. 340 (1972)
188 S.E.2d 780
The STATE, Respondent,
v.
Curtis Ray JORDAN et al., of whom Curtis Ray Jordan is, Appellant.
19412
Supreme Court of South Carolina.
May 9, 1972.
*341 Gerald R. Clay, Esq., of Abbeville, for the Appellant.
William T. Jones, Esq., Solicitor, of Greenwood, for Respondent.
May 9, 1972.
MOSS, Chief Justice:
The record shows that Curtis Ray Jordan, the appellant herein, along with Oscar Eddie Jordan, Jr., were indicted by the Grand Jury of Abbeville County and charged with the crime of armed robbery. Section 16-333 of the Code. Upon arraignment, the appellant and his co-defendant entered a plea of "not guilty". The appellant and his co-defendant, represented by appointed counsel were tried before *342 the Honorable Francis B. Nicholson, Presiding Judge, and a jury, at the 1971 May Term of the Court of General Sessions for Abbeville County. The jury returned a verdict of guilty and the appellant and his co-defendant were imprisoned for a term of twelve years. The appellant has prosecuted this appeal from the rulings of the trial judge.
It is undisputed that on January 13, 1971, some time after 7:00 P.M., two white men with stockings over their faces, wearing gloves, each being armed with a double barrel shotgun, entered the store of G.O. Hall of Calhoun Falls and robbed him of some $480.00. Following the robbery, they fled on foot from the store.
Immediately following the robbery, officers of the law were called and an investigation ensued. Bloodhounds were brought to the store in the nighttime and turned loose where a track was found in close proximity to the northeast corner of the store. The dogs picked up the trail there and followed it to a point approximately one mile away from the store where certain articles, hereinafter referred to, were found the next day.
There is testimony that the bloodhounds followed a trail from the store to a place where tire tracks were found indicating that an automobile had been driven into the area and turned around and came out. The officers obtained some plaster of paris and poured such into a track at the turnaround spot. The cast was left to dry and was removed the next morning.
Several of the officers testified that on January 14, 1971, the day following the robbery, they returned to the area to which the bloodhounds had trailed and where the cast of the print of an automobile tire was made and conducted a wider and more thorough search. They found two double barrel shotguns, two pairs of gloves, four shells and an Army shirt or jacket.
The Sheriff of Abbeville County testified that on the night of January 13, 1971, that the cast of the tire print *343 was poured and close to where the car had been parked, according to the tracks on the ground, he found a letter and, upon examination, it contained a stub of a Trailways bus ticket indicating passage from Arcadia, Florida to Atlanta, Georgia.
One of the officers testified that following the robbery and in the course of his investigation, he was checking dirt roads leading away from Highway 72. He stated that he saw a car with lights burning come out into the highway and head west. He described the automobile as being a 1959 white Buick four-door sedan. He said that he saw two people in the car. It was later determined that the car came from the suspect area to which reference has heretofore been made.
Ray Howell, an automobile salesman, testified that on January 11, 1971, he sold a 1959 white Buick four-door sedan to Curtis Jordan. Curtis Jordan and Oscar Eddie Jordan, Jr. came to his used car lot in the State of Georgia together to purchase an automobile and he sold them a 1959 white Buick four-door sedan. The bill of sale was made out in the name of Curtis Jordan and he signed it. He testified that at the time of the sale the aforesaid automobile had a 1970 Georgia tag thereon, the number being 51A412.
Two witnesses for the State testified that on the afternoon of January 13, 1971, about one hour before dark, they saw the appellant and another man, whom they could not identify, at Ward's Landing on a lake about two or three miles from Calhoun Falls. They testified that these two men walked from the lake up a hill to where a white Buick automobile, with Georgia license tag thereon, was parked. As these witnesses drove from the lake they passed the appellant and the other person when they were ten or fifteen yards from the white Buick automobile. One of the witnesses testified that he could identify the appellant because he had known him all of his life.
The State also called a witness who testified that he rode around in Calhoun Falls in a 1959 white Buick automobile *344 with the appellant and his codefendant on Monday and Tuesday before the robbery took place on Wednesday of the same week.
The appellant was arrested in Columbia, South Carolina, and placed in the Richland County Jail. There he was served with a warrant, on January 19, 1971, charging him with armed robbery. At the time of the arrest of the appellant in Columbia, a 1959 white Buick automobile bearing Georgia license number 51A412 was seized and impounded. The right front tire was taken from this automobile. The State offered in evidence the moulage cast made in the suspect area and the right front tire taken from the appellant's car.
The appellant and his co-defendant were brought from the Richland County Jail to Abbeville on January 22, 1971. There is testimony that upon their arrival they were taken directly to the sheriff's office of Abbeville County and were there interrogated by the sheriff. There is contradictory testimony as to whether the interrogation took place before or after the appellant had been arraigned in the office of the clerk and an attorney appointed to defend him.
The appellant charges error on the part of the trial judge in admitting evidence of a statement made by him while in custody, such statement being elicited by custodial interrogation contrary to the principals promulgated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. (2d) 694, and that its admission violated his privilege against self-incrimination. Prior to the offering in evidence of the statement made by the appellant, the trial judge excused the jury, and in the absence thereof, heard the evidence of both the State and the appellant, upon the question of the admissibility of the statement. This was the correct procedure to follow. State v. Funchess, 255 S.C. 385, 179 S.E. (2d) 25.
In the absence of the jury, the sheriff testified, and such was corroborated by another officer who was present, that he *345 gave the appellant the warnings required by the Miranda decision. The appellant denied that he was given any warnings. The sheriff testified that the appellant said that he did not want an attorney and was not guilty of the robbery committed at Hall's store and could not be guilty of it because he was not in Calhoun Falls on that day. However, the appellant did admit that he left Arcadia, Florida on January 7, 1971, on Trailways Bus to Atlanta, Georgia and arrived in Calhoun Falls on January 8, 1971.
The appellant testifying at this hearing in the absence of the jury, said that the sheriff did not give him the Miranda warnings and that he stated to the sheriff that he wanted a lawyer. He further testified that he was not guilty of the robbery committed at Hall's store. We quote from the appellant's testimony given on cross-examination, the following:
"Q. But you did say freely and voluntarily that you left Arcadia, Florida on the 7th of January on the Trailways bus and you went to Atlanta and arrived at Calhoun Falls on the 8th of January?
"A. Yes, sir, I said it.
"Q. You had no objection to saying that?
"A. No, sir.
"Q. And you did say that freely and voluntarily?
"A. Yes, sir."
We quote further from the appellant's testimony.
"Q. Well, were these men, Mr. Sorrow and the Sheriff, civil, nice, good to you when you had been in their custody?
"A. You mean while I getting questioned, or since I been to the jail?
"Q. Well, while you were getting questioned on the 22nd.
"A. Yes, sir, they talked civil.
"Q. Did he try to force you into anything?
"A. No, sir, he didn't force me into nothing.
"Q. Whatever you did say you said freely and voluntarily?
"A. Yes, sir.
*346 "Q. Of your own free will and accord?
"A. That's right."
Conflicting testimony raised an issue of fact to be determined by the trial judge. He found, beyond a reasonable doubt, that there was a voluntary waiver on the part of the appellant and he voluntarily, willingly and understandingly responded to the questions asked him. We think that the evidence supports the determination by the trial judge that the statement by the appellant was freely and voluntarily given.
The appellant alleges that the trial judge committed error in permitting the introduction into evidence of certain articles found approximately one mile from the scene of the crime. The appellant asserts that these articles were never connected with him nor with the crime.
Admittedly, the two men who robbed Hall's store were each armed with a double barrel shotgun and were wearing gloves. Footprints or tracks were found in close proximity to one corner of the store. Bloodhounds were immediately brought to the scene of the robbery and they picked up the trail where the footprints were found and followed it to a point approximately one mile from the store. The trail ended where an automobile had been driven into the area and turned around. The articles introduced in evidence were found within a few yards of where an automobile had turned around and included two double barrel shotguns, two pairs of gloves and a Trailways bus travel ticket. The 1959 white Buick automobile, with Georgia license plates thereon, was seen parked in the suspect area and the appellant and another man were in close proximity thereto.
The appellant concedes that the action of bloodhounds which were placed on the supposed track of the offender is admissible as evidence provided that the dogs are allowed to follow their instincts free and untrampled by their handlers. State v. Brown, 103 S.C. 437, 88 S.E. 21. However, the appellant takes the position that the *347 bloodhounds did not strike a trail at the scene of the crime, but were placed on a trail or footprint in an area near the corner of the store building. The appellant asserts that there was no testimony to place the appellant where the footprint was found and the trail began. Here, the bloodhounds were put on a trail at a point where the evidence tended to show that the person or persons who had robbed the Hall store had been. Since the appellant did not object to the admission of the bloodhound evidence, he is not in a position to raise any question as to its competency.
It is our conclusion that the trial judge did not err in allowing the exhibits, to which objection was made, to be introduced into evidence as such tended to connect the appellant with the commission of the crime with which he was charged. The sufficiency of the evidence was, of course, a question for the jury but such did have probative value upon the issue they had to decide.
The appellant contends that the trial judge erred in allowing the bus ticket, dated February 7, 1971, to be introduced into evidence.
The sheriff testified that the ticket offered in evidence was found by him in the suspect area on the night of January 13, 1971. When this ticket was offered for introduction into evidence, the appellant objected to such "on the ground that it has been available for any number of people to tamper with" and "it has not been in any way connected with either of these defendants."
The appellant now undertakes to argue that the bus ticket was erroneously allowed to be introduced, on a ground not interposed as an objection upon the trial of the case. We have held that where testimony is received under objection, an appellant in this Court must rely upon the specific grounds of objection assigned on the trial. State v. Owens, 124 S.C. 220, 117 S.E. 536. It is apparent that under the established rules of appellate practice the question sought to be raised by the appellant is not properly before this Court.
*348 The appellant contends that the court erred in allowing the introduction into evidence of a moulage cast of an automobile tire imprint found in the suspect area.
The sheriff testified that he made a cast of a tire imprint found in the suspect area. Thereafter, he was permitted to testify that this cast matched and was identical with a tire which was found on the right front wheel of the 1959 white Buick automobile owned by the appellant. The attorney for the appellant, at this point, stated "I would like first that the officer be qualified before his opinion is heard as an expert, or what ever he is going to qualify as." In response to the request of counsel for the appellant, the sheriff testified that he had been an officer for some thirty years and during that period of time had made many casts and then compared such with objects that might have made the imprint in the ground. Thereafter, counsel for the appellant cross-examined the sheriff without reserving any possible objection that he had to his testimony. We have held that where testimony has been admitted in evidence over objection and counsel cross-examines the witness thereafter without reserving his objection previously made, such objection is thereby lost and if any error had been committed in the admission of the testimony it was cured. State v. Motley, 251 S.C. 568, 164 S.E. (2d) 569.
All of the exceptions of the appellant are found to be without merit 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/1331098/ | STATE OF NORTH CAROLINA
v.
MARVIN COVINGTON.
No. COA06-1575
Court of Appeals of North Carolina.
Filed October 2, 2007
This case not for publication
Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.
Geoffrey W. Hosford for Defendant.
STEPHENS, Judge.
In August 2003, Defendant twice kidnapped his former girlfriend, "Julie,"[1] raping her during the second kidnapping. After a trial by jury, Defendant was convicted of two counts of first-degree kidnapping, first-degree rape, robbery with a dangerous weapon, and multiple misdemeanors stemming from the abductions. The jury also found that Defendant had obtained the status of a violent habitual felon. Defendant was sentenced to life imprisonment without parole. Defendant appeals.
The State's evidence at trial tended to show that Defendant and Julie began dating in 2001 and that in 2002 Defendant moved into Julie's apartment in Charlotte where she lived with her son . After the relationship deteriorated, Julie asked Defendant to move out of the apartment. Defendant refused, Julie and her son thus moved out in July 2003, and Julie obtained a domestic violence protective order against Defendant in early August 2003 .
While at work on 15 August 2003, Julie called her son at their new apartment and told him she would be returning home to have lunch with him. As they were eating lunch, Defendant emerged from the apartment's laundry room carrying a knife and threatening Julie and her son. Defendant told the son that he would not hurt Julie if the son did not call the police. Defendant forced Julie out of the apartment with the knife and told Julie "not to try anything[.]" Defendant made Julie drive him away from her apartment in her car, but at some point thereafter Defendant and Julie switched positions in the car so that Defendant was driving. Defendant drove the car to a wooded area outside of Concord, north of Charlotte. Defendant told Julie that "he was going to kill [her][.]" Defendant made Julie take off her clothes, grabbed her wrist, and began leading her away from the car into the woods. When Defendant let go of her wrist, Julie ran back to the car, grabbed the keys off the car's trunk, and escaped. Julie contacted the police and returned to Charlotte . She did not see Defendant again until 28 August 2003 .
On 28 August 2003, Defendant approached Julie while she was working, placed his arm around her neck, and said, "Let's go." Defendant told Julie he had a knife. He forced Julie into her car and drove the car to the end of a dead-end road in Charlotte. Defendant brandished the knife and told Julie to remove her clothes and to get in the backseat . Defendant raped Julie in the backseat . Afterwards, Defendant drove the car to another location, took money from Julie's purse, and told Julie she could leave.
Defendant was arrested on 29 August 2003 . On 22 September 2003, Defendant was indicted on multiple charges arising out of the kidnappings . On 13 March 2006, Defendant was indicted for being a violent habitual felon . Defendant was tried between 24 April and 27 April 2006, thirty-one months after being indicted in 2003.
Defendant first argues that the trial court erred by denying his pro se motion in which he asserted a violation of his right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18, of the North Carolina Constitution. In response, the State contends that Defendant was not entitled to a hearing on his pro se motion because, at the time the motion was filed, Defendant was represented by appointed counsel. See State v. Grooms, 353 N.C. 50, 61, 540 S.E.2d 713, 721 (2000) ("Having elected for representation by appointed defense counsel, defendant cannot also file motions on his own behalf or attempt to represent himself. Defendant has no right to appear both by himself and by counsel."), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). It appears from our review of the record that Defendant was represented by counsel at the time he filed his pro se motion; consequently, Defendant never properly raised his constitutional issue in the trial court and has therefore waived appellate review of this issue. Grooms, 353 N.C. 50, 540 S.E.2d 713.
Assuming arguendo that the speedy trial issue was properly raised in the court below, Defendant's right to a speedy trial was not violated.
The United States Supreme Court has identified four factors "which courts should assess in determining whether a particular defendant has been deprived of his right" to a speedy trial under the federal constitution. Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 117 (1972). These factors are: "(1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of [the] right to a speedy trial, and (4) prejudice resulting from the delay." State v. Willis, 332 N.C. 151, 164, 420 S.E.2d 158, 163 (1992). We follow the same analysis in reviewing speedy trial claims under Article I, Section 18 of the North Carolina Constitution. See State v. Jones, 310 N.C. 716, 314 S.E.2d 529 (1984) and State v. Avery, 95 N.C. App. 572, 383 S.E.2d 224 (1989), disc. rev. denied, 326 N.C. 51, 389 S.E.2d 96 (1990).
State v. Webster, 337 N.C. 674, 678, 447 S.E.2d 349, 351 (1994).
First, "[t]he length of the delay is not per se determinative of whether a speedy trial violation has occurred." Id. (citing State v. Pippin, 72 N.C. App. 387, 392, 324 S.E.2d 900, 904, disc. review denied, 313 N.C. 609, 330 S.E.2d 615 (1985)). The length of the delay in this case, "[w]hile not enough in itself to conclude that a constitutional speedy trial violation has occurred, . . . is clearly enough to cause concern and to trigger examination of the other [Barker] factors." Id. at 679, 447 S.E.2d at 351 (citing State v. McKoy, 294 N.C. 134, 141, 240 S.E.2d 383, 388 (1978)); see also Grooms, 353 N.C. 50, 540 S.E.2d 713 (holding that delay of three years and 326 days from indictment to trial triggered examination of other Barker factors).
Second, "defendant has the burden of showing that the delay was caused by the neglect or willfulness of the prosecution." Grooms, 353 N.C. at 62, 540 S.E.2d at 721. The record on appeal does not clearly establish the reason for the delay. In his pro se motion, Defendant contends that the delays were due to the assignment of four different assistant district attorneys to his case in a "deliberate attempt to delay the trial[.]" Nothing in the record supports Defendant's assertion. The record contains only two documents filed in the case between the date of Defendant's arraignment and the trial: Defendant's pro se motion and a motion in limine filed the day the trial began. From our review of the transcript, we are able to determine only that the matter was continued once in 2006 at the request of defense counsel due to his wife's illness . In sum, Defendant has not met his burden of showing that the delay was caused by the neglect or willfulness of the State.
Third, as stated above, defense counsel never filed any motions asserting Defendant's right to a speedy trial. While the failure to assert the speedy trial claim does not foreclose the claim, it "does weigh against [Defendant's] contention that he has been denied his constitutional right to a speedy trial." Id. at 63, 540 S.E.2d at 722 (citing Webster, 337 N.C. at 680, 447 S.E.2d at 352).
Fourth, in considering whether Defendant has been prejudiced by a delay between indictment and trial, our Supreme Court has noted that a speedy trial serves
"(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system."
Webster, 337 N.C. at 681, 447 S.E.2d at 352 (quoting Barker, 407 U.S. at 532, 33 L. Ed. 2d at 118). Regarding this factor, Defendant argued in his pro se motion that "[t]he unreasonable delays have given [Julie] opportunity to change and tailor her story." We note, however, that Julie's testimony at trial was substantially similar to the statements she gave to the police immediately after the kidnappings.
Upon balancing the Barker factors, we hold that Defendant's constitutional right to a speedy trial was not violated. Defendant's argument is overruled.
Defendant next argues that the trial court erred in (1) denying his pre-trial motion in limine and (2) permitting Julie "to testify about statements purportedly made to her by [Defendant]." We disagree.
In his motion in limine, Defendant asked the trial court to suppress statements Julie gave to police officers after the kidnappings . At a hearing on the motion, the trial court ordered portions of the statements redacted, but ruled that the statements as modified could be admitted into evidence . At trial, Defendant did not object to the admission of the statements . "Our Supreme Court has consistently held that `[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.'" State v. Tutt, 171 N.C. App. 518, 520, 615 S.E.2d 688, 690 (2005) (quoting State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam)); see also State v. Oglesby, ___ N.C. ___, 648 S.E.2d 819 (2007) (discussing this Court's decision in Tutt); N.C. R. App. P. 10(b)(1). Defendant's argument that the statements were erroneously admitted is without merit.
Defendant's additional contention that the trial court erred in allowing Julie to testify as to certain statements allegedly made by Defendant is similarly without merit. Specifically, Defendant argues that the trial court erred in allowing Julie to testify that (1) during the 15 August 2003 kidnapping, Defendant "told me to call [my son] and tell him that I had dropped [Defendant] off downtown at the bail bondsman's office[,]" and (2) during the 28 August 2003 kidnapping, "[Defendant] had told meverbally that he had killed before." At trial, however, Defendant offered no objection to Julie's testimony concerning the bail bondsman, and thus Defendant's argument to this Court is misplaced . See N.C. R. App. P. 10(b)(1) ("In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make[.]").
On the other hand, Defendant's objection to Julie's testimony concerning Defendant's statement about prior killings properly preserved that issue for our review. "The standard of review for this Court assessing evidentiary rulings is abuse of discretion." State v. Boston, 165 N.C. App. 214, 218, 598 S.E.2d 163, 166 (2004) (citing State v. Meekins, 326 N.C. 689, 696, 392 S.E.2d 346, 350 (1990)). "A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985) (citing State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985)).
One of the misdemeanors for which Defendant was indicted was communicating threats in violation of N.C. Gen. Stat. § 14-277.1(a) (2003). The essential elements of this offense are:
(1) A willful threat to physically injure another person . . .;
(2) The threat is communicated to the other person orally, in writing, or by any other means;
(3) The threat is made in a manner and under circumstances which would cause a reasonable person to believe that the threat is likely to be carried out; and (4) The person being threatened believes that the threat will be carried out.
Id. Immediately after Defendant's objection to Julie's testimony about Defendant's prior killings, the trial court instructed the jury that the statement was being allowed "to show her state of mind that she may have been frightened by [Defendant], not to believe that [Defendant] committed some other crime." That Julie may have been frightened goes to the fourth element of the offense. Accordingly, we discern no abuse of discretion in the trial court's ruling. Defendant's argument is overruled.
By his final argument, Defendant asserts that the trial court erred in denying his motion to dismiss the violent habitual felon indictment because the predicate felonies were not Class A through E felonies at the time Defendant was convicted of the predicate offenses. See N.C. Gen. Stat. § 14-7.7(b) (2005) (stating that for purposes of the violent habitual felon statute, "violent felony" includes "[a]ll Class A through E felonies"). The predicate offenses for which Defendant achieved violent habitual felon status were Class H felonies at the time of his convictions for those crimes but, at the time of his conviction in the present case, had been reclassified by the Legislature as "Class A through E felonies." Defendant concedes "that prior convictions . . . that did not qualify as predicate felonies for violent habitual felon status at the time of conviction but that do at present may be used to achieve violent habitual felon status." See, e.g., State v. Wolfe, 157 N.C. App. 22, 37, 577 S.E.2d 655, 665 (holding that offenses which have been "upgraded" by the General Assembly may be used to achieve violent habitual felon status), appeal dismissed and disc. review denied, 357 N.C. 255, 583 S.E.2d 289 (2003). Defendant's argument is without merit, and we decline his request to reconsider and reverse the holding in Wolfe. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court."). In Defendant's trial, we find
NO ERROR.
Judges McGEE and SMITH concur.
Report per Rule 30(e).
NOTES
[1] We use the pseudonym, "Julie," to protect the former girlfriend's privacy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331110/ | 188 S.E.2d 612 (1972)
14 N.C. App. 481
AETNA INSURANCE COMPANY
v.
CARROLL'S TRANSFER, INC., and Webster R. Daniels.
No. 726SC387.
Court of Appeals of North Carolina.
May 24, 1972.
*613 Briggs, Meadows & Batts, by Charles B. Winberry, Rocky Mount, for defendant-appellant.
Battle, Winslow, Scott & Wiley, by Robert L. Spencer, Rocky Mount, for plaintiff-appellee.
BROCK, Judge.
This is an attempted appeal by defendant-appellant Carroll from a denial of its motion entitled "Motion to Sever and Remove." Carroll contends that the trial court erred in denying its motion to sever because Aetna's two claims, one claim asserted against Carroll and the alternative claim against Daniels, cannot be joined in one civil action. However, Carroll admits that if joinder of the alternative claim is proper, then there is no question that the venue in Bertie County is proper.
G.S. § 1A-1, Rule 20(a) specifically allows alternative joinder of defendants. "All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and of any question of law or fact common to all parties will arise in the action." G.S. § 1A-1, Rule 20(a).
Alternative claims may be joined under G.S. § 1A-1, Rule 20(a) if two tests are met. First, each claim must arise out of the same transaction, the same occurrence, or a series of either. In this case, Aetna's alternative claim against the defendants arises out of the alleged transaction between Carroll and Daniels, in that Carroll or someone on its behalf paid a sum of money to Daniels in full settlement of a claim to which Aetna was subrogated. The second test is that each claim must contain a question of law or fact, which will arise, common to all parties. The second test is satisfied in this case because Aetna's claim for relief arises from a common question of factwhich of the defendants owes plaintiff the $8,196.10. If Carroll or someone on its behalf paid a sum of money to Daniels in full settlement, Daniels has delivered none of the proceeds of the settlement to Aetna. Nor has Carroll paid any money directly to Aetna for *614 the damages to the vehicle of its insured to which claim Aetna is subrogated by its payment to Daniels.
Therefore, the facts alleged in Aetna's complaint support alternative joinder. "The practical occasion for alternative joinder is that created by uncertainty as to which of several parties is entitled to recover or is liable. Obviously uncertainty more frequently exists with respect to the person liable than to the person entitled, hence alternative joinder of defendants is more frequent." 1 McIntosh, N.Car.Pract. & Proc.2d, § 661.
Although the basic philosophy of the party joinder provisions is to allow relatively unrestricted initial joinder, there are provisions in G.S. § 1A-1, Rule 20(b) and G.S. § 1A-1, Rule 42(b) for the trial judge to sever and order separate trials.
"Rule 20(b) gives this power [separate trial] to the judge, by authorizing him to order separate trials, or make other orders to prevent a party from being embarrassed, delayed, or put to expense by the joinder of a party . . . . This may be done on motion of either party, and the decision whether to do so rests in the discretion of the trial judge." 1 McIntosh, N.Car.Pract. & Proc.2d, § 662.
G.S. § 1A-1, Rule 42(b) which gives to the trial judge general power to sever, undoubtedly confers the same power contemplated by G.S. § 1A-1, Rule 20(b). Whether or not there should be severance rests in the sound discretion of the trial judge. See comment to G.S. § 1A-1, Rule 42(b); and 1 McIntosh, N.Car.Pract. & Proc.2d, § 1341.
The motion to sever was addressed to the discretion of the trial court, and its determination thereof is not reviewable on appeal in the absence of abuse of discretion or of a showing that the order affects a substantial right of the moving party.
In this case, the moving party Carroll has not shown an abuse of discretion nor has it claimed the loss of a substantial right.
Dismissed.
MALLARD, C. J., and CAMPBELL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331117/ | 228 Ga. 864 (1972)
188 S.E.2d 864
NISKEY LAKE WATER WORKS, INC.
v.
GARNER et al.
27084.
Supreme Court of Georgia.
Argued March 15, 1972.
Decided April 6, 1972.
Long & Seifferman, Floyd E. Seifferman, Jr., for appellant.
Webb, Parker, Young & Ferguson, Guy Parker, Troutman, Sanders, Lockerman & Ashmore, Milton A. Carlton, Jr., Robert F. Cook, Arthur K. Bolton, Attorney General, for appellees.
Heard, Leverett & Adams, L. Clifford Adams, Jr., amicus curiae.
GUNTER, Justice.
The appellant here brought an action for a writ of mandamus in the trial court against the Chief Inspector of Fulton County that would require him to *865 enforce the Building Code of Fulton County against Litchfield Construction Co., Inc. Litchfield was engaged in a construction project on land that had formerly been located outside the corporate limits of the City of Atlanta within Fulton County but which had been annexed by ordinance of the City of Atlanta so as to come within that city's corporate limits. The crux of the appellant's complaint was that the attempted annexation was illegal, the subject land is still located outside the corporate limits of the city within Fulton County, and that the Fulton County official should be required to exercise Fulton County's jurisdiction over the subject land with respect to Fulton County's Building Code.
Litchfield was permitted to become a party defendant by intervention, and Litchfield is in fact the real party defendant in the case.
The only issue for determination by the trial judge was whether the subject land was legally annexed so as to become a part of the City of Atlanta and under its jurisdiction rather than remaining outside the corporate limits and being under the jurisdiction of Fulton County. The trial judge found that there were no issues of fact for determination; he held as a matter of law that the subject land was legally annexed by the City of Atlanta so as to come within the city's jurisdiction; and he denied appellant's prayer for the issuance of a writ of mandamus.
The only issue for determination here is whether the trial judge was correct in holding that the annexation of the subject land was legal.
The appellant contends that the trial judge committed error, and urges upon us three basic reasons in support of this contention.
First, the City of Atlanta did not use the "60% method" (Code Ann. § 69-904) of annexation even though the city says that it did, since there were no electors residing on the subject land and since there was only one owner of the land. We consider this argument to be without merit. *866 The record shows that the procedures that must be followed in using the "60% method" were followed by the city in effecting this annexation. The one landowner involved signed the application for annexation, and since there were no electors residing on the land, the record clearly showing this, the failure to have electors sign the application was sufficiently and clearly explained. The fact that there was only one landowner involved in this annexation and no electors involved in this annexation did not prohibit use of the "60% method" prescribed by statute.
Second, the appellant urges that the 1966 Act providing for the "60% method" (Code Ann. § 69-904 et seq.), being a population Act, is not a "general law" or local Act of the General Assembly, and it is therefore in conflict with the 1965 Home Rule Act (Code Ann. § 69-1016) which prohibits municipalities from changing their boundaries "except by local act of the General Assembly or by such methods as may be provided by general law." We hold that the 1966 Act is a "general law" and provides a method of municipal annexation as contemplated by the 1965 Home Rule Act. See in this connection the case of Nichols v. Pirkle, 202 Ga. 372 (2a) (43 SE2d 306) (1947) where Chief Justice Jenkins, speaking for this court, said "laws operating uniformly throughout the state with respect to the subject-matter, but applying only to cities or counties of a common class having a certain number of inhabitants or more, are general statutes having uniform operation. [Citations]."
Third, the appellant makes the contention through ground recently plowed to the effect that the 1966 statute is unconstitutional in that it attempts to delegate "legislative power," including the right to change municipal boundaries, to local governments. A majority of the members of this court decided this issue adversely to the plaintiff's contention, and though the majority arrived at their destination by different routes in that case, the issue was nonetheless plainly and clearly decided. See *867 Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1 (178 SE2d 868) (1971). We decline to overrule the recent decision in Plantation.
Judgment affirmed. All the Justices concur, except Nichols and Hawes, JJ., who dissent.
HAWES, Justice, dissenting.
As recognized by the majority opinion, the proper determination of this case depends upon whether the area involved was properly annexed to the City of Atlanta. The purported annexation was had under the so-called 60 percent method provided by the Act approved March 10, 1966 (Ga. L. 1966, pp. 409, 410; Code Ann. § 69-904). This court dealt with the constitutionality of that Act in Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1 (178 SE2d 868), in which case Justice Nichols and I dissented. For the reasons set forth in that dissent, I am of the opinion that the annexation here in question was void and that the judgment of the trial court should be reversed.
I am authorized to state that Justice Nichols concurs in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331124/ | 374 S.C. 372 (2007)
650 S.E.2d 73
In the Matter of Retired Lee County Magistrate Davis A. WHITE, Respondent.
No. 26370.
Supreme Court of South Carolina.
Submitted July 2, 2007.
Decided August 13, 2007.
*373 Henry B. Richardson, Jr., Disciplinary Counsel, and Assistant Deputy Attorney General Robert E. Bogan, both of Columbia, for Office of Disciplinary Counsel.
Jacob H. Jennings, of Bishopville, for respondent.
PER CURIAM.
The Office of Disciplinary Counsel and respondent have entered into an Agreement for Discipline by Consent pursuant to Rule 21, RLDE, Rule 502, SCACR, in which respondent admits misconduct and consents to the imposition of a public reprimand. We accept the agreement and issue a public reprimand. The facts, as set forth in the agreement, are as follows.
FACTS
On March 11, 2003, a State Transport Police officer issued two tickets to the driver of a truck owned by Lee County. The officer reported to Disciplinary Counsel that respondent asked for help regarding the tickets, explaining that Lee County was a poor county. The officer declined to help the *374 county because he frequently received complaints from private carriers that government trucks ran overweight or without tarps, an offense for which private carriers routinely would be cited. According to the officer, respondent then called the county maintenance department supervisor and advised him to make sure all drivers knew to put tarps on their loads. The county supervisor assured respondent every driver would be briefed, and it would not happen again. Respondent again asked the officer for help on the tickets, and the officer agreed. The tickets were marked to indicate that the defendant appeared, a trial was held, and the verdict was not guilty.[1] An employee in respondent's office then signed respondent's name in a box captioned "certified correct."
Respondent informed Disciplinary Counsel he recalled being contacted by the driver and the driver's supervisor about receiving help on the tickets. According to respondent, he remembered asking a State Transport Police supervisor for help regarding the tickets at a summary court seminar. The police supervisor indicated he could help with the tickets if the driver to whom the tickets were issued attended a training class. Respondent contended the tickets were marked not guilty by the officer before the officer arrived for court, and he assumed this was because the driver attended the class. Respondent admitted his employee acted on his behalf in signing the ticket, notwithstanding the fact that at least some information was incorrect, but maintained this had been the common practice in his court.
LAW
By his misconduct, respondent admits he has violated the following Canons of the Code of Judicial Conduct, Rule 501, SCACR: Canon 1 (judge shall uphold integrity of the judiciary); Canon 1A (judge should maintain high standards of conduct and should personally observe those standards); Canon 2 (judge shall avoid impropriety and the appearance of impropriety in all activities); Canon 2A (judge shall respect and comply with the law and shall act at all times in a manner *375 that promotes public confidence in the integrity and impartiality of the judiciary); Canon 2B (judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment); Canon 3 (judge shall perform the duties of the judicial office impartially and diligently); Canon 3B(2) (judge shall be faithful to the law and maintain professional competence in it); Canon 3B(7) (judge shall not initiate ex parte communications); and Canon 3B(8) (judge shall dispose of all judicial matters fairly).
CONCLUSION
We find that respondent's misconduct warrants a public reprimand. Accordingly, we accept the Agreement for Discipline by Consent and publicly reprimand respondent for his misconduct.
PUBLIC REPRIMAND.
TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.
NOTES
[1] Apparently, this is the common practice of marking tickets when police elect not to prosecute a ticket because there is no option on the ticket to indicate that the case was nol prossed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331126/ | STATE OF NORTH CAROLINA
v.
CHARLES ROBERT FRANKS.
No. COA07-95
Court of Appeals of North Carolina.
Filed October 2, 2007
This case not for publication
Attorney General Roy Cooper, by Assistant Attorney General Bethany A. Burgon, for the State.
Brian Michael Aus, for defendant-appellant.
TYSON, Judge.
Charles Robert Franks ("defendant") appeals from judgments entered revoking his probation and activating his suspended sentences for his prior convictions of taking indecent liberties with a child pursuant to N.C. Gen. Stat. § 14-202.1. We affirm and remand for correction of clerical error.
I. Background
On 3 December 2003, defendant pled guilty to five counts of taking indecent liberties with a child. Defendant pled guilty pursuant to a plea agreement and received one active sentence, in the mitigated range for imprisonment of fifteen months minimum and eighteen months maximum. The remaining consecutive and identical sentences for the four remaining counts were suspended, and defendant was placed on supervised probation for sixty months after completing his active sentence.
On 29 April 2005, defendant's probation officer issued probation violation reports alleging defendant had violated the conditions of his probation ordering him to: (1) "pay the Clerk of Superior Court the 'Total Amount Due' as directed by the Court or probation officer;" (2) "not [] purchase, possess or consume alcoholic beverages or controlled substances;" (3) "submit to blood, breath, and urine testing for analysis for the presence of prohibited drugs or alcohol as requested by the supervising officer and pay any fees associated with testing;" and (4) "abide by a designated curfew."
On 4 May 2005, defendant's probation officer issued another probation violation report alleging defendant had violated the conditions of his probation by failure to report to his probation officer as instructed, by being terminated from his sexual abuse treatment program for being non-compliant, and by failing to reside at his approved residence on a regular basis. These reports further alleged defendant had: (1) appeared to be under the influence of drugs; (2) admitted to his probation officer that he had been using crack/cocaine; (3) failed or refused to obtain and maintain gainful employment as required by his probation; and (4) traveled to Virginia in violation of the probation condition requiring him to remain within the jurisdiction of the trial court unless granted written permission to leave by the trial court or his probation officer. On 4 August 2005, defendant appeared in court and admitted to the allegations contained in the reports. The trial court revoked one of defendant's suspended sentences and activated the fifteen month minimum, eighteen month maximum sentence. The remaining three sentences remained suspended and defendant was continued on probation after serving the activated sentence.
On 8 May 2006, defendant was convicted of two counts of driving while license revoked and two counts of breaking and entering vending machines. On 24 May 2006, probation violation reports and notices of hearing were again issued against defendant. Defendant again admitted the violations in open court, waived formal presentation, and consented to Probation Officer James Powers ("Officer Powers") summarizing his violations.
Officer Powers testified that defendant had committed violations which occurred prior to the last probation violation hearing, but were pending and not disposed of until after the earlier hearing. Officer Powers explained, that since the last hearing, new offenses had been alleged against defendant but that he had not been convicted of the crimes at that time. Officer Powers testified defendant was convicted and had received the following active sentences: (1) two counts of misdemeanor larceny; (2) two counts of breaking and entering a coin machine or currency machine, receiving a sixty day active sentence; (3) driving with a revoked license, receiving a 120 day active sentence; and (4) felony breaking and entering a coin or currency machine, receiving a four to five month active sentence. Officer Powers explained that because all of the charges against defendant were pending at the time of the prior violation hearing, he had not included them in his previous violation report. Officer Powers recommended revocation of defendant's probation based upon the multiple charges and convictions, and new offenses which occurred in three different counties. Each of these offenses violated the three remaining suspended probationary sentences.
The trial court determined defendant had, "willfully, without lawful excuse, violated terms and conditions of his probation" and entered judgments, which revoked the sixty month term of probation and activated defendant's suspended sentences of the three consecutive terms of imprisonment. Defendant appeals.
II. Issues
Defendant argues the trial court erred by: (1) revoking his probation for convictions pre-dating the first probation violation hearing, which were not included in the earlier violation report; (2) failing to make sufficient findings of fact to revoke his probation; and (3) finding, in his absence, that each violation, in and of itself, was a sufficient basis upon which probation could and should be revoked.
III. Standard of Review
Upon a hearing to determine whether or not probation should be revoked, and a sentence previously suspended should be activated, all that is required is that the evidence be such as reasonably to satisfy the judge, in the exercise of his sound discretion, that the defendant has violated a valid condition upon which the sentence was so suspended.
State v. Seagraves, 266 N.C. 112, 113, 145 S.E.2d 327, 329 (1965). "'Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" State v. Trull, 349 N.C. 428, 445, 509 S.E.2d 178, 190 (1998) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999).
IV. Convictions Not in Previous Violation Reports
Defendant argues the trial court erred by revoking his probation for charges which predated his first probation violation hearing and were not included in previous violation reports. We disagree.
Defendant's first probation violation hearing was held on 4 August 2005. The trial court determined that defendant, "willfully, without lawful excuse, violated terms and conditions of his probation" and activated a portion of his suspended sentence. On 8 May 2006, defendant was convicted of: (1) driving while licensed revoked on 24 January 2005; (2) breaking and entering vending machines on 10 June 2005; (3) driving while licensed revoked on 7 July 2005; and (4) breaking and entering vending machines on 8 May 2006.
The trial court correctly revoked defendant's probation. In order to revoke probation, "all that is required is that the evidence be such as reasonably to satisfy the judge, in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was so suspended." Seagraves, 266 N.C. at 113, 145 S.E.2d at 329. A condition of defendant's probation was that he not commit a criminal offense in any jurisdiction. Defendant was convicted of multiple offenses over different periods of time in multiple counties. The trial court found each conviction was sufficient to revoke defendant's probation. Defendant failed to argue or show these violations were not wilful and the trial court abused its discretion. This assignment of error is overruled.
V. Clerical Error
Defendant argues the trial court erred when it failed to make sufficient findings of fact to revoke his probation. The trial court found in its judgments that defendant had violated specified conditions of his probation as alleged in the "notice of hearing on violation of unsupervised probation" where he was charged with violating the terms of his probation through a violation report.
A clerical error has been defined as "[a]n error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination." State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000). "[A] court of record has the inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakes or supply defects or omissions therein." State v. Davis, 123 N.C. App. 240, 242-43, 472 S.E.2d 392, 393 (1996).
The revocation order contains a clerical error. Each of the judgments entered state "[t]he defendant is charged with having violated specified conditions of the defendant's probation as alleged in the: . . . b. Notice of Hearing on Violation of Unsupervised Probation on file herein, which is incorporated by reference."
The wrong box was checked on each preprinted judgment form. Instead of checking box "b," the court should have checked box "a" which stated, "Violation Report(s) on file herein, which is incorporated by reference." The trial judge did not exercise "judicial discretion or undertake any judicial reasoning when signing" each judgment. Jarman, 140 N.C. App. at 203, 535 S.E.2d at 879. We remand this case for correction of this clerical error.
VI. Absence of Defendant from Findings of Fact
Defendant argues the trial court erred by making a finding of fact, in his absence, that each violation is, in and of itself, a sufficient basis upon which probation should be revoked. We disagree.
In open court, with defendant being present, the trial judge stated that defendant had "willfully, without lawful excuse, violated terms and conditions of his probation. Activate his sentence." On each judgment form is a finding that "each violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence."
A defendant has the right to be present at the time the sentence is imposed. State v. Beasley, 118 N.C. App. 508, 514, 455 S.E.2d 880, 884 (1995). "A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962).
In a similar case, the defendant's sentence was vacated and the case was remanded for entry of a new sentencing judgment. State v. Crumbley, 135 N.C. App. 59, 66-67, 519 S.E.2d 94, 99 (1999). In Crumbley, the trial court rendered the sentence in open court in the defendant's presence, but did not indicate whether the sentences would run consecutively or concurrently. 135 N.C. App. at 61, 519 S.E.2d at 96. The trial court later entered a written and signed judgment that stated the sentences would run consecutively with no indication in the record that the defendant was present. Id. Here, unlike in Crumbley, there was no change in the basis of defendant's judgments or sentence to require the remand for the entry of a new sentencing judgment.
Each judgment for defendant's original convictions, during which defendant was present, stated each of the sentences would run consecutively. Defendant was notified and knew his original consecutive terms of imprisonment could be activated if his probation was revoked. Defendant failed to show the trial judge abused his discretion by finding and concluding that "each violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence." This assignment of error is overruled.
VII. Conclusion
Defendant failed to show any error in the trial court's decision to revoke his probation and finding as fact that each violation is, in and of itself, a sufficient basis upon which probation should be revoked. Defendant received a fair hearing, free from the prejudicial errors he assigned, preserved, and argued.
The trial court's order revoking defendant's probation and activating his suspended sentences is affirmed. This case is remanded for correction of the clerical error in accordance with this opinion.
Affirmed and Remanded for Correction of Clerical Error.
Judges McGEE and ELMORE concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331136/ | 650 S.E.2d 749 (2007)
KAIN
v.
The STATE.
No. A07A1549.
Court of Appeals of Georgia.
July 31, 2007.
*750 Michael C. Garrett, Garrett & Gilliard, Augusta, for appellant.
Dennis C. Sanders, District Attorney, William P. Doupe, Assistant District Attorney, for appellee.
PHIPPS, Judge.
Based on a jury's finding that Lottie Kain's criminal negligence in failing to supervise her two-year-old daughter, Nicole *751 Payne, and her three-year-old son, Jonah Payne, caused the children's deaths by drowning in April 2005, Kain was convicted on two counts of cruelty to children in the second degree and given consecutive sentences of five years imprisonment followed by five years on probation. Kain appeals her convictions. Among other things, she challenges the sufficiency of the evidence to show that she was criminally negligent. We find the evidence sufficient and affirm.
A succession of state's witnesses testified to Kain's chronic neglect in supervising her children. Her landlord testified that a couple of months after Kain and the children's father had moved into their residence, the landlord found Jonah by himself in the middle of the road near a ravine into which he could have fallen. When the landlord took the child home, Kain sought to justify her inattention to the child, then about one and one-half years old, by explaining that she had put him outside to play and told him not to leave the yard. On another occasion, the landlord observed that Kain and the father had left Jonah home alone in his playpen. The landlord had to explain the danger of that to Kain. Testimony given by two of Kain's neighbors showed that Kain often came over to their residences to use their telephones, leaving both Jonah and Nicole home alone, and that on numerous occasions they saw Jonah wandering outside by himself. After Kain left the children home alone for almost an hour awaiting a telephone call, one of the neighbors decided not to let her use the telephone anymore. The other neighbor stopped coming to the door when Kain knocked.
After receiving a report that Kain and the father had left Jonah home alone to attend a party, the Department of Family and Children Services provided the couple with inhome parenting classes. While the classes were in progress, Kain continued to leave Jonah, and then Nicole, unattended. These classes continued for about two years. The month after the classes ended, emergency medical personnel were summoned to Kain's residence because Nicole, unsupervised by any adult, had somehow gotten hair remover on her head and face. As a result, she was taken by ambulance to the hospital for treatment of chemical burns.
The drowning deaths of the children occurred the following month. Another one of Kain's neighbors testified that she saw Jonah and Nicole playing outside without supervision on that day, as she had many other times. At about 3:00 p.m., she saw the children going toward the rear of their residence. That was the last time she saw them. Kain testified that the children were with her at about 5:45 p.m., when they wandered outside the house. At a neighbor's urging, Kain placed a 911 call at about 6:00 p.m. reporting that the children were missing.
A paramedic who appeared on the scene at the time of the children's disappearance testified that although the father was extremely distraught and "just begging us to find his babies," "[t]he only concern [Kain] had was, I hope I don't go to jail for this." In a statement to police, Kain acknowledged that the children had gotten out of the house by themselves several times that day. She also admitted that she had only gotten one or two hours sleep the night before and had fallen asleep later that morning, because a couple whom she and the children's father had met through a toll-free chat line advertised on television had come to their house during early morning hours for a sexual encounter.
Several days after the children's disappearance, their bodies were recovered from a sewage retention pond accessible through wooded trails and located about 1,200 feet from the children's home. The forensic pathologist who performed the autopsy testified that, in his expert opinion, the children were conscious and would have experienced pain before drowning.
Testifying on her own behalf at trial, Kain denied any negligence in supervising her children either on the day they wandered away and drowned or at any time before. A forensic psychologist who evaluated Kain testified that although she scored in a borderline range of intellectual functioning and had received diagnoses of depression and post-traumatic stress disorder, she had graduated from high school, was not mentally retarded, and did not suffer from any mental deficiency *752 or disorder that would relieve her of criminal responsibility.
1. There is no merit in Kain's challenge to the sufficiency of the evidence.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia[, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)].[1]
In Reyes v. State,[2] a three-year-old girl whose mother often allowed her to wander unsupervised outside the home was found unconscious in a neighbor's yard after being attacked by an animal. In Baker v. State,[3] police were summoned to break into a two-story home after the father had left his three-year-old and nine-month-old children unsupervised on the upper floor near an unprotected downward flight of stairs. In both cases, the parents' convictions for reckless conduct were upheld.
Reckless conduct
is an act of criminal negligence, rather than an intentional act, that causes bodily harm or endangers the bodily safety of another. It involves consciously disregarding a substantial and unjustifiable risk that a person's act or omission will cause harm or endanger the safety of the other person. Proof of criminal negligence is essential for a conviction of reckless conduct.[4]
Under OCGA § 16-5-60(b), reckless conduct is a misdemeanor.
Prior to 2004, Georgia had no felony statute protecting children from harm caused by criminal negligence. To rectify that situation, OCGA § 16-5-70(c) was amended in 2004 to provide that any person commits the offense of cruelty to children "in the second degree" when such person "with criminal negligence" causes a child under the age of 18 cruel or excessive physical or mental pain.[5] Also in 2004, subsection (b) was added to OCGA § 16-2-1 to define "criminal negligence" as "an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby."[6]
As in Reyes and Baker, the evidence here authorized a rational trier of fact to find the defendant guilty beyond a reasonable doubt of criminal negligence in the supervision of her children. Kain does not challenge the sufficiency of the proof to establish that she caused her children cruel or excessive physical or mental pain. We find no merit in Kain's challenge to the sufficiency of the evidence.
2. Kain charges the trial court with error in denying an oral motion to quash the indictment brought by defense counsel at trial. We find neither error nor prejudice.
"It is well established that a special demurrer, which objects to the form of the indictment, must be made prior to pleading not guilty to the indictment: A general demurrer, in which a defendant contends that the charging instrument fails altogether to charge him with a crime, may be raised at any time."[7] Thus, Kain's motion to quash the indictment was timely as a general demurrer but untimely as a special demurrer.
The true test of the sufficiency of an indictment that will withstand a general demurrer *753 is as follows: If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.[8]
Moreover,
[w]hen trial has been had before the appellate court reviews the merits of the motion to quash, where no prejudice to defendant has occurred though the indictment (or accusation or citation) is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice. Convictions are no longer reversed because of minor and technical deficiencies which do not prejudice the accused. Upon a proceeding after verdict, no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment (or accusation or citation). Thus a defendant who was not misled to his prejudice by any imperfection in the indictment (or accusation or citation) cannot obtain reversal of his conviction on that ground.[9]
In this case, Kain was charged with cruelty to children in the second degree based on allegations that, with criminal negligence, she had caused the children cruel and excessive physical and mental pain and suffering "to wit: . . . drowning death . . . by failing to reasonably supervise and reasonably watch said" children. In moving to quash the indictment, defense counsel argued that the allegations of the indictment were insufficient to charge Kain with commission of a crime, because failure to reasonably supervise or reasonably watch one's children does not amount to criminal negligence. This argument is without merit. Although the failure to reasonably supervise or watch one's children may not in and of itself constitute criminal negligence, such dereliction certainly may rise to that level depending on the circumstances. Thus, the indictment was good against a general demurrer. In addition, the trial court charged the jury on the allegations of the indictment as well as the legal definitions of "cruelty to children in the second degree," "criminal negligence," and "reckless conduct," and the court further charged the jury that no person shall be found guilty of any crime committed by misfortune or accident in which there was no criminal negligence. Therefore, Kain was not prejudiced by the wording of the indictment.
3. Kain contends that the trial court erred in allowing the state to present evidence of the sexual encounter in which she was involved the night before the drownings. Kain, however, has not preserved the issue for appellate review.
Prior to trial, the state filed a motion to introduce evidence of the sexual encounter as either res gestae evidence or as evidence of similar transactions or prior difficulties. By pretrial order, the court ruled that evidence of the sexual encounter could be admitted as circumstances surrounding the offense if the state could tie it to the negligence charged to Kain in allowing the children to wander away from the home before they drowned. The state made that connection through Kain's admission that the events of the night before had caused her to suffer a lack of sleep that day and that the children had been getting out of the house by themselves several times. Moreover, Kain waived her objection to admission of the evidence by failing to obtain a ruling at trial.[10]
4. Kain claims that the trial court abused its discretion by denying her motion for mistrial after the prosecutor commented to the court during his examination of a police officer that the court had found that a certain statement by Kain to the officer had been freely and voluntarily given. Kain also *754 complains of a curative instruction later given by the court.
After the court denied Kain's motion for mistrial, it immediately informed the jurors that, under detailed instructions the court would provide to them at the end of the trial, they would be required to make the ultimate decision whether Kain's statement to police was freely and voluntarily given. The jurors were not, however, required to make that decision, because the prosecutor in his subsequent examination of the officer decided not to elicit testimony from the officer concerning the statement in issue. Under these circumstances, Kain was not harmed by admission of the officer's testimony. Therefore, she was not entitled to a mistrial, and her challenge to the adequacy of the court's curative instruction is moot.
Judgment affirmed.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] Reyes v. State, 242 Ga.App. 170, 172(1), 529 S.E.2d 192 (2000) (citations and punctuation omitted).
[2] Id.
[3] 280 Ga. 822-823(1), 633 S.E.2d 541 (2006).
[4] Jackson v. State, 276 Ga. 408, 411-412(2), 577 S.E.2d 570 (2003) (citations and punctuation omitted).
[5] Ga. L.2004, p. 57, § 3.
[6] Ga. L.2004, p. 57, § 2.
[7] Palmer v. State, 282 Ga.App. 366-367, 638 S.E.2d 797 (2006) (punctuation and footnote omitted), certiorari granted by Supreme Court of Georgia on March 26, 2007.
[8] Dunbar v. State, 209 Ga.App. 97, 98(2), 432 S.E.2d 829 (1993) (citation and punctuation omitted).
[9] Wade v. State, 223 Ga.App. 222, 224, 477 S.E.2d 328 (1996) (citation and punctuation omitted).
[10] See Shelly v. State, 107 Ga.App. 736, 737(2), 131 S.E.2d 135 (1963). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262768/ | 306 A.2d 179 (1973)
S. S. KRESGE COMPANY
v.
Arthur E. BOUCHARD, Assessor of Taxes of the City of Woonsocket et al.
No. 1607-Appeal.
Supreme Court of Rhode Island.
June 28, 1973.
Hanson, Curran, Bowen & Parks, E. Howland Bowen, Providence, for plaintiff.
Richard J. Israel, Atty. Gen., W. Slater Allen, Jr., Asst. Atty. Gen., for State of Rhode Island.
OPINION
PAOLINO, Justice.
This case is before us on certification from the Superior Court of a question of doubt and importance. General *180 Laws 1956 (1969 Reenactment) § 9-24-27. The question certified results from a complaint brought by the plaintiff, the owner of certain real estate located in the city of Woonsocket, in which the city assessor of that municipality and the state of Rhode Island are named as the defendants.
In its amended complaint plaintiff alleges in substance that the city assessor overassessed the valuation of its property in Woonsocket and apportioned a correspondingly excessive and illegal tax thereon; that such illegal valuation and tax violated the equal protection clause of art. XIV, sec. 1 of amendments to the Federal Constitution; that the city assessor also violated §§ 42-44-25 and 42-44-26 by failing to provide a uniform statewide assessment; that the assessor was an agent of the state and that it was the duty of the state, as principal, by and through its agent, to assess a valuation and apportion a tax on plaintiff's real estate in accordance with the provisions of the equal protection clause of art. XIV, sec. 1 of amendments to the Federal Constitution, art. I, sec. 2 of the state constitution, and G.L. 1956 (1970 Reenactment) § 44-5-12. It is plaintiff's contention that the acts and omissions of the assessor in assessing an excessive and illegal valuation on plaintiff's real estate, and in apportioning a correspondingly excessive and illegal tax thereon constituted a violation of the duty imposed by these constitutional and statutory provisions; that this breach of duty constitutes a tort by the state as principal; and that, under the provisions of P.L. 1970, ch. 181, now G.L. 1956 (1969 Reenactment) § 9-31-1, it has an actionable claim for tort against the state.[1]
The state filed a motion to dismiss in the Superior Court on the ground that plaintiff's complaint failed to state a claim upon which relief could be granted. Before any action was taken on this motion, the Attorney General, who represented the state, being of the opinion that a question of law had arisen which was of such doubt and importance and so affected the merits of the controversy that it ought to be determined by this court before further proceedings, filed a motion in the Superior Court for certification of the following question in accordance with the provisions of § 9-24-27.[2]
"`Does the action comprehended by the plaintiff's complaint, as amended, state a claim against the defendant, State of Rhode Island and Providence Plantations, upon which relief can be granted to the plaintiff under the provisions of the General Laws, 1956, (1969 Reenactment, as amended), Title 9, Chapter 31?'"
*181 On November 11, 1971, an order of certification was entered and the Superior Court stayed all proceedings against the state until the question certified was heard and determined.
The facts in this case are simple and the issue raised by the certified question is very narrow. This case involves a claim by plaintiff that its real estate had been illegally assessed and taxed. Instead of availing itself of the remedy prescribed in § 44-5-26, by filing a petition for relief in the Superior Court, plaintiff brought this action under § 9-31-1 alleging that the allegations in its complaint, if proved, would constitute proof of a violation by the city assessor, as an agent of the state, of a duty owed to plaintiff, by virtue of which violation damage has accrued to plaintiff, that this would fall within the contemplation of the term "tort" as used in § 9-31-1, and that it would be a tort for which the state, as principal, would be liable to plaintiff.[3]
In brief, plaintiff argues that when the Legislature waived the sovereign immunity of the state and in express terms provided that the state shall be liable "in all actions of tort," (emphasis added) it evidenced a legislative intent that § 9-31-1 included all torts, regardless of the nature of the same and that it intended to subject the state to the same liability to refund taxes unlawfully exacted to which it had previously subjected its municipalities. Further, plaintiff makes reference to the Federal Tort Claims Act, 28 U.S.C.A. § 2674 (1965) and points out that the Federal Act specifically excludes any claim arising with respect to the assessment or collection of any tax. 28 U.S.C.A. § 2680 (1965). From this, plaintiff argues that the absence of comparable exclusions in ch. 31 of title 9, together with the express provision therein that the state shall be liable "in all actions of tort" signifies a legislative intent that the Legislature, in enacting § 9-31-1 after our decision in Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896 (1970), contemplated all torts.[4]
We answer the question certified to us in the negative. It is not necessary here to pass upon the question of whether the city assessor is an agent of the state. For the purposes of this case we shall assume that he is. This leaves open only the question of whether in enacting P.L. 1970, ch. 181 (now §§ 9-31-1 through 9-31-7) the Legislature contemplated the kind of relief plaintiff is seeking in this action. We do not believe that it did, and this is so notwithstanding the absence of any language expressly excluding claims arising out of the alleged illegal assessment or collection of any tax.
The relief which the Legislature provided for in § 44-5-26 is the exclusive remedy available for relief from an alleged illegal assessment of taxes. Murray v. Rockaway Boulevard Wrecking & Lumber Co., 108 R.I. 607, 277 A.2d 922 (1971). We feel certain that if the Legislature intended to furnish the taxpayer with another remedy by means of § 9-31-1, it would have said so in view of the existence of the remedy already provided in § 44-5-26.
We hold, therefore, that the action comprehended in the plaintiff's amended complaint does not state a claim against the state of Rhode Island upon which relief can be granted under the provisions of § 9-31-1.
The papers in the case are remanded to the Superior Court for further proceedings.
*182 JOSLIN, J., did not participate.
APPENDIX A
44-5-26. Petition in superior court for relief from assessment. Any person aggrieved on any ground whatsoever by any assessment of taxes against him in any city or town, may within three (3) months after the last day appointed for the payment without penalty of such tax, or the first installment thereof, if such tax be payable in installments, file a petition in the superior court for the county in which such city or town lies for relief from such assessment, to which petition the assessors of taxes of said city or town in office at the time such petition is filed shall be made parties respondent, and the clerk shall thereupon issue a citation substantially in the following form:
The State of Rhode Island and Providence Plantations.
To the sheriffs of our several counties, or to their deputies, Greetings:
We command you to summon the assessors of taxes of the town of: to wit, of (if to be found in your precinct) to answer the complaint of of on the return day hereof (said return day being the day of A.D. 19) in the superior court to be holden at the county courthouse in as by petition filed in court is fully set forth; and to show cause why said petition should not be granted.
Hereof fail not, and make true return of this writ with your doings thereon.
Witness, the seal of our superior court, at this day of in the year, Clerk.
Provided, however, that in case such person has not filed an account, he shall not have the benefit of the remedy provided in this section and in §§ 44-5-27 to 44-5-31, inclusive, unless (1) his real estate has been assessed at a value in excess of the value at which it was assessed on the last preceding assessment day, whether then owned by him or not, and has been assessed, if assessment has been made at full and fair cash value, at a value in excess of its full and fair cash value, or, if assessment has purportedly been made at a uniform percentage of full and fair cash value, at a percentage in excess of such uniform percentage, or (2) the tax assessed is illegal in whole or in part; and his remedy shall be limited to a review of the assessment on such real estate or to relief with respect to such illegal tax as the case may be.
44-5-27. Exclusiveness of remedy by petition. The remedy provided in § 44-5-26 shall be exclusive if the taxpayer owned or possessed any ratable estate at all, except that in a proper case the taxpayer may invoke the equity jurisdiction of the superior court provided that complaint is filed within three (3) months after the last day appointed for the payment without penalty of such tax, or the first instalment thereof, if such tax be payable in installments. A taxpayer alleging an illegal or void tax assessment against him shall be confined to the remedies provided by § 44-5-26.
NOTES
[1] General Laws 1956 (1969 Reenactment) § 9-31-1, under which the Legislature waived the state's immunity from liability in actions of tort, reads as follows:
"Tort liability of state.The state of Rhode Island and any political subdivision thereof, including all cities and towns, shall, subject to the period of limitations set forth in § 9-1-25, hereby be liable in all actions of tort in the same manner as a private individual or corporation, provided however, that any recovery in any such action shall not exceed the monetary limitations thereof set forth in the chapter."
[2] General Laws 1956 (1969 Reenactment) § 9-24-27, reads as follows:
"Certifications of questions of importance to the supreme court.Whenever in any proceedings, civil or criminal, legal or equitable, in the superior court or in any district court, any question of law shall arise, or the constitutionality of an act of the general assembly shall be brought in question upon the record, which in the opinion of the court, or in the opinion of the attorney general, if the state be a party to such proceeding or if he has intervened therein, is of such doubt and importance, and so affects the merits of the controversy that it ought to be determined by the supreme court before further proceedings, the court in which the cause is pending shall certify such question or motion to the supreme court for that purpose and stay all further proceedings until the question is heard and determined; provided, that no question shall be so certified in any criminal case where the defendant has not been released on bail."
[3] General Laws 1956 (1970 Reenactment) § 44-5-26 and § 44-5-27 are attached hereto as Appendix A.
[4] In Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896 (1970), we abrogated the immunity conferred by the courts of this state upon municipal and quasi-municipal corporations as to claims arising after June 30, 1970. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262794/ | 306 A.2d 1 (1973)
CITY OF SOUTH PORTLAND
v.
PINE STATE BY-PRODUCTS, INC.
Supreme Judicial Court of Maine.
June 12, 1973.
*2 Henry Steinfeld, Robert A. Wilson, Portland, for plaintiff.
Bennett & Schwarz, P. A. by John N. Kelly, Herbert H. Bennett, Barry Zimmerman, Harry H. Marcus, Portland, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE and ARCHIBALD, JJ.
WEBBER, Justice.
On July 25, 1967 defendant corporation, a rendering plant engaged in converting fish, meat and poultry waste products into commercially salable materials, was permanently enjoined from causing or allowing offensive odors injurious or dangerous to the health, comfort or property of individuals or of the public to escape from the defendant's plant to such a degree that they are detectable in any manufacturing or military or other facility or place in the vicinity of its plant by a person of normal or average sensitivity to odors.[1]
On August 10, 1971 the plaintiff City of South Portland, wherein defendant's plant is located, filed its complaint charging that on June 2, 1971 and sundry occasions thereafter the defendant disobeyed said order and was in contempt thereof. The matter came on to be heard by a single Justice who found for the defendant. Plaintiff's appeal brings the matter to us for review.
Appellant first contends that reversible error was committed when an expert witness offered by defendant was permitted to express an opinion and advance a theory outside the realm of his training and experience. Dr. Amos Turk, admittedly a qualified expert witness with extensive practical and theoretical training and experience in the field of detection and control of industrial odors and with particular knowledge of the problems and control system in defendant's plant, gave a detailed explanation of that control system and reached certain conclusions with respect to its effectiveness. That his expert opinion was deemed to be persuasive by the Justice below was clearly evidenced by the findings made in this case. These findings included the following:
"I was much impressed by the testimony of Dr. Turk who was called as a witness for the Defendant. That he is an expert in the field of odor control is established by concession. It was his unqualified judgment that the odors complained of could not have come from the Defendant's plant in the absence of any breakdown of the odor control equipment or the use of material which had putrified to a degree it gave off odor beyond the control of the odor control system.
There was no evidence whatsoever that the odor control equipment had broken down at any time or that the plant had used unsuitable material in its processing. As a matter of fact there was *3 evidence and I do find that on some occasions when the complaints of odor were made the plant was not in operation. * * *
In the present instance I am not satisfied from the evidence that this plant has been the source of any noxious odors on the dates on which complaints were registered."
Since these findings were firmly based on credible evidence, they were determinative of the issue of contempt. The point sought to be raised by appellant can be better understood if the evidentiary background be further elaborated. The plaintiff had presented a number of witnesses, private citizens and South Portland police officers, who described their detection of noxious odors on various dates which they concluded had emanated from defendant's plant. None of these witnesses, however, had entered the defendant's plant to observe whether the plant was operating or whether the control system was functioning. It is apparent that neither the defendant nor the Justice below believed that these witnesses were knowingly and intentionally giving false testimony. It was the theory of the defendant, ultimately accepted by the factfinder, that these witnesses did in fact detect noxious odors but were honestly mistaken as to their source. In this connection the findings state:
"Neither the sincerity nor the truthfulness nor the accuracy of any of the complainants is in doubt in my mind.
I have come to the irresistible conclusion from the evidence that from time to time there were odors so noxious as to produce nausea in the complainants. I have no doubt as to the sincerity or truthfulness of the investigating officers. I do have serious doubts as to the method by which they arrived at their conclusions that the noxious odors emanated from this plant.
* * * * * *
I am satisfied, however, that though the officers who investigated and testified were most certainly in good faith when they attributed the specific odors which they detected to this plant, they could well have been in error in attributing the odors to this particular source."
In support of its theory that plaintiff's witnesses, though not untruthful, were honestly mistaken, the defendant elicited from Dr. Turk, over plaintiff's objection, testimony explanatory of the theory of "false alarm." In effect the witness stated that he and other experts engaged in the field of sensory evaluation of materials and detection problems have determined on the basis of their own experience and that of others that one may be predisposed to expect a certain odor from a certain source and as a result sometimes conclude that he detects an odor which does not exist or that an odor he detects emanates from an expected source when in fact it emanates from a different source. The objection to this evidence was grounded on the contention that the "false alarm" theory involved psychiatry and psychology, fields in which the witness had no training and professed no special competence. We discern no error in admitting the testimony. The discretionary ruling of the Justice below as to the qualifications of an expert witness did not depend upon assigning labels to particular learning and experience of the witness. The witness demonstrated knowledge and competence in the area of sensory perception of odors which fully qualified him to furnish an opinion as to possibility of human error in detection and the reasons for it. The main issue, whether or not noxious odors emanated from defendant's plant, was decided on the basis of other evidence. The "false alarm" theory related only to whether the plaintiff's witnesses were honestly mistaken. In either event the Justice below was not disposed to accept their testimony as probative. It is understandable that the Justice below should not wish to have the public or the plaintiff's witnesses infer from a finding adverse to plaintiff that he had concluded *4 that these witnesses had been other than truthful. Dr. Turk's theory did no more than to support his conviction that they had made an understandable human error in detection.
Appellant's second contention relates to the factfinder's alleged misuse of a view of defendant's premises. At the request of both parties the Justice below visited the area in the company of opposing counsel. When the hearing was resumed he spread upon the record a detailed report of the observations made at the scene. This included the detection of a number of odors in the area and their apparent sources, as well as a negative observation as to any unpleasant odor emanating from defendant's plant. It is apparent from the ensuing colloquy that the sensory perceptions of counsel at the scene were the same as those recorded by the Court, and indeed counsel for plaintiff stated for the record, "I think you have been very fair in your description." The findings include a fair summation of the report of the view spread upon the record.
Clearly it would have been error for the factfinder to find, for example, that because no offensive odors were emanating from defendant's plant at the time of the view, the same condition obtained on other occasions earlier in the summer. In State v. Slorah (1919) 118 Me. 203, 106 A. 768 we adhered to the rule that a view is not evidence and is taken only to assist the factfinder in better understanding the evidence otherwise produced.[2] It is unnecessary to consider here whether or not the Slorah rule wholly accords with reality or is unnecessarily restrictive. Cf. Chouinard v. Shaw (1954) 99 N.H. 26, 104 A.2d 522. For in our opinion the use made of the view, including the detection of odors by the Justice below, did not violate the Slorah rule. The situation is closely akin to that discussed above in connection with the "false alarm" theory. On the basis of credible evidence the Justice was persuaded that on the dates of the complaints the odors could not and did not originate in defendant's plant. He also had evidence from witnesses as to the presence and sources of other noxious odors in the area, particularly odors emanating from the Stauffer Chemical Co. plant close by the defendant's premises. What he saw and smelled in the course of the view enabled him to better understand the testimony and, above all, to comprehend how it was possible for a number of truthful witnesses to fall into the same error as to the source of the offensive odor they detected. It may be noted, for example, that none of these witnesses was aware that Stauffer Chemical Co. was also at times the source of an industrial odor. We are satisfied that the determinative factual conclusions reached by the factfinder rested upon and were fully supported by credible evidence and were not based upon any misuse of the view as evidence.
Finally, appellant contends that "there was insufficient evidence to support the finding of the Court." M.R.C.P. Rule 52(a) provides in part, "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Findings are not "clearly erroneous" if supported by credible evidence. Ray v. Lyford (1958) 153 Me. 408, 140 A.2d 749. The Justice below was of the view that in a civil contempt proceeding based upon an alleged violation of an injunctive order, the plaintiff should have the burden of proving the violation by "clear and convincing" evidence. The plaintiff does not contend otherwise and we agree. Although proof beyond a reasonable doubt is not required, the fact that sanctions may result suggests the need for something more than proof by a bare *5 preponderance of the evidence. See Kansas City Power & Light Co. v. Nat. L. R. Board (1943) 8 Cir., 137 F.2d 77, 79. Our research and that of counsel have not disclosed any Maine case in which the requisite quantum of proof in a contempt proceeding has been considered, but the concept of proof by "clear and convincing evidence" is not unfamiliar to our Bench and Bar. Bragdon v. Chase (1953) 149 Me. 146, 99 A.2d 308; Harmon v. Perry (1934) 133 Me. 186, 175 A. 310. Our discussion above makes it apparent that the witnesses relied upon by the plaintiff were deemed by the factfinder to be wholly truthful but honestly mistaken as to their observations. Thus the plaintiff failed to sustain the somewhat rigorous burden of proof imposed upon it in this contempt proceeding.
Other points sought to be raised by the appellant are without merit and require no discussion here.
The entry will be
Appeal denied.
POMEROY and WERNICK, JJ., did not sit.
NOTES
[1] We have here paraphrased the language of the injunctive order to the extent necessary to adequately present the issue here raised.
[2] Slorah recognizes as exceptions statutory real actions and land damage cases as well as cases in which it is necessary to examine personal property that cannot conveniently be presented in court as exhibits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724797/ | 462 S.W.2d 596 (1971)
Alan Wayne DUKE, Appellant,
v.
The STATE of Texas, Appellee.
No. 43805.
Court of Criminal Appeals of Texas.
February 3, 1971.
*597 No attorney on appeal for appellant.
Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is driving while intoxicated, a subsequent offense; the punishment, ten days in jail and a fine of $500.00.
The record reflects that after a plea of guilty before the court, sentence was pronounced on the same day, April 27, 1970. Also, on April 27th, a motion for new trial was filed and amended. Such sentence is silent as to any waiver of the ten days in which to file a motion for new trial or in arrest of judgment, nor is there any other evidence of such waiver in the form of a separate instrument, notation on the docket sheet or in the transcription of the court reporter's notes. The sentence is not to be entered until after the expiration of the time allowed for making such motion unless there is a waiver of such period. Bedell v. State, Tex.Cr.App., 443 S.W.2d 850.
If the trial court finds that it has an untimely and improperly pronounced sentence and the accused desires to be heard on his timely filed and presented motion for new trial or in arrest of judgment, then the sentence should be set aside and repronounced in the event the motions are subsequently overruled.
For the reasons stated, the appeal is dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331157/ | 125 Ga. App. 601 (1972)
188 S.E.2d 437
RUSHING
v.
WILLIAMS.
46776.
Court of Appeals of Georgia.
Argued January 3, 1972.
Decided February 10, 1972.
Rehearing Denied February 29, 1972.
Arnall, Golden & Gregory, Alexander Cocalis, for appellant.
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Barry Phillips, Richard R. Cheatham, for appellee.
EVANS, Judge.
Alton I. Rushing sued Jackie G. Williams for rescission of a sale of certain corporate stock in six counts. In the first five counts he contends defendant violated the Federal Securities Act of 1933, as amended (15 USCA § 771 (1), (2)), as therein set out as well as § 4 of the Georgia Securities Act (Ga. L. 1957, p. 134 et seq., as amended; Code Ann. § 97-104). Plaintiff alleged he did not desire to retain the 4,000 shares of stock purchased, and elected to declare the sale to be voidable. He further alleged that he had disposed of 700 shares and that he tendered the other 3,300 shares of stock to defendant. As to Counts 1, 2 and 3, he sought a judgment for the purchase price of the stock plus interest and court costs. As to Counts 4 and 5 he sought the purchase price of the stock, plus interest, court costs, and reasonable attorneys fees, as allowed under the Georgia statute. In Count 6 plaintiff alleged that defendant failed to deliver the unrestricted stock within a reasonable time of the purchase date, and he was therefore entitled to the difference between value of the shares on date of delivery and the highest amount he could have sold said stock for during that period.
Defendant answered, denying the material portions of the complaint.
The case came on for trial at which time counsel for defendant orally moved to dismiss the suit and to enter judgment for the defendant on the ground that there was no tender of the shares of stock as referred to in the complaint. On its own motion the court continued the hearing for several days to enable the plaintiff to perfect a tender of said shares to the defendant. At the first hearing counsel for plaintiff argued that no tender was required; that he could seek damages for the stock that had been sold, as well as the value of the remaining stock. He also stated that he had learned from the defendant that defendant had the entire 4,000 shares in his *602 possession and plaintiff would amend to set this out. On the next hearing counsel for plaintiff advised the court that plaintiff had been unable to locate the stock; that it was either missing or lost; but that he was ready to proceed with the trial as he did not believe tender into court was absolutely necessary; that there was a procedure for obtaining the re-issue of the lost securities; and that he was willing for any judgment ultimately rendered in the case to be rendered subject to the actual delivery of the shares. The court stated that counsel for plaintiff claimed the stock was lost; but that there had been no tender in person or in open court after plaintiff claimed the stock was lost; but that there had been no tender in person or in open court after plaintiff had been given an opportunity to make such tender. Plaintiff did not request any further continuance; and the court dismissed his complaint, granting judgment in favor of the defendant. The appeal is from this judgment. Held:
1. Both the State and Federal Securities Acts, supra, authorize a suit by the purchaser for the value of the stock purchased upon tender of the securities where there has been a violation of the statute in the sale thereof. The Georgia statute reads, "upon tender to the seller." The Federal statute reads, "upon the tender of such securities." The exact time of tender is not provided for, but the cases of Buchholtz v. Renard, 188 FSupp. 888, 889 and Repass v. Rees, 174 FSupp. 898, hold that a tender into court would be sufficient tender, even though no other tender had been made. It thus appears from the facts of this case that plaintiff had not made a Personal tender and that no tender was made into court after the plaintiff was given an opportunity to do so. No motion for continuance was made by plaintiff in order to establish that the securities had been lost, missing or stolen whereby he might obtain a re-issue thereof. Whether or not a continuance should have been granted is not before the court. Accordingly, the lower court did not err in dismissing Counts 1, 2, 3, 4 and 5 of the complaint, involving both the State and Federal Securities Act.
2. Count 6 involves a question of damages. However, the *603 only error enumerated is that the court erroneously dismissed the case "for failure to make tender of stock." Thus, whether or not the court erred in dismissing the entire petition is not before us. Accordingly, for reasons stated above, the judgment must be affirmed.
Judgment affirmed. Bell, C. J., and Eberhardt, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331152/ | 125 Ga. App. 526 (1972)
188 S.E.2d 238
SECURITY DEVELOPMENT & INVESTMENT COMPANY
v.
BEN O'CALLAGHAN COMPANY.
46404.
Court of Appeals of Georgia.
Argued September 16, 1971.
Decided January 24, 1972.
Rehearing Denied February 22, 1972.
Rose, Hunt, Stern & Dailey, George S. Stern, J. Michael Kaplan, for appellant.
Lipshutz, Macey, Zusmann & Sikes, John M. Sikes, for appellee.
CLARK, Judge.
Ben O'Callaghan sued Security Development & Investment Company on a past due promissory note for principal, interest, and attorney's fees. The facts in connection with the execution and delivery of this note are detailed hereinafter.
Defendant denied the material allegations. Answering further, it denied any indebtedness to plaintiff; setting up that there was no consideration given for the note; that the consideration given by plaintiff for the note had failed; that the note was signed under duress and through a false representation by plaintiff that plaintiff had finished its work under a construction contract between the two parties; and that plaintiff had in this contract agreed with defendant to install in a multiapartment project a complete ventilation, heating and *527 air-conditioning system for $283,009, for which $245,000 had been paid, although plaintiff has never completed the same and the cost to do so is in excess of the amount sued for.
Defendant also made four counterclaims, each for $50,000. The first counterclaim alleged a breach of contract in that the system contemplated by their contract was never completed by plaintiff.
The second counterclaim alleged that plaintiff was to construct and install the complete system and would guarantee all material and workmanship for a period of one year from date of completion, but that after work began defendant had encountered many defects in workmanship and materials, and since June of 1969 has informed plaintiff of same but plaintiff has refused to put the system in proper condition.
The third counterclaim alleges plaintiff falsely represented it had completed the system, when in fact it was never completed and has never worked properly; that plaintiff has violated an implied warranty of fitness for a particular purpose under UCC 109A-2-315 and has refused despite demand to complete the system properly.
Counterclaim 4 alleges plaintiff on October 14, 1969, misinformed defendant that the system was completed and properly installed in order to induce defendant to execute the note sued on; that defendant relied on the representations and lacked the expertise to determine otherwise.
A trial was had resulting in a verdict for the plaintiff in the amount sued for, less an allowance to defendant for a water treatment system.
Defendant's appeal is from the denial of its motion for new trial as amended which enumerates such denial as error together with several evidentiary rulings and objections to portions of the charge of the court.
It appears from the evidence plaintiff designated as subcontractor entered into a contract with defendant under which plaintiff was to install the air-conditioning and ventilation system plus several other items in a multiapartment *528 project being built by defendant.
In their contract (styled "subcontract") reference is made to a 240-unit apartment project to be built in strict accordance with plans and specifications prepared by a certain architect. The contract in part recites:
"Subcontractor will furnish all labor and materials, equipment and supervision to install a complete heating, air-conditioning and ventilation system in strict accordance with all requirements of the plans and specifications. Particular mention of this work is made in section 15-B of the specifications and this subcontract includes all work contained therein and as described below ..."
The contract further stipulates: "All material and workmanship shall be guaranteed for one year from date of completion. Also 24 hours service and maintenance of gas engine units, for one year after completion, is included in this subcontract. All work shall be performed in complete harmony with other trades to the best interest of the job. In the event of change orders involving more or less work, it is hereby understood that the subcontract will be increased or decreased at the same unit prices used on the original quotation ... Weekly payments will be made on Friday for requisitions approved Monday of the same week and 10% will be withheld until all work is completed to the satisfaction of the project manager..." (Emphasis supplied.)
The above contract was executed on February 22, 1968, and construction began in April. The 240 units were incorporated in some 40 buildings and were intentionally built in staggered groups so that some would be ready for occupancy and income production while others would be in various stages of construction and completion.
Mr. O'Callaghan testified his company had finished its contract work on the project by June or July, 1968, and that its final payment plus the 10% retainage plus payment for certain extras was then due. A bona fide dispute arose as to the amount owed, O'Callaghan claiming $41,636, but an understanding was reached, concerning *529 which he testified: "And we shook hands on it at 36,5 (meaning $36,500) with the understanding a note, interest-bearing note, was to be given. The date on the note and the terms on which it was paid was based upon what they saw as their closing date for that project when they would obtain additional funds, which they felt like would be around November 15th or November 20th but might go as long as January 20, 1970, when their commitment ran out on this job. And so that was the basis on which the terms of the note came into being, that's when they would be able to meet my note, to redeem it."
There was evidence defendant's attorney drafted the note and that two or three days later the president of the defendant company executed and delivered it to the plaintiff.
The note is a promise to pay a certain sum ($36,500) on a certain day (November 19, 1969). Except with regard to the due date it provides: "In the event the permanent loan closing in the construction of the ... apartments has not been closed by November 19, 1969, the undersigned may extend the maturity day of the within note until one (1) day following said closing, but in no event shall said maturity date be extended beyond January 19, 1970."
1. The note sued on was by its terms an unconditional promise to pay a certain sum on a certain day as defined in the note. The case was tried for 5 days and the contentions of both sides were fully presented to the jury. The jury was authorized from the evidence to find, in answer to the defenses raised, that the defendant maker had given it to the plaintiff in discharge of the final payment (the amount of which had been disputed but was negotiated and agreed upon) owed to plaintiff under an installation contract between the parties which the plaintiff and the defendant had agreed and acted upon as completed. As regards the general grounds of the motion for new trial, "[T]he only query is whether the evidence supported the verdict. Southern R. Co. v. Adams, 14 Ga. *530 App. 366 (80 S.E. 912); Brown v. Bank of Cumming, 144 Ga. 655 (87 S.E. 887)." Daniels v. Hartley, 120 Ga. App. 294 (170 SE2d 315). A new trial was not authorized on the general grounds.
2. Error is enumerated with regard to the portions of the court's charge to the jury which quoted Code § 20-201, 20-106, 20-703, and 3-107.
Appellant urges these charges authorized the jury to disregard completely the written contract of the parties, that there was no basis for indicating to the jury that any oral agreements were involved; that the written contract was not ambiguous and was therefore the measure of all the duties and obligations between the parties.
In connection with the suit on the note, the defenses thereto and the counterclaims, the jury had before it the written installation contract which called for a precise amount of work and material for a stated price. However, the contract also expressly recognized that more or less work and material than that specified might be required and that the price would be changed thereby. As to these items the contract obviously contemplated further bargaining. There was evidence extra work items were performed which were the subject of negotiation between the parties.
The trial judge did not err in charging the jury on the general legal principles of the contracts complained of. It is the duty of the court to charge the law applicable to the evidence and the contentions of the parties. Rutland v. Jordan, 111 Ga. App. 106, 107 (140 SE2d 498); American Fire &c. Co. v. Grizzle, 108 Ga. App. 496, 497 (133 SE2d 400).
3. The appellant also contends the court erred by permitting over objection oral testimony to vary and contradict the warranty provision within the written contract, the alleged breach of which constituted the basis of some of the counterclaims. The warranty was: "All material and workmanship shall be guaranteed for one year from date of completion."
*531 There was evidence the 240 apartment units were incorporated in some 35 or 40 buildings which were intentionally built in staggered groups so that some would become ready for occupancy and income production while others would still be in various stages of construction and completion. O'Callaghan was asked: "What does this stage-by-stage construction you have just talked about have to do with establishing an average warranty date?" Defendant objected that the contract speaks for itself and it would be for the jury to determine the warranty date. This objection was overruled. Later there was again testimony by O'Callaghan regarding the warranty arrangements in such projects where some of the buildings are put into operation often months before the remaining buildings in the project are ready. A similar objection was made and overruled.
There was no error in overruling these objections. The testimony had no effect in varying the warranty. Of necessity the application of the warranty required a determination of the date of completion. There was evidence that some of the largest components of the system had been in full operation since early in the building program, yet part of the installation remained idle or unused until late in the building program. There was evidence of meetings and communications between the parties of a mutual desire to establish an "average warranty date" for the total installation rather than attempting to use the start-up dates of each individual unit within the system.
We agree with the position the appellant took during the trial of the case, to wit: "They warranted the work, and I think this is a question for the jury, what is one year from the date of completion ... The contract says all material and work shall be guaranteed for one year from date of completion. I think that would be a jury question as to what that means."
4. One of the defendant's counterclaims was predicated upon breach of contract by failing to complete the installation. The trial court charged the jury that one injured *532 by a breach of contract has a duty to mitigate damages. This charge was excepted to and is enumerated as error. There was no error. Code § 20-1410.
5. There having been no objection made to that portion of the court's charge asserted as error in enumeration 8, this enumeration will not be considered. Baxter v. Bryan, 122 Ga. App. 817 (2) (178 SE2d 724); Code Ann. § 70-207 (Ga. L. 1965, pp. 18, 31, as amended).
6. Defendant requested the court to charge that where a plaintiff bases his right to recover upon the entire contract, he cannot recover unless he has performed all of his obligations; and a party seeking enforcement of an executed contract must show performance of all of said contract upon his own part. There was no error in refusing these requests to charge.
Plaintiff's suit was not based upon the installation contract but upon an unconditional promissory note. A request to charge must be properly adjusted to some legal principle involved in the case. If it is not, denial of the request is proper. Slaughter v. Linder, 122 Ga. App. 144 (2b) (176 SE2d 450); Bowers v. Fulton County, 122 Ga. App. 45, 48 (176 SE2d 219).
7. Enumeration of error number 10 is that the court erred by allowing into evidence over objection a copy of a notarized affidavit by the defendant's president. The argument is made in appellant's brief that it was error to admit the document in evidence for the reason it was not authenticated and was merely a copy with no accounting for the original and thus violated the best evidence rule. The transcript of evidence shows the document was exhibited to the witness. He testified that he signed the original before a notary public.
It is generally held: "A clear and explicit admission of the correctness of a copy by the party against whom it is to be used is sufficient to justify its admission in evidence." 32A CJS 159, Evidence, § 819. Furthermore, to constitute reversible error, there must be error and it must be harmful. Harrison v. Hester, 160 Ga. 865 (3) (129 SE *533 528); Fricks v. Cole, 109 Ga. App. 143, 147 (135 SE2d 512). Harm has not been shown herein.
8. The eleventh enumeration is that the court erred in admitting certain documents in evidence which came from the files of the Citizens & Southern National Bank and identified by its Construction Loan Supervisor. Each document is a completed "Request for Construction Loan Advance" form submitted to the bank by defendant. Each is accompanied by a "breakdown" prepared by defendant for each item of work involved in the project. It shows the cost of each item, the percentage completion of each item, the amount of loan advance being requested toward each, and the total already advanced toward each. The breakdown is totaled so as to show the total cost, the total advance being requested, and the total which has already been received pursuant to past requests. Officers of the defendant identified their signatures on the documents.
These documents were admissible in evidence as records made in the ordinary course of business, and thus there was no error. Code Ann. § 38-711.
Judgment affirmed. Hall, P. J., and Eberhardt, J., concur.
ON MOTION FOR REHEARING.
CLARK, Judge.
Appellant filed his motion for rehearing on two grounds. The first asserts the original opinion in this case was written by a judge who had not been present at the time of the oral arguments. (The writer's predecessor, Honorable George P. Whitman, was ill at that time and subsequently retired).
*534 Although credit is to be given an advocate for his zeal in protecting the right of his client, it should be noted that "oral arguments before the appellate court are intended to aid the court in understanding the points raised and discussed in the briefs filed by the parties." 5 CJS 529, Appeal and Error, § 1401 (b).
The writer of the Corpus Juris Secundum article points out the right to make an oral argument in an appellate court exists only in accordance with provisions of applicable statutes or rules of the court. The latest rules of this court became effective July 1, 1971, and are contained in volume 122 of Georgia Appeals Reports beginning at page 885. Rule 41 provides for consideration of appeals "with or without oral argument and a quorum of the division is present." It further provides: "counsel in no case shall have the right to demand that the oral argument be had by a full division merely because of the absence of the other member of the division, he not being disqualified from participating in the decision of the case."
Ground 2 of the motion for rehearing earnestly contends that reconsideration should be had of Division 6 of the original opinion. Here "the same ground is plowed" as was argued in the written briefs. Presentation of the same material fails to meet the requirements of subparagraph F of rule 33 which states the basis for granting a rehearing.
The motion for permission to make another oral argument is denied as well as the motion for rehearing.
Judgment adhered to. Hall, P. J., and Eberhardt, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331156/ | 228 Ga. 860 (1972)
188 S.E.2d 859
JOHNSON
v.
THE STATE. SAWYER
v.
THE STATE.
27068, 27069.
Supreme Court of Georgia.
Argued March 15, 1972.
Decided April 6, 1972.
*863 Zachary & Segraves, J. Ed Segraves, for appellant.
Lewis R. Slaton, District Attorney, Joel M. Feldman, Carter Goode, Isaac Jenrette, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, W. Hensell Harris, Jr., Assistant Attorneys General, for appellee.
UNDERCOFLER, Justice.
Each of the appellants was convicted in the Superior Court of Fulton County on four counts of armed robbery and sentenced to five years on each count to be served consecutively. The appeals are from the judgments of conviction and sentences entered thereon and from the overruling of their motions for new trial. Held:
1. The appellants contend their motions for new trial should have been granted because the verdict is contrary to the weight of the evidence and contrary to the law since the State's evidence did not positively identify the appellants as the perpetrators of the crime nor did the *861 evidence positively identify the shotgun introduced in evidence.
The evidence shows that Gigi's Pizza Restaurant was robbed on July 4, 1971, by three men, one of whom entered the front door with a pistol in his hand and another came through the backdoor brandishing a sawed-off shotgun. The customers and employees in the restaurant were ordered to the front of the restaurant by the men at gunpoint, told to lie face down on the floor and not raise their heads, to lie still or they would be shot, and to hand over their wallets, watches and jewelry. The robbers took the money from the cash register, and took wallets, credit cards, jewelry and money from several of the customers and employees. The indictment against the third co-indictee was nol prossed on motion of the district attorney.
(a) Each of the appellants was positively identified by one or more witnesses introduced by the State as one of the robbers who perpetrated the crime. The witnesses identified the appellant Johnson as the robber with the sawed-off shotgun and the appellant Sawyer as the robber with the pistol.
(b) When Sawyer was arrested, a sawed-off shotgun was found in a closet of his home and he admitted during the trial that he had found a number of identification cards and credit cards of the victims in his home. The appellant Johnson admitted the shotgun belonged to him and Sawyer. The victims testified that the sawed-off shotgun used in the robbery appeared to be similar to the one introduced into evidence and was made just like it. Another victim testified that on the night of the robbery the stock of the shotgun used appeared to be "shiny" from having been recently varnished.
In Lively v. State, 178 Ga. 693, 695 (173 S.E. 836) this court said: "It appears without dispute that the crime was committed with a razor, and it would make no material difference whether or not the weapon it sought to identify was the particular razor with which the homicide *862 was committed. The identification was sufficient to authorize the jury to decide, under the evidence relative to identification, whether or not it was the identical weapon used by the defendant." Clements v. State, 226 Ga. 66 (1) (172 SE2d 600); Katzensky v. State, 228 Ga. 6 (3) (183 SE2d 749).
There is no merit in these enumerations of error.
2. The trial court charged the jury: "Alibi, as a defense, involves the impossibility of the accused's presence at the scene of the offense at the time of its commission. The range of evidence, in respect to time and place, must be such as to reasonably exclude the possibility of such presence. Evidence as to alibi should be considered by the jury in connection with all the other evidence in the case, and if, on considering the evidence as a whole, the jury should entertain a reasonable doubt as to the guilt of such accused, it would be their duty to acquit." (Emphasis supplied).
The appellants contend that the emphasized portion of this charge places the burden of proving their alibis on them. We do not agree.
The first two sentences of this charge are verbatim from Code § 38-122 and define alibi and the range of evidence in connection therewith. The charge does not place the burden of proving alibis on the appellants. It directs the jury that evidence of alibi should be considered by them in connection with all the other evidence in the case and that the State must prove guilt beyond a reasonable doubt.
The charge given in this case is different from the charges given in Harrison v. State, 83 Ga. 129 (3) (9 S.E. 542); Young v. State, 225 (3) (167 SE2d 586); Chaffin v. State, 225 Ga. 602 (170 SE2d 426); and Thornton v. State, 226 Ga. 837 (178 SE2d 193).
There is no merit in these enumerations of error.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331151/ | ALFRED L. PACK, Employee, Plaintiff,
v.
HAPPY RENTZ, INC., Employer, KEY RISK INSURANCE COMPANY, INC., Carrier, Defendants.
No. COA07-129
Court of Appeals of North Carolina.
Filed October 2, 2007
This case not for publication
Barron & Berry, L.L.P., by Vance Barron, Jr., for plaintiff-appellee.
Teague, Rotenstreich, Stanaland, Fox & Holt, LLP, by Paul A. Daniels, for defendants-appellants.
TYSON, Judge.
Happy Rentz, Inc. ("Happy Rentz") and Key Risk Insurance Company, Inc. (collectively, "defendants") appeal from the Full Commission of the North Carolina Industrial Commission's ("the Commission") opinion and award granting Alfred L. Pack ("plaintiff") permanent total disability benefits. We affirm.
I. Background
Plaintiff was employed by Happy Rentz as a delivery truck driver. On 17 May 1999, plaintiff suffered an accidental injury when a 400-pound pallet fell onto his back at work and injured his left shoulder and neck. Plaintiff was sixty-two-years-old at the time of the injury and has not returned to work as a truck driver for Happy Rentz or any other employer in any capacity.
Plaintiff filed a claim for workers' compensation benefits. On 7 June 1999, defendants accepted the compensability of plaintiff's claim pursuant to N.C. Gen. Stat. § 97-18(d). Defendants began paying $339.32 per week to plaintiff.
On 2 October 2004, plaintiff filed a Form 33 requesting his claim to be assigned for hearing. Plaintiff asserted he was entitled to permanent total disability benefits. Defendants responded that plaintiff was not entitled to permanent total disability benefits because: (1) authorized physicians had released him to work with restrictions; (2) Happy Rentz offered plaintiff a position within his restrictions as an assistant sanitizer, but he unjustifiably refused the position; and (3) plaintiff's disability, if any, is due to conditions unrelated to his work injuries.
After his injury, plaintiff initially presented to Dr. Phillips Carter ("Dr. Carter"), an orthopedic surgeon. Dr. Carter performed two surgical operations on plaintiff's left rotator cuff. Dr. Carter also performed two surgical manipulations on plaintiff's left shoulder under anesthesia. On 3 August 2000, Dr. Carter found plaintiff's left rotator cuff had reached maximum medical improvement and assigned him a twenty percent permanent partial disability rating. Dr. Carter noted, "I do not think [plaintiff] can go back-to [sic] . . . doing heavy work." On 20 November 2000, Dr. Carter increased plaintiff's permanent partial disability rating to thirty percent. On 16 March 2001, Dr. Carter referred plaintiff to another orthopedic surgeon, Dr. James E. Nitka ("Dr. Nitka").
On 4 May 2001, plaintiff presented to Dr. Nitka. Dr. Nitka performed two cervical fusion operations on plaintiff's neck for a left-sided disc herniation at the C4-C5 and C5-C6 vertebrae. Dr. Nitka released plaintiff from any further treatment for his neck on 26 September 2002. Plaintiff continued to experience difficulties with his neck and left shoulder and obtained approval from the Commission on 29 April 2004, for a change of treating physician to yet another orthopedic surgeon, Dr. Peter G. Dalldorf ("Dr. Dalldorf").
On 27 October 2003, Dr. Dalldorf concluded plaintiff had reached maximum medical improvement and would never be able to drive a truck again. Dr. Dalldorf also noted plaintiff's work restrictions are "some light duty restrictions which involve a 10-pound lift and no use of the affected left arm above the level of his waist."
On 6 February 2004, plaintiff's vocational rehabilitation counselor, Amanda Ratliffe ("Ratliffe"), arranged for William McClure ("McClure"), a therapist, to perform a work task analysis on a new position called assistant sanitizer created by Happy Rentz. McClure concluded that plaintiff could perform the job requirements of an assistant sanitizer within the work restrictions imposed by Dr. Dalldorf.
Another vocational rehabilitation counselor, Dr. Ann T. Neulicht, ("Dr. Neulicht"), conducted an investigation of plaintiff's capacity to obtain employment in the marketplace. Dr. Neulicht testified:
Based on my review of the medical records, my interviews with [plaintiff], and the results of the Functional Capacity Evaluation and information from his physicians regarding functional capacity and residual capacity as well as his age, education, and training, there's no evidence that he's capable of sustained competitive work in even routine repetitive occupations.
His functional capacity has been listed as sedentary in nature and his prior job as a truck driver would be medium, so he cannot return to a job at [sic] truck driver and was precluded from that by Dr. Dalldorf and at the recommendation of his physical therapist. So the question would be could he return to other sedentary occupations, and based on the Functional Capacity Evaluation as well as the results of the Raleigh Vocational Center assessment, he cannot.
(Emphasis supplied).
Plaintiff also suffered from other medical problems unrelated to his compensable injury that affected his ability to work at various times. On 17 March 2004, Dr. Dalldorf performed a left carpal tunnel release and removed plaintiff from work for a period of four to eight weeks. On 14 September 2004, plaintiff underwent a prostate operation and was removed from work for an additional eight weeks. On 7 July 2005, Dr. Dalldorf performed a right carpal tunnel release and removed plaintiff from work for a period of thirty days.
On 13 June 2005, the matter was heard before Deputy Commissioner George T. Glenn, II ("Deputy Commissioner Glenn"). On 12 December 2005, Deputy Commissioner Glenn entered an opinion and award that concluded plaintiff "is permanently and totally disabled in light of his medical restrictions, age, education, and experience and it would be futile for Plaintiff to engage in a job search henceforth." Defendants appealed to the Full Commission.
On 21 June 2006, the Full Commission reviewed the matter. Plaintiff was sixty-eight years old at the time of the hearing. On 8 September 2006, the Commission, without receiving further evidence, entered an opinion and award that concluded: (1) plaintiff sustained a compensable injury by accident; (2) plaintiff's refusal to accept the position offered by Happy Rentz was justified because the job duties were within his work restrictions; (3) plaintiff has been and remains incapable of earning wages with Happy Rentz or any other employer in light of his medical restrictions, age, limited education, and lack of employment experience in clerical or office work; and (4) plaintiff is entitled to permanent total disability benefits. Defendants appeal.
II. Issues
Defendants argue the Commission erred by concluding plaintiff is entitled to permanent total disability benefits because: (1) he could perform the position as an assistant sanitizer offered by Happy Rentz; (2) the position was consistent with his work restrictions; (3) he refused to return to work in a position that was within his restrictions; and (4) plaintiff is not permanently and totally disabled due to his compensable injury.
III. Standard of Review
Our Supreme Court has stated:
[W]hen reviewing Industrial Commission decisions, appellate courts must examine "whether any competent evidence supports the Commission's findings of fact and whether [those] findings . . . support the Commission's conclusions of law." The Commission's findings of fact are conclusive on appeal when supported by such competent evidence, "even though there [is] evidence that would support findings to the contrary."
McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (quoting Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000); Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)). "[T]he full Commission is the sole judge of the weight and credibility of the evidence[.]" Deese, 352 N.C. at 116, 530 S.E.2d at 553. The Commission's mixed findings of fact and conclusions of law and its conclusions of law applying the facts are fully reviewable de novo by this Court. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982); Cauble v. Soft-Play, Inc., 124 N.C. App. 526, 528, 477 S.E.2d 678, 679 (1996), disc. rev. denied, 345 N.C. 751, 485 S.E.2d 49 (1997).
IV. The Position Offered Plaintiff
Defendants argue the Commission erred by concluding plaintiff is entitled to permanent total disability benefits and asserts plaintiff was offered and could perform the position as an assistant sanitizer, and the position was consistent with his work restrictions imposed by Dr. Dalldorf. Within this broad argument, defendants specifically argue the Commission's findings of fact numbered 12, 17, 18, 19, and 21 are not supported by any competent evidence.
A. Finding of Fact Numbered 12
Defendants specifically assert the Commission's conclusion within the finding of fact numbered 12 that "Mr. McClure's Work Task Analysis erroneously concluded that plaintiff could perform the job of Assistant Sanitizer within Dr. Dalldorf's restrictions" is erroneous. We disagree.
Finding of fact numbered 12 states:
12. Mr. McClure was asked to perform an analysis to determine whether plaintiff could perform the Assistant Sanitizer job within the work restrictions assigned by Dr. Dalldorf. Mr. McClure testified that Ms. Ratliffe gave him a form dated October 27, 2003, signed by Dr. Dalldorf, which proved to be an incomplete statement of plaintiff's restrictions. The form stated that the work restrictions for plaintiff were "light duty10 lb. lift, waist level left arm." Mr. McClure was not given Dr. Dalldorf's more complete clinical note of October 27, 2003, which stated specifically that the work restrictions included "no use of the affected left arm above the level of the waist." Thus, Mr. McClure's Work Task Analysis erroneously concluded that plaintiff could perform the job of Assistant Sanitizer within Dr. Dalldorf's restrictions. Several of the job tasks were clearly described in Mr. McClure's report as being between waist level and shoulder level, such as the use of a linen rack which was 56 inches off the floor, vertical storage drawers which were 4 to 51 inches from the floor, and a hand-wiping station which was 34 to 56 inches from the floor. Mr. McClure stated in his report, "Based on the work tasks identified, all vertical heights reflect to be at or below shoulder level," "Reaching above shoulder level: Infrequent," and "Reaching below shoulder level: Occasional frequent." Moreover, certain routine tasks normally associated with work done at the facility had been excluded by defendant employer from the job description of Assistant Sanitizer given to Mr. McClure.
(Emphasis supplied).
Ratliffe arranged for McClure to perform a work task analysis on the assistant sanitizer position created by Happy Rentz. Ratliffe testified she sent the work restrictions imposed by Dr. Dalldorf to McClure, but she could not definitively state whether she furnished the restrictions to McClure before he did his evaluation of the assistant sanitizer position.
McClure also testified about the information Ratliffe had furnished him about Dr. Dalldorf's work restrictions:
Q. Well, sir, let me show you Plaintiff's Exhibit 4 [Dr. Dalldorf's clinical note dated 27 October 2003 containing plaintiff's work restrictions]. I don't find either of these documents in your file. Can you confirm that, please?
A. I have not seen this document.
McClure further testified about the information he was given about plaintiff's work restrictions:
Q. I would like you to find out what actual information was given to you about the work restrictions placed on [plaintiff] by Mr.-Dr. Dalldorf in February 2004.
A. Well, I referred in my recommendations in my report regarding Dr. Dalldorf's work restrictions of light duty, ten pounds lift, waist level left arm, so I was informed prior to the analysis that that was a restriction imposed by Dr. Dalldorf on [plaintiff].
Q. All right, sir. You're referring to your report which I have marked as Plaintiff's Exhibit 5, is that correct?
A. That is correct. Yes, sir.
Q. All right. Now I ask you, sir, isn't it correct that your report assumes that he could do work up to shoulder level?
A. With his hands. That's correct.
This testimony is competent evidence to support the Commission's finding of fact numbered 12 that:
Mr. McClure was not given Dr. Dalldorf's more complete clinical note of October 27, 2003, which stated specifically that the work restrictions included "no use of the affected left arm above the level of the waist." Thus, Mr. McClure's Work Task Analysis erroneously concluded that plaintiff could perform the job of Assistant Sanitizer within Dr. Dalldorf's restrictions.
McClure's work task analysis is further competent evidence to support the Commission's finding of fact numbered 12. The report omits Dr. Dalldorf's work restrictions which included "no use of the affected left arm above the level of the waist." The report states Dr. Dalldorf's work restrictions on plaintiff were only, "light duty, 10 lbs lift, waist level, left arm."
In describing the physical demands of the assistant sanitizer position, the report stated reaching above shoulder level is "[i]nfrequent" and reaching below shoulder level is "[o]ccasional/frequent." The report also listed the work surface heights contained in finding of fact numbered 12. McClure further testified about the work surface heights: Q. So the work heights were at or below shoulder level. That means that there were some work heights which were between waist level and shoulder level, isn't that correct?
A. That's correct.
The Commission's finding of fact numbered 12 is supported by competent evidence. The Commission's conclusion that "McClure's Work Task Analysis erroneously concluded that plaintiff could perform the job of Assistant Sanitizer within Dr. Dalldorf's restrictions" is supported by findings of fact based upon competent evidence that McClure did not take into account plaintiff's work restrictions, which included "no use of the affected left arm above the level of the waist." The Commission's findings of fact are "conclusive on appeal" when supported by "any competent evidence." McRae, 358 N.C. at 496, 597 S.E.2d at 700.
Also, "[t]he full Commission is the sole judge of the weight and credibility of the evidence[.]" Deese, 352 N.C. at 116, 530 S.E.2d at 553. Here, the Commission found McClure's conclusion that plaintiff could perform the requirements of the assistant sanitizer position within Dr. Dalldorf's work restrictions not credible. Id. This assignment of error is overruled.
B. Findings of Fact Numbered 17 through 19
Defendants argue findings of fact numbered 17 through 19 are not supported by competent evidence. Defendants assert the Commission erred by adopting Dr. Neulight's opinions set out in these findings of fact because her opinions were based on the mistaken belief that Dr. Dalldorf's restrictions applied to both arms. We disagree. Findings of fact numbered 17 through 19 state:
17. Plaintiff's prior work experience as a truck driver and as a substation electrician was at the medium level, a degree of exertion that he can no longer perform. The Raleigh Vocational Center tested plaintiff's ability to perform routine repetitive tasks at the sedentary exertion level, within Dr. Dalldorf's restrictions, and specifically with no use of the left arm above waist level. Testing revealed that plaintiff could only work at the low 26th percentile of competitive norms, which is deemed non-competitive according to Dr. Neulicht. In order to achieve that level of performance, it was noted that plaintiff had to take pain medication and the tester observed that due to his pain symptoms, plaintiff was moderately limited in his ability to remember and carry out detailed instructions and to perform at a consistent pace without an unreasonable number of rest periods. Plaintiff could not sustain a production or piece-rate pace of work.
18. Due to the combination of all these factors, Dr. Neulicht was of the opinion, and the Commission finds, that plaintiff is not capable of sustained competitive work in even routine, repetitive, and unskilled occupations.
19. Dr. Neulicht was of the opinion, and the Commission so finds, that the job of Assistant Sanitizer at defendant-employer was a job compiled of sedentary tasks extracted from the normal work routines of jobs that are at the medium exertion level, such as laundry duties and dish washing, which usually require lifting more than ten pounds, and silver-polishing, which is light in exertion but requires constant use of the hands. There was no credible evidence that such a job, as defined by defendant-employer, exists elsewhere in the competitive job market, since dish washing jobs require loading, unloading, and lifting dishes; laundry jobs require lifting laundry to and from a washer to a dryer; and silver-polishing jobs require a competitive pace of work performance with dexterity and a firm grasp.
Here, defendants do not argue the above findings of fact are not supported by competent evidence. These findings are supported by Dr. Neulicht's testimony as noted above. Instead, defendants assert Dr. Neulicht's findings are "not credible." Again, "[t]he full Commission is the sole judge of the weight and credibility of the evidence[.]" Deese, 352 N.C. at 116, 530 S.E.2d at 553. "[T]he Commission does not have to explain its findings of fact by attempting to distinguish which evidence or witnesses it finds credible." Id. This assignment of error is overruled.
C. Finding of Fact Numbered 21
Defendants argue finding of fact numbered 21 is not supported by competent evidence. Defendants assert plaintiff's refusal to accept the assistant sanitizer position with Happy Rentz was not justified. We disagree.
Finding of fact numbered 21 states:
21. Although the job of Assistant Sanitizer was specially designed by defendant-employer for plaintiff, another employee filled the position for defendant-employer after plaintiff turned down the job in March 2004. Thus, the job is not make work. However, the Commission finds that the Assistant Sanitizer position was not within his restrictions and not suitable for plaintiff, and, therefore, his refusal to perform the job was justified.
Dr. Dalldorf noted plaintiff's work restrictions are, "some light duty restrictions which involve a 10-pound lift and no use of the affected left arm above the level of his waist." (Emphasis supplied). As shown above, McClure's Work Task Analysis clearly shows the assistant sanitizer position offered by Happy Rentz involves plaintiff using his left arm above his waist and shoulder. N.C. Gen. Stat. § 97-32 (2005) provides, "[i]f an injured employee refuses employment procured for him suitable to his capacity he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified." Here, the Commission found and concluded plaintiff was justified in refusing to accept the assistant sanitizer position offered by Happy Rentz because the duties of the position did not comport with his work restrictions set forth by Dr. Dalldorf. See Oliver v. Lane Co., 143 N.C. App. 167, 171, 544 S.E.2d 606, 608 (2001) (The plaintiff was justified in refusing the employer's offered job, which consisted of highly repetitive motion involving the hand and wrist and was in direct conflict with her doctor's recommendation.).
The Commission's finding of fact numbered 21 is supported by competent evidence. The Commission's findings of fact are "conclusive on appeal" when supported by "any competent evidence." McRae, 358 N.C. at 496, 597 S.E.2d at 700. The Commission's conclusion that plaintiff justifiably refused to accept the position offered by Happy Rentz is supported by its finding of fact. This assignment of error is overruled.
V. Permanent Total Disability
Defendants argue plaintiff is not permanently and totally disabled due to his compensable injury. Defendants assert the Commission's findings of fact do not support its conclusion of law that plaintiff is entitled to permanent total disability benefits. We disagree. Under the North Carolina's Workers' Compensation Act, "[t]he term `disability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C. Gen. Stat. § 97-2(9) (2005) (emphasis supplied). "In order to obtain compensation under the Workers' Compensation Act, the claimant has the burden of proving the existence of his disability and its extent." Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986).
Our Supreme Court has stated:
[I]n order to support a conclusion of disability, the Commission must find: (1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual's incapacity to earn was caused by plaintiff's injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982) (internal citation omitted).
In Russell v. Lowes Product Distribution, this Court set out four separate and distinct ways a plaintiff can carry his burden to prove disability:
The burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment. The employee may meet this burden in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.
108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (emphasis supplied) (internal citations omitted).
The Commission found as fact:
16. Dr. Neulicht's opinion was based on plaintiff's age, education, training and other factors. Dr. Neulicht found that plaintiff has a very limited education, having left school at age 16 when he was in the seventh grade. Further, in April 2004, Ms. Ratliffe requested that plaintiff attend Guilford Technical Community College ("GTCC") to obtain his G.E.D. Plaintiff was given placement tests at GTCC in May 2004, which placed him at grade two in reading, at less than grade one in mathematics, and less than grade one in language arts. Dr. Neulicht found that plaintiff is functionally illiterate and has no clerical skills.
17. Plaintiff's prior work experience as a truck driver and as a substation electrician was at the medium level, a degree of exertion that he can no longer perform. The Raleigh Vocational Center tested plaintiffs ability to perform routine repetitive tasks at the sedentary exertion level, within Dr. Dalldorf's restrictions, and specifically with no use of the left arm above waist level. Testing revealed that plaintiff could only work at the low 26th percentile of competitive norms, which is deemed non-competitive according to Dr. Neulicht. In order to achieve that level of performance, it was noted that plaintiff had to take pain medication and the tester observed that due to his pain symptoms, plaintiff was moderately limited in his ability to remember and carry out detailed instructions and to perform at a consistent pace without an unreasonable number of rest periods. Plaintiff could not sustain a production or piece-rate pace of work.
18. Due to the combination of all these factors, Dr. Neulicht was of the opinion, and the Commission finds, that plaintiff is not capable of sustained competitive work in even routine, repetitive, and unskilled occupations.
(Emphasis supplied).
The Commission concluded plaintiff was entitled to permanent total disability under the third Russell factor:
3. The greater weight of the medical evidence indicates that plaintiff is currently unable to work and will continue to be unable to work in the competitive labor market in the future. Vocational rehabilitation professionals have been unsuccessful in any attempt to find suitable work for plaintiff, other than the position offered by defendant-employer which was not within plaintiff's restrictions and therefore not suitable employment. Therefore, in light of [plaintiff's] medical restrictions, advanced age, very limited education, and lack of employment experience in clerical or office work, plaintiff has been and remains incapable of earning wages with defendant-employer or in any other employment since May 17, 1999.
(Emphasis supplied).
Plaintiff carried his burden to prove he is entitled to permanent total disability through "the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment." Russell, 108 N.C. App. at 765, 425 S.E.2d at 457. The Commission's findings of fact support the conclusion of law that plaintiff is entitled to permanent total disability compensation benefits. This assignment of error is overruled.
VI. Conclusion
The duties of the assistant sanitizer position offered by Happy Rentz were not within Dr. Dalldorf's work restrictions for plaintiff. Plaintiff justifiably refused to accept the position. Oliver, 143 N.C. App. at 171, 544 S.E.2d at 608. The Commission's findings of fact are supported by competent evidence and the findings of fact support the conclusion of law plaintiff is entitled to permanent total disability compensation benefits. McRae, 358 N.C. at 496, 597 S.E.2d at 700. The Commission's opinion and award is affirmed.
Affirmed.
Judges McGEE and ELMORE concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331150/ | 258 S.C. 272 (1972)
188 S.E.2d 374
John W. LINDSAY, as Chief Insurance Commissioner of South Carolina, Respondent,
v.
SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant.
19405
Supreme Court of South Carolina.
April 24, 1972.
*273 Messrs. Roberts, Jennings & Thomas, of Columbia, for Appellant.
*274 Messrs. Daniel R. McLeod, Atty. Gen., and Glen E. Craig, of Columbia, for Respondent.
Messrs. Roberts, Jennings & Thomas, of Columbia, for Appellant, in Reply.
April 24, 1972.
Per Curiam:
We are convinced that the order of the Circuit Court, as reported herewith, correctly disposes of the issues raised by the appellant. The exceptions are overruled and the judgment below is,
Affirmed.
ORDER OF JUDGE GRIMBALL
This action was instituted by Plaintiff on January 18, 1971, pursuant to Sections 10-2001 et seq. of the Code, for the purpose of obtaining a declaratory judgment regarding a question in actual controversy between Plaintiff and Defendant. The facts are not in dispute.
Plaintiff has the duty of collecting license fees imposed on foreign insurers by Sections 37-121 et seq. of the Code. Defendant is a foreign insurer organized under the laws of Mississippi which is licensed to transact insurance in this State. Section 37-124 imposes an additional and graded license fee of 2% of net premium income from the State. Section 37-125 provides that such fee shall be reduced if the insurer makes certain investments in the securities named in Section 37-123, to wit: notes or bonds of this State or of counties or municipalities of this State or subdivisions *275 thereof, etc. The amount of the reduction depends upon the amount of such investments in relation to the insurer's net premium income from the State 25% of premium income, reduction is 1/4%; 50% of premium income, reduction is 1/2%; 75% of premium income, reduction is 3/4%; and 100% of premium income, reduction is 1%. The amount of Defendant's investments in such securities exceeds the amount of its annual net premium income from the State. Section 37-128 imposes a graduated license fee of 1% of net premium income from the State which cannot be reduced. Defendant has paid license fees to Plaintiff in the amount of 2% of its net premium income from the State, instead of 3% of such income.
The evidence discloses that Defendant has made substantial investments in States which do not have an investment credit statute such as Sections 37-123 and 37-125 for example, in Arkansas which imposes a tax of only 2%. Defendant acknowledges that good will and diversification enter into the decision of making investments and that diversification requires Defendant to make investments in States in which it does not operate. Therefore it seems clear that the possibility of license tax investment credit is only one of the factors considered by an insurer in determining which investments should be made by the insurer.
There are insurers chartered by South Carolina which have agencies in Mississippi. Mississippi imposes a tax on a South Carolina insurer of 3% of its premium income from Mississippi which cannot be reduced as a result of its investments in Mississippi notes, bonds, etc. Additionally, Mississippi imposes a tax of only 1 1/2% on Mississippi insurers and it gives its insurers certain credit for retaliatory taxes imposed on them by other States. Sections 9537-01 and 9537-04 of the Mississippi Statutes.
Section 37-132 of the Code provides as follows:
"§ 37-132. Increase of fees, etc., to those charged by other states. Whenever the laws of any other state of the United *276 States shall require of insurance companies chartered by this State and having agencies in such other state, or of the agents thereof, any deposit of securities in such state for the protection of policyholders or otherwise or any payment of penalties, certificates of authority, license fees or otherwise, greater than the amount required for such purposes from similar companies of other states by the then existing laws of this State, all such similar companies of such states establishing or having theretofore established an agency or agencies in this State shall make the same deposit for a like purpose with the Commissioner and pay to the Commissioner, for penalties, certificates of authority, license fees, filing fees or any other fees, an amount equal to the amount of such charges imposed by the laws of such state upon companies of this State and the agencies thereof."
Plaintiff's position is that Defendant is required by Section 37-132 to pay an additional amount to Plaintiff, to wit: 1% of its net premium income from South Carolina, so that Defendant will pay South Carolina the same amount which a South Carolina insurer is required to pay Mississippi, to wit: 3% of its net premium income from Missississippi. Defendant's position is that Section 37-132 is not applicable here and that to give Section 37-132 the interpretation sought by Plaintiff would defeat the legislative intention of Sections 37-123 and 37-125 to encourage foreign insurers to invest in South Carolina securities or property.
Section 37-132 is usually referred to as the retaliatory law. It was derived from Act No. 793 of 1934 which is entitled as follows:
"An Act to Require Insurance Companies Organized Under the Laws of the States Other Than South Carolina to Pay to the State of South Carolina Not Less than the Same Amount for Penalties, Certificates of Authority, License Fees, Filing Fees or Otherwise as is Required by Such State to be Paid in Such State by Insurance Companies Incorporated Under the Laws of South Carolina."
*277 It is "proper to consider the title or caption of an act in aid of construction to show the intent of the legislature." University of South Carolina v. Elliott, 248 S.C. 218, 221, 149 S.E. (2d) 433, 434 (1966). The terminology in Section 37-132 quoted above is identical to the terminology in Act No. 793 of 1934.
Our Supreme Court has not considered the nature of Section 37-132. It is similar to retaliatory laws of other States. One of the more recent decisions involving retaliatory laws is Republic Insurance Company v. Commissioner of Taxation, 272 Minn. 325, 329, 138 N.W. (2d) 776, 779 (1965).
There the Court stated as follows:
"Certain preliminary observations may be made with reference to the general subject of retaliatory insurance laws. It may be said generally that states have enacted these laws to protect their own insurance companies doing business in other states. The theory of the state is that foreign insurance companies doing business in the taxing state should be subject to the same burdens as domestic insurance companies doing business in any foreign state. These statutes are primarily regulatory, the taxing feature being regarded as incidental. In some instances, statutes of various states so compliment each other as to achieve an equalization on the basis of reciprocity. But in the absence of such an accommodation, the application of retaliatory sanctions results."
It has been held that retaliatory laws are penal in nature and therefore should be strictly construed. Nevertheless, the law should not be construed so as to defeat its purpose.
Sections 37-123 and 37-125 were recently considered in State v. Life Insurance Company of Georgia, 254 S.C. 286, 175 S.E. (2d) 203 (1970). In my view Sections 37-123 and 37-125 are subject to the provisions of Section 37-132. If similar investment credit is authorized by the foreign State, then South Carolina could not retaliate since the taxes imposed by the foreign State on a South *278 Carolina insurer would not be greater than the taxes imposed by South Carolina on the foreign insurer. If similar investment credit is not authorized by the foreign State, then I feel that South Carolina must retaliate since the taxes imposed by the foreign State on a South Carolina insurer are greater than the taxes imposed by South Carolina on the foreign insurer.
The Texas retaliatory law has a special provision, quoted in Republic, supra, which recognizes a reduction such as is authorized under Sections 37-123 and 37-125. This special provision prevents retaliation in a case such as is involved here. It is quoted in the Republic case as follows:
"`* * * wherever under any law of this State the basic rate of taxation of any insurance company of another state * * * is reduced if any such insurance company has made investments in Texas securities then in computing the aggregate Texas premium tax burdens of any such insurance company of any other state * * * each shall for purpose of comparison with the premium tax laws of their home states be considered to have assumed and paid an aggregate premium tax burden equal to the basic rate * * *.' (Italics supplied.)"
Had the Legislature intended the result authorized by the Texas special provision quoted above it could have said so very easily by inserting a similar provision in Section 37-132. I feel the Court should not read such a provision into Section 37-132.
In my view the question here is not whether it would be fair and equitable to conclude that Defendant has assumed and paid an aggregate premium tax burden equal to the basic rate 3% , in view of its ownership of South Carolina securities, but whether such conclusion is currently authorized by Section 37-132. I feel that it is not so authorized.
Defendant argues, in substance, that Plaintiff's position would defeat the purpose of Sections 37-123 and 37-125, to wit: to encourage foreign insurers to invest in South *279 Carolina securities or property. The evidence discloses two significant facts. First, that 82% of the South Carolina investments of foreign and alien property, casualty and allied insurers have been made by insurers domiciled in States with a general premium tax rate applicable to foreign casuality insurers of only 2%. Therefore South Carolina could not retaliate against foreign casualty insurers domiciled in such States with respect to general premium taxes since their States only require South Carolina casualty insurers to pay a general premium tax of 2% which is not greater than the general premium tax that South Carolina requires of such foreign casualty insurers. Second, that an additional 14% of such investments have been made by insurers domiciled in States with a general premium tax rate applicable to foreign casualty insurers of only 2.25% or 2.50%. Therefore South Carolina could not retaliate against foreign casualty insurers domiciled in such States with respect to general premium taxes except to the extent that one of such insurers had made South Carolina investments which reduced its general South Carolina premium tax rate below 2.50% or 2.25%. I think that this evidence makes it clear that Plaintiff's position would not defeat the legislative intention of encouraging foreign insurers to invest in South Carolina securities or property.
Defendant has called my attention to the decision in Williams v. Thomas Jefferson Insurance Company, 215 Tenn. 356, 385 S.W. (2d) 908 (1965). There the foreign insurer invested in certain Tennessee securities. The Tennessee statute provided for a credit upon the foreign insurer's gross premium tax for its investments in Tennessee property and securities. The foreign insurer's domiciliary State did not give such a credit to a Tennessee insurer doing business therein. The Tennessee Court held that retaliation was not required.
A Review of the Thomas Jefferson decision will disclose that there are certain differences between Tennessee and South Carolina. First, the Tennessee Court gave considerable *280 weight to the fact that the Tennessee investment and retaliatory laws were enacted in 1953 in the same Act. This is not the case here. While Sections 37-123, 37-125 and 37-132 were included in Act No. 232 of 1947, like other insurance statutes in force at that time when the South Carolina Insurance Law was reenacted, they originated under entirely different circumstances. Sections 37-123 and 37-125, the investment statutes, first appeared in Section 14 of Act No. 3 of 1909, Life Insurance Company of Georgia, supra. Section 37-132, the retaliatory law, first appeared in Act. No. 793 of 1934. Second, the Tennessee Court, in discussing the Tennessee investment statute, stated "This statute does not specify a lower tax rate; does not provide a tax exemption of any kind;." Section 37-125 does specify a lower rate; and it does provide a tax exemption. Our Supreme Court has stated that it is a partial exemption statute, Life Insurance Company of Georgia, supra. Third, the Tennessee Court gave considerable weight to the fact that the foreign insurer's investments in Tennessee securities brought in more taxes to the State. This is not the case here. None of the securities named in Section 37-123 are subject to property taxes. The interest or income from State, county, municipal and subdivision obligations is not subject to State income taxes and foreign insurers are exempt from the payment of State income taxes. Sections 65-226(2) and 65-253(4) of the Code. Additional taxes will not accrue to the State as a result of a foreign insurer's investments in the securities named in Section 37-123. I feel that the Thomas Jefferson decision is not helpful here in view of these differences between Tennessee and South Carolina.
The Texas investment statute, like Sections 37-123 and 37-125, is a partial exemption statute, Life Insurance Company of Georgia, supra; however, as earlier noted, the Texas retaliatory law has a special provision which prevents retaliation in a case such as is involved here. Section 37-132 does not contain a similar provision.
*281 After carefully considering this matter I feel that Defendant is required by Section 37-132 to pay an additional amount to Plaintiff so that it will pay South Carolina the same amount which a South Carolina insurer is required to pay Mississippi.
BRAILSFORD, Justice (dissenting):
Being convinced that the circuit court misconstrued the statutes involved, I respectfully dissent from the proposal that its judgment should be adopted as the judgment of this Court.
The legislative purpose in enacting the retaliatory statute, Section 37-132, Code of 1962, was to benefit South Carolina insurance companies doing business in other states by inducing such states to impose no greater burdens on South Carolina companies doing business within their borders than South Carolina imposes upon foreign insurers doing business here. Such retaliatory statutes have been enacted in many states with this objective in view. 43 Am. Jur. (2d), Insurance, Sec. 85 (1969).
On the other hand, the legislative purpose in enacting the investment credit statutes, Sections 37-123 and 37-125, was to provide an incentive to foreign insurance companies doing business in this State to invest substantially in South Carolina securities and property. It is generally believed that this credit allowance has contributed significantly to the very favorable position which South Carolina securities enjoy on the bond market.
In my judgment, the construction of these statutes adopted by the circuit court frustrates the purpose of the legislature in enacting the investment statutes insofar as Mississippi insurance companies doing business in this State are concerned, without any correlative furtherance of the policy expressed by the retaliatory statute.
The burden imposed upon South Carolina insurance companies in Mississippi is exactly the same as that imposed *282 upon Mississippi companies in this State, i.e., a tax or license fee equal to 3% of the premiums collected within the State. This meets the equality of "license fees" demanded by the retaliatory statute. That South Carolina sees fit, in furtherance of an entirely different policy, to allow a Mississippi company the opportunity to earn a credit against this tax by making South Carolina investments does not result in inequality within the meaning of the retaliatory statute. Surely it is not South Carolina policy to induce all states to allow investment tax credit to foreign insurance companies equivalent to that allowed here. If this should come to pass, the competitive advantage which we now enjoy in marketing bonds would inevitably vanish.
I would reverse the judgment appealed from.
BUSSEY, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331169/ | STATE OF NORTH CAROLINA
v.
DENA INEZ MINTON.
No. COA06-1566
Court of Appeals of North Carolina.
Filed October 2, 2007
This case not for publication
Attorney General Roy Cooper, by Special Deputy Attorney General W. Dale Talbert, for the State.
Kevin P. Bradley for Defendant.
STEPHENS, Judge.
Defendant appeals from the trial court's judgments sentencing her to a minimum of 269 months in prison after a jury convicted her of one count of attempted first-degree murder and one count of assault with a deadly weapon with intent to kill inflicting serious injury . We find no error.
A lengthy recitation of the evidence presented at trial is not necessary for an understanding of the sole question raised on appeal. Defendant is one of four children of Fred Linny Minton, who died on 18 August 2004 . A dispute arose among the siblings about the handling of Mr. Minton's funeral arrangements. During a gathering of Mr. Minton's friends and relatives on 20 August 2004, Defendant shot her brother four times . At trial, Defendant admitted intentionally shooting her brother, but testified that she did so in self-defense after her brother assaulted her .
The sole question presented for our review is whether the trial court's instruction to the jury on the offense of attempted first-degree murder relieved the State of its burden to prove an element of the crime beyond a reasonable doubt.
The State has the burden of proving each element of a criminal offense beyond a reasonable doubt. State v. Smith, 360 N.C. 341, 626 S.E.2d 258 (2006). "The elements of attempted first-degree murder are: (1) a specific intent to kill another; (2) an overt act calculated to carry out that intent, which goes beyond mere preparation; (3) malice, premeditation, and deliberation accompanying the act; and (4) failure to complete the intended killing." State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004), cert. denied, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). When error in the trial court's charge to the jury is alleged,
this Court reviews jury instructions contextually and in their entirety. If the instructions "present[] the law of the case in such a manner as to leave no reasonable cause to believe the jury was misled or misinformed," then they will be held to be sufficient. The appealing party must demonstrate that the error in the instructions was likely to mislead the jury.
State v. Crow, 175 N.C. App. 119, 127, 623 S.E.2d 68, 73 (2005) (internal citations omitted),disc. review denied, 360 N.C. 485, 632 S.E.2d 495 (2006).
The trial court instructed the jury on the element of malice as follows: If the State proves beyond a reasonable doubt or it is admitted that the Defendant intentionally inflicted a wound upon the victim with a deadly weapon, you may infer, first, that the Defendant acted unlawfully and, second, that it was done with malice, but you're not compelled to do so. You may consider this, along with all other facts and circumstances, in determining whether the Defendant acted unlawfully and with malice. . . .
(Emphasis added). Defendant contends that the inclusion of the words "or it is admitted" relieved the State of its burden to prove beyond a reasonable doubt that Defendant acted with malice. Specifically, Defendant argues that the trial court's jury instructions "allow[ed] the jury to infer malice from [her] admissions made only in the context of her claim of self-defense. . . [and] permitted the jury to conclude that malice was established upon their rejection of the claim of self-defense." We are unpersuaded.
Initially, we note that our Supreme Court has held that "[t]he instruction, `or it is admitted,' should not be given in a case where the defendant does not in open court admit to an intentional shooting." State v. McCoy, 303 N.C. 1, 29, 277 S.E.2d 515, 535 (1981); see also State v. Shuford, 337 N.C. 641, 447 S.E.2d 742 (1994) (finding no error in trial court's instruction which included "or it is admitted" where defendant, charged with murder, admitted shooting the victim, but claimed he shot in self-defense). In the case at bar, Defendant admitted in open court that she intentionally shot her brother. Moreover, viewing the instructions contextually and in their entirety, the instructions presented the law of the case in such a manner as to leave no reasonable cause to believe the jury was misled or misinformed. The court began its charge by instructing the jury that "[i]n order to obtain a conviction, the State must prove to you that the Defendant is guilty beyond a reasonable doubt." The court then defined reasonable doubt. In charging the jury on attempted first-degree murder and on self-defense as a defense to that crime, the trial court followed the language of the pattern jury instruction. N.C.P.I. Crim. 206.17A (2003). Specifically, the trial court charged, inter alia,
in order for you to find the Defendant guilty of attempted first-degree murder, the State must prove beyond a reasonable doubt among other things, the State must prove that the Defendant did not act in self-defense. If the State fails to prove that the Defendant did not act in self-defense, then you must find the Defendant not guilty [of attempted first-degree murder].
The trial court concluded its attempted first-degree murder instruction as follows:
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant intentionally, and not in self-defense, attempted to kill the victim . . . with a deadly weapon and perform an act or acts designed to bring this about but which fell short of the completed crime and which, in the ordinary and likely course of things, would have proximately resulted in the death of [the victim] had she not been stopped or prevented from completing her apparent course of action, and that in performing this act the Defendant acted with malice, with premeditation and deliberation, then it would be your duty to return a verdict of guilty of attempted first-degree murder . . . .
If you do not so find or if you have a reasonable doubt as to one or more of these things, then it would be your duty to return a verdict of not guilty as to [the charge].
We presume the jury followed the trial court's instructions. State v. Miller, 357 N.C. 583, 588 S.E.2d 857 (2003), cert. denied, 542 U.S. 941, 159 L. Ed. 2d 819 (2004). We conclude the instructions as given were not likely to mislead the jury.
We need not address Defendant's contention that the trial court somehow "linked" its instruction on self-defense to the crime of attempted first-degree murder with its instruction on self-defense to the crime of assault with a deadly weapon with intent to kill inflicting serious injury . Defendant neither objected at trial nor assigned error on appeal to either self-defense instruction, and Defendant does not contend that either instruction amounted to plain error. N.C. R. App. P. 10.
NO ERROR.
Judges McGEE and SMITH concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331160/ | 650 S.E.2d 612 (2007)
STATE of North Carolina
v.
Floyd Jean DAVIS.
No. COA06-1558.
Court of Appeals of North Carolina.
October 2, 2007.
Attorney General Roy Cooper, by Assistant Attorney General Laura J. Gendy, for the State.
William D. Spence, for defendant-appellant.
WYNN, Judge.
A defendant may waive the general right to be present at his trial through his voluntary and unexplained absence from court.[1] Here, Defendant Floyd Jean Davis contends the trial court erred by allowing his trial to proceed in absentia. Because the record shows that Defendant had knowledge of the date and time that his trial reconvened and failed to appear or provide any reasonable excuse for his absence, we affirm the trial court's decision to move forward with the proceedings without Defendant.
On 26 January 2006, Mitchell County Deputy Sheriff Frank Catalano went to Defendant's home to serve an arrest warrant on him. Pursuant to a consent search of Defendant's home, Deputy Catalano found a pen barrel, scale, and piece of folded-up aluminum foil inside a plastic grocery bag in a kitchen drawer. A charred residue on the aluminum foil was later determined to be a legal substance often converted into methamphetamine; additionally, the inside of the pen barrel was found to be coated with methamphetamine hydrochloride, a controlled substance. After being advised of his legal rights, Defendant stated that the methamphetamine found was his and that he used the drug to relieve back pain.
Defendant's trial for felony possession of methamphetamine, misdemeanor possession of drug paraphernalia, and habitual felon status began on 20 June 2006; he and his defense counsel were both present, and the jury was selected that day. When court reconvened the following morning, on 21 June 2006, Defendant was absent because he had gone to Spruce Pine Community Hospital with heart problems and was subsequently transferred by ambulance to Mission Memorial Hospital in Asheville due to chest pains and to have an "appropriate workup by the cardiologist." Following testimony by a doctor who had treated Defendant, the trial court continued the case until 30 June 2006.
When court reconvened again on 30 June 2006, Defendant was not present. Defense counsel informed the trial court that he did not know where his client was, and that he had spoken to Defendant the previous afternoon and instructed him to be at court that morning. Additionally, defense counsel told the trial court that he had no medical records showing that Defendant was unable to be present at court that morning. The clerk likewise stated that Defendant had been informed and was aware of his court date and time. Neither defense counsel nor the clerk's office had received any message from Defendant as to why he was not present in court on 30 June 2006.
After denying defense counsel's motion for mistrial based on Defendant's absence, the trial court instructed the State to move forward with presentation of its evidence to the jury. The State offered testimony from two witnesses: a Special Agent Senior Forensic Chemist with the North Carolina State Bureau of Investigation (SBI), as to the residues on the aluminum foil and the inside of the pen barrel, respectively; and Deputy Catalano, as to his search of Defendant's home *615 and Defendant's voluntary statement after his arrest. Defendant did not offer any evidence, and defense counsel moved for a dismissal of the two charges for insufficiency of evidence at both the close of the State's evidence and the close of all evidence. After denying the motions to dismiss, the trial court moved forward with the charge conference, the prosecutor and defense counsel offered closing arguments, and the trial court gave his jury charge.
According to the transcript, the jury returned guilty verdicts on both charges after ten minutes of deliberation. With Defendant still absent from the courtroom, the trial court moved forward with the habitual felon phase of the trial. The State then offered an additional witness, a legal assistant with the district attorney's office, who testified as to Defendant's criminal record and prior felony convictions. Defendant offered no evidence. After an additional ten minutes of deliberation, the jury returned with a verdict of guilty of habitual felon status.
The trial court had previously entered an order of arrest against Defendant because he was not present when his trial reconvened on 30 June 2006. At the conclusion of the trial, the trial court ordered that, after Defendant had been located and arrested, he be held without bond until sentencing could occur. On 14 July 2006, the trial court entered judgment on the jury verdicts against Defendant and sentenced him as an habitual felon in the presumptive range of 116 to 149 months' imprisonment on the consolidated charges of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia. At sentencing, Defendant informed the trial court that he had been back in the hospital for his heart on 30 June 2006, the date of his trial, and his wife had failed to telephone defense counsel as she had promised. Defendant offered no written documentation in support of his statement that he had been in the hospital.
Defendant now appeals, arguing that the trial court erred by (I) denying his motion for a mistrial; (II) denying his motion to dismiss both charges at the close of evidence; (III) arraigning him as an habitual felon in open court and allowing the State to move forward immediately with habitual felon proceedings.
I.
Defendant first argues that the trial court erred by denying his motion for a mistrial based on his absence from the courtroom during his trial. We disagree.
Under North Carolina law, a trial court is required to declare a mistrial upon a defendant's motion "if there occurs during the trial an error or legal defect in the proceedings, . . ., resulting in substantial and irreparable prejudice to the defendant's case." N.C. Gen.Stat. § 15A-1061 (2005). Nevertheless, the decision to grant a mistrial is within the sound discretion of the trial court, and a mistrial is "appropriate only when there are such serious improprieties as would make it impossible to achieve a fair and impartial verdict under the law." State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 403 (1991) (citation omitted). The trial court's decision will be given "great deference since he is in a far better position than an appellate court to determine whether the degree of influence on the jury was irreparable." State v. Williamson, 333 N.C. 128, 138, 423 S.E.2d 766, 772 (1992) (citation omitted). This Court will find an abuse of discretion only where a trial court's ruling "is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005), cert. denied, 547 U.S. 1073, 126 S. Ct. 1773, 164 L. Ed. 2d 523 (2006).
Although our state Constitution provides that, "[i]n all criminal prosecutions, every person charged with crime has the right . . . to confront the accusers and witnesses with other testimony," N.C. Const. art. I, § 23, the right of a defendant to be present at his own trial is not absolute. See State v. Richardson, 330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991) ("In noncapital felony trials, this right to confrontation is purely personal in nature and may be waived by a defendant."). Significantly, "[a] defendant's voluntary and unexplained absence from court subsequent to the commencement of trial constitutes *616 such a waiver. Once trial has commenced, the burden is on the defendant to explain his or her absence; if this burden is not met, waiver is to be inferred." Id. (internal citations omitted).
Here, Defendant's trial commenced on 20 June 2006, when a jury was impaneled and opening arguments were made. Defendant was not present when his trial resumed on 21 June; after hearing an explanation from defense counsel and testimony from a doctor who had treated Defendant, the trial court continued the case until 30 June, to give Defendant an opportunity for further treatment and recovery. Nevertheless, on 30 June, Defendant was not present at the time his trial was scheduled to resume.
After waiting for over forty-five minutes, the trial court ascertained that Defendant was aware of the date and time that his trial was scheduled to resume, and that he had failed to provide any reason or notice to defense counsel or the clerk's office as to his failure to appear. The trial court then offered a full restatement of the facts related to the earlier session of the trial, Defendant's medically excused absence on 21 June 2006, and the continuance, and concluded:
Based on that, the Court concludes that the Court has a right to go forward with the trial of this case having been shown no good reason as to why the defendant has not appeared and based on the foregoing findings and conclusions the Court is going to proceed with the trial of this matter in the absence of the defendant. . . . So [defense counsel] will be proceeding on behalf of his client in his client's absence in the defense of this case.
These facts support the trial court's determination that Defendant waived his right to appear, and we see no abuse of discretion in the trial court's decision to deny defense counsel's motion for a mistrial. Accordingly, we find no merit in these assignments of error.
II.
Next, Defendant contends the trial court erred by denying his motions to dismiss the charges of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia at the close of the State's evidence and again at the close of all evidence on the grounds that the evidence was insufficient to establish each element of the crimes and Defendant's identity as the perpetrator. We disagree.
To survive a motion to dismiss, the State must have presented "substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation and quotations omitted), cert. denied, 543 U.S. 1156, 125 S. Ct. 1301, 161 L. Ed. 2d 122 (2005). "Substantial evidence" is "relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion." Id. (citations omitted). In considering a motion to dismiss by the defense, such evidence "must be taken in the light most favorable to the state. . . . [which] is entitled to all reasonable inferences that may be drawn from the evidence." State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986).
North Carolina law makes it illegal for any person to possess a controlled substance. N.C. Gen.Stat. § 90-95(a)(3) (2005). Felonious possession of a controlled substance has "two essential elements. The substance must be possessed, and the substance must be `knowingly' possessed." State v. Rogers, 32 N.C.App. 274, 278, 231 S.E.2d 919, 922 (1977). Moreover, "[w]hen such materials are found on the premises under the control of the accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession." State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). Even a "residue quantity" of a controlled substance is sufficient to convict a defendant of felonious possession of the controlled substance. State v. Williams, 149 N.C.App. 795, 798-99, 561 S.E.2d 925, 927, disc. review denied, 355 N.C. 757, 566 S.E.2d 481, cert. denied, 537 U.S. 1035, 123 S. Ct. 553, 154 L. Ed. 2d 455 (2002).
Likewise, under North Carolina law, "[i]t is unlawful for any person to knowingly use, *617 or to possess with intent to use, drug paraphernalia . . . to inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess." N.C. Gen.Stat. § 90-113.22(a) (2005); see also State v. Hedgecoe, 106 N.C.App. 157, 164, 415 S.E.2d 777, 781 (1992) (holding that, to sustain a conviction under N.C. Gen.Stat. § 90-113.22, the State must prove that the defendant possessed drug paraphernalia with the intent "to use [it] in connection with controlled substances").
In the instant case, the State offered testimony from an SBI agent that the residue inside the pen barrel found at Defendant's home was methamphetamine, and that the residue on the aluminum foil was a legal, uncontrolled substance that is often converted into methamphetamine. Deputy Catalano also testified that he found the aluminum foil and the pen barrel inside a kitchen drawer in Defendant's home. Additionally, Deputy Catalano recounted Defendant's voluntary statement to police that:
On today's date officer came to serve his warrant on me. I come out on my own. They found meth in my house. I told them it was mine. I use it I use for my for my pain because my back it was broke at work. The pain med they give me don't work. The meth does. . . . They found it in my kitchen drawer.
(Emphasis added). We find this evidence to be sufficient as a matter of law to withstand a motion to dismiss the charges of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia. This assignment of error is rejected.
III.
Finally, Defendant argues that the trial court erred by arraigning him as an habitual felon pursuant to North Carolina General Statutes § 15A-928 in open court, and by moving forward immediately with habitual felon proceedings following Defendant's convictions, while he was still not present in the courtroom. Defendant essentially contends the trial court was without subject matter jurisdiction to proceed with the habitual felon proceedings. We disagree.
Habitual felon status is acquired when any person has been convicted of or pled guilty to three felony offenses in any federal or state court or combination thereof. N.C. Gen.Stat. § 14-7.1 (2005). Under longstanding precedent of our courts, being an habitual felon is not a substantive offense and is instead used only to enhance the sentence of an underlying felony committed while the defendant was an habitual felon. See State v. Allen, 292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977) ("The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status.") Thus, "[b]eing an habitual felon is not a crime but is a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence." Id.
A trial court must arraign a defendant for habitual felon status "[a]fter commencement of the trial and before the close of the State's case, . . . in the absence of the jury[.]" N.C. Gen.Stat. § 15A-928(c) (2005). If the defendant remains silent in the face of the allegations, "the State may prove that element of the offense charged before the jury as a part of its case." Id. at § 15A-928(c)(2). The purpose of Section 15A-928 is "to insure that the defendant is informed of the previous convictions the State intends to use and is given a fair opportunity to either admit or deny them or remain silent." State v. Jernigan, 118 N.C.App. 240, 244, 455 S.E.2d 163, 166 (1995).
As noted earlier, a defendant may waive his right to be present at his noncapital felony trial through his "voluntary and unexplained absence from court subsequent to the commencement of trial." Richardson, 330 N.C. at 178, 410 S.E.2d at 63. However, our state Supreme Court has also held that a defendant "should be present when evidence is introduced for the purpose of determining the amount of punishment to be imposed." State v. Pope, 257 N.C. 326, 330, 126 S.E.2d 126, 129 (1962). Likewise, "[t]he accused has the undeniable right to be *618 personally present when sentence is imposed. Oral testimony, as such, relating to punishment is not to be heard in his absence." Id. at 334, 126 S.E.2d at 132-33. Nevertheless, "[a] judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." Id. at 335, 126 S.E.2d at 133.
Defendant argues that the habitual felon proceedings fall between trial and sentencing, such that he could have waived his right to be present at his trial for the substantive offenses of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia, but he was constitutionally required to be present for the habitual felon proceedings because they concerned a sentence enhancement. Nevertheless, even assuming arguendo that Defendant is correct in this assertion, we find that he has failed to show any prejudicial effect resulting from his absence. On 20 June 2006, at the outset of Defendant's trial, and in Defendant's presence but before a jury had been seated, the trial court stated that there were three charges, namely, "one possession of Schedule II controlled substances, one possession of drug paraphernalia and there's a third indictment of habitual felon." Moreover, in an indictment dated 8 February 2006, over four months before Defendant's trial, the State listed the prior felonies committed by Defendant and used by the State as the basis for the charge of habitual felon status.
In light of these facts, as well as Defendant's waiver of his right to be present at trial, we find that Defendant was "informed of the previous convictions the State intend[ed] to use" and was "given a fair opportunity to either admit or deny them or remain silent." Jernigan, 118 N.C.App. at 244, 455 S.E.2d at 166. Moreover, we note that this Court has previously found no error when a trial court moved forward with habitual felon proceedings after they had already begun and a defendant failed to return to court following a five-minute recess. State v. Skipper, 146 N.C.App. 532, 535-36, 553 S.E.2d 690, 692-93 (2001). This assignment of error is without merit.
No error.
Judges HUNTER and BRYANT concur.
NOTES
[1] State v. Richardson, 330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331213/ | 228 Ga. 838 (1972)
188 S.E.2d 487
CLARK
v.
CLARK.
27048.
Supreme Court of Georgia.
Submitted February 15, 1972.
Decided March 9, 1972.
Rehearing Denied March 23, 1972.
Morris & Smith, Charley G. Morris, B. J. Smith, for appellant.
Johnson & Johnson, S. D. Johnson, for appellee.
GRICE, Justice.
The rulings and decree complained of here arose from an action for divorce, alimony and custody of minor children filed in the Superior Court of Clayton County by Lorease Clark against Joseph Eugene Clark. The jury returned a verdict in favor of the wife and a judgment was entered thereon. The husband's motion for new trial as amended was denied. The appeal embraces five enumerations of error, one of which is the denial of the motion for new trial, which contains 21 grounds.
Many of the issues relate to the subject matter of the verdict and decree.
The verdict, upon its face, recited as follows: "Question of Divorce: For [the wife]. Question of Wife's Alimony, if any: *839 None (see over). Support for Children: $200 per month for 2 children (2 minor girls)." On its reverse side the verdict made the following awards: for the husband certain Atlanta and Florida properties and also "One Half interest in property in Fayette Co."; for the two named children described property at "Mountain View, Ga. with privilege of [the wife] to live at same until she remarries"; and for the wife "One Half interest in property in Fayette Co."
The decree provided in substance as follows.
It awarded the wife a divorce, both parties having the right to remarry; it granted the wife custody of the children; it ordered the husband to pay the wife $100 each month per child for support of the children until the happening of stated events; and it awarded the wife a one-half undivided interest in the Fayette County property.
The decree also awarded the Mountain View property to the wife "in trust for the two minor children as tenants in common."
It further recited as follows: "The [wife] herein shall have the right to live herein and use said property for the home of her and the two minor children until [she] remarries. Upon the two minor children, both reaching the age 21, the title to said property vested in said children as tenants in common."
The decree further stated that the property of the husband in Florida shall remain free and clear of any claims of the wife.
The husband in his enumeration of errors and in his amended motion for new trial makes many attacks upon the verdict and decree. We deem it necessary to deal with only one of these attacks.
It is that the verdict and decree sought to take a part of the husband's property and to award it to his children. As to this, the verdict attempted to award to the children his Mountain View property with the privilege of the wife to live there until she remarries. The decree purported to follow the verdict. In addition to the monthly instalments in the verdict for the support of the children, the decree, in *840 this respect, provided for his Mountain View property to be held in trust by the wife until the majority of the children, at which time title would vest in them, with the wife having the right of occupancy until remarriage.
In our view, this attempt to award the property of the father to his children is contrary to law.
Our law requires that until majority the father must provide for the maintainance, protection and education of his children. Code § 74-105. It also provides that until provision is made for them, voluntarily or by court decree, the father is liable to third persons for necessaries furnished for their benefit while in the wife's custody. Code § 30-215.
When alimony is sought, whether or not the jury finds in favor of the wife, they shall also specify "what amount" the children shall be entitled to for permanent support. Code § 30-207. (Emphasis supplied.)
In Thomas v. Holt, 209 Ga. 133 (2) (70 SE2d 595) this court held that the purpose of Code §§ 30-207 and 30-215, supra, is to relieve the father from his common law liability to support the children and by court decree require him to contribute a "specified amount" for their support and maintenance.
From the foregoing it is clear that the husband's responsibility for the support of his children does not extend to awarding them title to his property. He is not required to settle an estate upon them. See generally in this connection 24 AmJur2d 949, Divorce and Separation, § 837.
It follows that for the reasons above, the verdict and decree are invalid.
This feature renders void all provisions of the verdict and the decree insofar as alimony and child support are concerned. It is inconceivable that with this feature stricken the jury would have intended the other provisions for alimony for the wife and support of the children to remain.
Therefore the case must be reversed and remanded for new trial, insofar as alimony and child support are concerned.
The other questions with reference to the verdict and *841 decree need not be dealt with here since they are not likely to recur upon another trial.
2. The general grounds for motion for new trial, insofar as divorce is concerned, were properly overruled. The conduct of the husband and wife was such as to authorize the grant of divorce to her.
3. Several other grounds of the motion for new trial relating to divorce remain for disposition here. We shall treat them briefly since they do not require elaboration.
(a) There is no merit in two grounds complaining that the trial court permitted testimony as to matters which took place prior to the present marriage of the parties. These grounds do not set forth or specify any place in the record where the rulings or testimony complained of occurred.
(b) One ground asserts that it was prejudicial and harmful for the court to allow certain testimony and colloquy to be given before the jury. This was properly overruled. No objection or motion to take any action was made.
(c) The ground complaining of permitting cross examination of the husband as to the existence of a prior marriage of the parties is not maintainable.
(d) Likewise without merit is the ground which urges error in allowing cross examination as to the husband's altercation with a tenant.
(e) Nor was it error to deny the husband's motion for mistrial in reference to testimony as to his attempted sale of certain property.
4. The enumeration asserting that the charge of the court was grossly verbose and confusing is not valid. A study of the charge, in the light of the issues, does not justify this complaint.
We find no error in the rulings relating to divorce.
Judgment affirmed in part; reversed in part with direction. All the Justices concur, except Nichols, Hawes and Gunter, JJ., who dissent.
GUNTER, Justice, dissenting. The verdict in this divorce case which awarded real estate of the husband-father to two minor children was not, in my opinion, a void verdict.
*842 The majority opinion holds that the award of property (and by this I assume is meant real estate) out of the father's estate to his children is contrary to law. I do not agree with this conclusion. I see no distinction between awarding real estate, having a determinable value in money, to children and awarding the husband-father's money to children.
Georgia law provides that where alimony or support or division of property is involved in a divorce action that the property and earnings of the parties must be set forth in the divorce complaint if this information is known. See Ga. L. 1967, p. 761 (Code Ann. § 30-105 (6)).
Our Code § 30-201 defines alimony as "an allowance out of the husband's estate."
Code § 30-206 provides that in suits for divorce the trial judge may grant alimony, or decree a sum sufficient for the support of the family of the husband dependent upon him. This is upon the theory that the wife and minor children have a legal claim upon his support. This Code section also provides that in the event such an award is made, then the husband shall not be liable to third persons for necessaries furnished to the family.
Code § 30-207 provides that the jury, on the final verdict, may provide permanent alimony for the wife and may specify what amount the minor children shall be entitled to for their permanent support. This Code section also provides that if an award is made for the minor children, then the husband shall not be liable to third persons for necessaries furnished to the children.
Code § 30-208 provides that orders, decrees or verdicts in favor of the children or family of the husband may be enforced as those in favor of the wife exclusively. Code § 30-209 provides that the jury may provide permanent alimony for the wife from either the corpus of the estate of the husband or otherwise.
Code § 30-213 provides that where there is no divorce action pending but the husband and wife are living apart that she may institute an action in behalf of herself or in *843 behalf of her minor children or in behalf of herself and minor children jointly for alimony.
Code § 30-215 provides that until provision is made for the support and maintenance of the wife and minor children the husband shall be liable for necessaries furnished to them.
It is beyond question that the jury in its verdict can make an alimony award consisting of real estate out of the husband's estate to the wife. See Wise v. Wise, 156 Ga. 459 (119 S.E. 410). And in the case of Gholston v. Gholston, 54 Ga. 285, this court construed and applied an Act of 1806 and held that in a divorce case it was competent for the jury to distribute the property between the parties and their children.
I interpret these Georgia statutes as giving a divorce court authority to award support for children out of the property of the father, and it is my opinion that a jury by its verdict may divest the father of title to real estate and the decree based on such a verdict does transfer such real estate to the children for their maintenance and support. See in this connection the case of Cline v. Cline, 186 Tenn. 509 (212 S.W.2d 361).
I cannot see or understand any logical, practical reason why a jury in a divorce case cannot award real estate out of the husband-father's estate to the minor children of the father, so that it will belong to such minor children in fee simple.
In my opinion the verdict in this case was not void.
I respectfully dissent.
I am authorized to state that Justices Nichols and Hawes join me in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331245/ | 188 S.E.2d 604 (1972)
14 N.C. App. 436
Fred H. LANE, Jr., d/b/a Lane's Outboard
v.
Jimmy HONEYCUTT.
No. 723DC206.
Court of Appeals of North Carolina.
May 24, 1972.
Certiorari Denied July 31, 1972.
Taylor & Marquardt by Dennis M. Marquardt and Nelson W. Taylor, Beaufort, for plaintiff appellee.
Perry C. Henson and Daniel W. Donahue, Greensboro, for defendant appellant.
Certiorari Denied by Supreme Court July 31, 1972.
VAUGHN, Judge.
Plaintiff has been engaged in the business of selling boats, motors and trailers in Carteret County for a number of years. On 21 February 1970, he sold a new 20-foot Critchfield boat, a new 120 hp motor and a new 1970 Cox boat trailer to a person who represented himself as John W. Willis. The purchaser took possession of the goods in exchange for a check in the amount of $6,285.00. The check was later dishonored. Contrary to the contentions of plaintiff, we hold that the goods were delivered under a transaction of purchase and that the consequences of this purchase *605 are governed by G.S. § 25-2-403, which, in part, is as follows:
"Power to transfer; good faith purchase of goods; `entrusting.'(1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though
(a) the transferor was deceived as to the identity of the purchaser, or
(b) the delivery was in exchange for a check which is later dishonored, or
(c) it was agreed that the transaction was to be a `cash sale,' or
(d) the delivery was procured through fraud punishable as larcenous under the criminal law."
We do not discuss the evidence and questions raised as to whether the check was a forgery, the transaction a cash sale or whether delivery was procured through fraud punishable as larcenous under the criminal law. Contrary to the law of this State as it may have been prior to the enactment of G.S. § 25-2-403, that statute now allows the vendee in such a transaction to transfer a good title to a "good faith purchaser for value."
The question, therefore, which we consider to be determinative of this appeal is whether there is any evidence to support the following findings of fact by the court. "(2) The Defendant, Jimmy Honeycutt, did not purchase the boat, motor and trailer in good faith."
It is well settled that:
"When a jury trial is waived, the court's findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary. Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33, and cases cited. There is no difference in this respect in the trial of an action upon the facts without a jury under Rule 52(a) (1) and a trial upon waiver of jury trial under former G.S. § 1-185. Findings of fact made by the court which resolve conflicts in the evidence are binding on appellate courts." Blackwell v. Butts, 278 N.C. 615, 180 S.E.2d 835, 837.
We now review some of the evidence as it relates to how defendant came into possession of the property in order to determine whether there was evidence to support the court's finding that defendant was not a purchaser in good faith.
In the summer of 1970, defendant, a resident of Asheboro, North Carolina, rented a beach house from John R. Garrett in Garden City, South Carolina. Defendant had known Garrett for several years. Defendant's version of his transaction with Garrett with reference to the boat was, in part, as follows:
"Mr. Garrett first approached me about buying his house on the beach that I was staying in, and he told me he wanted $50,000.00 for it, and I told him I couldn't afford anything like that. He said, `Well, let me sell you a boat out there.' And I said, `Well, I couldn't afford that, either.' * * *
* * * * * *
* * * As to whether or not, in other words, this boat looked like it was fairly expensive, well, I thought it would be a little more than it was. He told me the price and I was very pleasantly surprised. . . . * * * . . . (H)e sells fishing tackle and stuff of that nature, and beer. He also sells gasoline for boats. Yes, sir, that is about all he sells down there. He rents small fishing boats and motors too. No, he doesn't sell them, he doesn't sell boats as far as I know. . . . * * *
* * * * * *
*606 . . . (H)e's a pretty sly businessman. I've bought stuff from him before, and he would make you think you were getting a steal. . . .
* * * * * *
I did not know John Willis and did not know him by one of his aliases. I never met him under the alias of John Patterson or any other alias, and I have never met him since that date. I don't know from whom Mr. Garrett got the boat, he didn't tell me the man's name. * * *
* * * * * *
* * * I first knew that the boat was stolen when the F.B.I. came to see me. * * * He (Agent Madden) told me who the true owner of the boat was at that time and he told me it was a stolen boat and Mr. Patterson was wanted by the F.B.I. * * * His real name is John William Willis. The F.B.I. told me that one of his aliases was John Patterson. . . ."
Garrett told defendant he would let defendant have the boat for $2500. Defendant then paid Garrett a deposit of $100. Garrett had nothing to indicate that he was the owner of the boat, motor or trailer. Garrett told defendant he was selling the boat for someone else. "This guy comes down, you know, and does some fishing."
Two weeks later defendant returned to Garden City, South Carolina, with $2400, the balance due (on a boat, motor and trailer which had been sold new less than six months earlier for $6,285.00). On this occasion,
"Mr. Garrett had told mewell, he always called him, `this guy' see, so I really didn't know of any name or anything, but he told me, `this guy does a lot of fishing around here, but I can't seem to get ahold of him.' He said, `I've called him, but I can't get ahold of him, so since you have the money and you're here after the boat' . . .; `(s)ince you have the money and I can't seem to find him,' he said, `I don't believe he would object, so I'll just go ahead and sign this title for you so you can go on and get everything made out to you.' He then signed the purported owner's name on the documents and he signed the title over to me then."
The so-called "document" and "title", introduced as defendant's exhibit No. 8, was nothing more than the "certificate of number" required by G.S. § 75A-5 and issued by the North Carolina Wildlife Resources Commission. This "certificate of number" is not a "certificate of title" to be compared with that required by G.S. § 20-50 for vehicles intended to be operated on the highways of this State. Upon the change of ownership of a motor boat, G.S. § 75A-5(c) authorizes the issuance of a new "certificate of number" to the transferee upon proper application. The application for transfer of the number, among other things, requires the seller's signature. A signature is "the name of a person written with his own hand." Webster's Third New International Dictionary (1968). Defendant observed Garrett counterfeit the signature of the purported owner, John P. Patterson, on the exhibit. Following the falsified signature on defendant's exhibit No. 8, the "date sold" is set out as "June 12, 1970" and the buyer's "signature" is set out as "George (illegible) Williams." There was no testimony as to who affixed the "signature" of the purported buyer, George Williams, and there is no further reference to him in the record.
Defendant's exhibit No. 9 is a temporary registration certificate from the North Carolina Department of Motor Vehicles. The temporary certificate was dated 19 February 1970 (two days prior to the sale by plaintiff to "Willis" alias "Patterson"). It describes the vehicle as "trailer, homemade, 1970" and was issued to "John Palmer Patterson." The vehicle registration license number which appears on the temporary certificate is 7567KH. Defendant received this certificate from Garrett. *607 The trailer defendant received from Garrett was a 1970 Cox trailer. It bore the same registration plate number, 7567KH. Defendant did not receive a certificate of title to the Cox trailer that he obtained from Garrett which plaintiff now seeks to recover. Plaintiff retained possession of the manufacturer's certificate of origin for the Cox trailer and, apparently no certificate of title has been issued for that vehicle.
We hold that the evidence was sufficient to support the court's finding that defendant was not a good faith purchaser. Defendant brings forward other assignments of error which have been carefully considered. We hold, however, that all essential findings of fact are supported by competent evidence and are sufficient to sustain the judgment.
Affirmed.
MORRIS and GRAHAM, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262749/ | 113 N.H. 333 (1973)
BARTON'S MOTEL, INC.
v.
SAYMORE TROPHY CO., INC.
No. 6451.
Supreme Court of New Hampshire.
June 29, 1973.
Nighswander, Lord, Martin & KillKelley and Michael C. Murphy (Mr. Murphy orally) for the plaintiff.
*334 Snierson, Chandler & Copithorne (Mr. John P. Chandler orally) for the defendant.
LAMPRON, J.
Petition for declaratory judgment and injunction pertaining to plaintiff's right of way over land of the defendant. Plaintiff owns a 60-acre tract lying about 1000 feet southeasterly of Union Avenue, a public street in Laconia. Defendant's land, also called Johnson Field, has a frontage of 150 feet on the southeast side of Union Avenue and extends to a depth of about 1000 feet to the Gilford line where it abuts plaintiff's land.
The right of way in question was created in 1947 by the then common owner of both parcels. In a deed to a predecessor in title of the plaintiff this common owner conveyed part of his land, "together with a right to pass and repass on foot or by vehicle in common with others over land of the grantor [now defendant's] from Union Avenue along a strip fifty feet in width adjoining land of . . . [Davis and Laconia Milling] and being the northeasterly portion of a one hundred fifty foot strip of land on a plan . . . to be recorded, said strip of land being known as `Johnson Field'." The specific issue in controversy is whether the plaintiff is entitled to the use of the entire 50-foot width of right of way free from any interference or obstruction by the defendant.
The Trial Court (Johnson, J.), after a hearing and view, made certain findings and rulings and decreed that plaintiff's right of way should extend 30 feet in width from the adjoining property and that the remaining 20 feet of the 50-foot strip could be utilized by the defendant for any purpose which would not interfere with the plaintiff's use of its above described way. Plaintiff's exceptions to findings and rulings of the court were reserved and transferred.
Plaintiff's first contention is that the language creating the easement is unambiguous and as a matter of law grants a right of way of 50 feet in width with the right to use any and all of that 50-foot strip of land unobstructed by the defendant. To sustain this contention the plaintiff must point to language in the deed which clearly and definitely fixes the width of the right of way as being 50 feet. 3 Tiffany, *335 Real Property § 802 (3d ed. 1939); 3 Powell, Real Property § 415, at 500 (1970). The meaning and legal effect of the grant is a question to be determined by this court. Kennett Corp. v. Pondwood, Inc., 108 N.H. 30, 31, 226 A.2d 783, 784 (1967). We hold that the grant of "a right to pass and repass on foot or by vehicle in common with others . . . along a strip of land fifty feet (50') in width" fixed the outward limits wherein the right of way was to be exercised, but is ambiguous as to whether the use of the whole 50-foot width was granted for this purpose. See Cragin v. Woollett, 104 N.H. 202, 206, 182 A.2d 457, 460 (1962).
In such a situation a reasonably convenient and suitable way across the servient land is presumed to be intended. Sakansky v. Wein, 86 N.H. 337, 169 A. 1 (1933); Sandown v. Kelley, 97 N.H. 418, 89 A.2d 758 (1952); 3 Tiffany, Real Property § 804, at 328 (3d ed. 1939). This presents a question of fact to be determined by the trial court considering all the surrounding circumstances. These include the location and uses of both dominant and servient estates and the advantage to be derived by one and the disadvantage to be suffered by the other owner. Gardner v. Webster, 64 N.H. 520, 15 A. 144 (1888); Sakansky v. Wein, supra at 339, 169 A. at 2. The trial court could also properly consider any information gained from its view of the premises. O.K. Fairbanks Co. v. State, 108 N.H. 248, 251-52, 234 A.2d 108, 111 (1967).
The fundamental question before us on this issue is whether the evidence supports the trial court's findings and rulings. The plaintiff points to the trial court's findings that its land is ideally suited for use as residential development and at the time the right of way was created in 1947 the parties knew or should have known that its property would in all likelihood be utilized for that purpose at some time in the near future. Plaintiff also calls attention to evidence by an assistant engineer of the city of Laconia that in his experience, starting in 1941, streets of 50 feet or more in width were advocated by the department.
However, the court also found that defendant's predecessor in title who granted the way "did not intend to give up the property for a public street but rather intended that *336 plaintiff's predecessor have only a private right of way." In that respect, the record reveals no designation by the parties of the way as a "street" or "proposed street". There was also evidence, and a finding by the court, that if the defendant desires to expand its present building it "could much more economically and practically expand in the direction of the strip in question rather than in other directions." Finally there was evidence that the city of Laconia did not codify by ordinance its requirement for a 50-foot street until 1950, three years after the creation of this right of way, and provided that the city engineer could modify the width requirement under certain conditions.
We cannot say as a matter of law on the record that the findings, rulings and decree of the trial court were not warranted. The order is
Decree affirmed.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262708/ | 18 Md. App. 220 (1973)
306 A.2d 261
WILLORIS MILLER
v.
MASS TRANSIT ADMINISTRATION.
No. 442, September Term, 1972.
Court of Special Appeals of Maryland.
Decided July 3, 1973.
The cause was argued before POWERS, MOYLAN and DAVIDSON, JJ.
Samuel Blibaum for appellant.
John J. O'Meara for appellee.
DAVIDSON, J., delivered the opinion of the Court.
Appellant sued appellee for damages for the personal injury she suffered while boarding appellee's bus. On 11 May 1972 in the Superior Court of Baltimore City, the case was tried before a jury, Judge Harry A. Cole presiding. At the conclusion of all of the evidence, the court granted appellee's motion for a directed verdict.
On appeal, the issue is whether appellant produced sufficient evidence to warrant submission of the case to the jury. In resolving that issue, it is not for this Court to weigh the evidence, but rather to determine whether the evidence before the trial court, when construed most favorably to appellant's position, would sustain her claim. Jacobson v. Julian, 246 Md. 549, 555-56, 229 A.2d 108, 112-13 (1967). The only evidence which need be considered in this determination is that relating to the issue of negligence.
Appellant testified that on 25 May 1971, she boarded an MTA bus with a bag in her left hand and arms and a shopping bag, her pocketbook and her bus fare in her right hand. She had her left foot on the bottom step and her right foot on the second step when the bus started off. She testified that when it started, "the man was rough like," *222 meaning "he taken off like he was in a hurry like." Appellant lost her balance and fell down on her hands and knees.
Appellant contends that this evidence showed that she was in a position of peril known to appellee. Therefore, she contends, the showing that the bus started while she was in that position was sufficient evidence of appellee's negligence to justify submission of the case to the jury. Appellant contends further that even if her position was not one of peril, her showing of a rough, hurried start was sufficient evidence of appellee's negligence. Appellee disputes both contentions.
The general principles applicable to the issues in this case are well settled. A bus driver owes passengers the duty to exercise the highest degree of care consistent with the nature of his undertaking. Carolina Coach Company v. Bradley, 17 Md. App. 51, 54, 299 A.2d 474, 477 (1973); see Jacobson v. Julian, supra, 246 Md. at 559, 229 A.2d at 115. This obligation includes the duty to stop long enough to enable passengers to board the vehicle safely and reach a place of safety before the bus is started. Starting a vehicle at a time when the operator has reason to apprehend danger to the passenger because he has not reached such a position of safety is premature and constitutes negligence on the part of the carrier. Grinath v. Baltimore and Bel Air Ry. Co., 145 Md. 290, 293, 125 A. 604, 605-06 (1924); Plummer v. W., B. & A. Elec. R.R. Co., 124 Md. 200, 207, 92 A. 536, 538 (1914); Baltimore City Pass. Ry. Co. v. Baer, 90 Md. 97, 107-08, 44 A. 992, 994 (1899); Baltimore Traction Co. v. State, Use of Ringgold, 78 Md. 409, 426, 28 A. 397, 399 (1894); Central Ry. Co. v. Smith, 74 Md. 212, 218-19, 21 A. 706, 707-08 (1891). Once the passenger has reached a place of safety or is "fairly on board," it becomes his duty to use reasonable care to protect himself against movement of the vehicle which is the normal incident of public transportation. Retkowsky v. Balto. Transit Co., 222 Md. 433, 437, 160 A.2d 791, 793 (1960), and cases cited therein. Thereafter, the operator is not required to wait until the passenger has reached a seat before starting, absent special circumstances such as a passenger laboring under some apparent infirmity or *223 disability. Starting the car after a passenger has gotten safely on board but before he is seated constitutes negligence on the part of the carrier only if the bus is started in an unusual, abnormal, extraordinary or negligent manner. Przyborowski v. Balto. Transit Co., 191 Md. 63, 66, 59 A.2d 687, 688 (1948); Brocato v. United Rys. and Elec. Co., 129 Md. 572, 575, 99 A. 792, 793 (1917); Carolina Coach Co. v. Bradley, supra, 17 Md. App. at 55, 299 A.2d at 477. Stated in another way, a public carrier
"... may be started after a passenger has got on board the car, and before he has reached a seat, unless there is some reason to apprehend danger in so doing, or the movement is in a negligent manner." Plummer v. W., B. & A. Elec. R.R. Co., supra.
Applying these general principles to the instant case, we dispose first of the contention that the manner of starting the bus was negligent. Mere statements that the bus started "rough like" or "like he was in a hurry" are not sufficient in this state to establish negligence on the part of the operator. Johnston v. Greyhound Corp., 139 F. Supp. 551, 555-56 (D. Md. 1956); Kaufman v. Baltimore Transit Co., 197 Md. 141, 146, 78 A.2d 464, 467 (1951); Carolina Coach Co. v. Bradley, supra. We are not persuaded by appellant's agrument that reasons of public policy warrant departure from these precedents. We find that the evidence was not sufficient to warrant submission to the jury of the issue of the alleged negligence of the operator in his manner of starting the bus.
Appellant's other contention, that she was in a position of peril when the bus started, raises a more difficult issue. Appellee argues that appellant failed to show, other than by inference, where she was on the bus when it started. In fact, appellee says, all of the evidence offered by appellant warrants the inference that she had safely boarded the bus and was moving toward a seat when it started. While appellant's testimony was not detailed and her evidence in its totality permits more than a single inference, her testimony that she had her left foot on the bottom step and *224 her right foot on the second step when the bus started off was sufficient to permit a jury to infer that appellant was in the process of mounting the steps to the floor of the bus when the bus started. Therefore, we must assume this to be the fact for purposes of this decision. Retkowsky v. Balto. Transit Co., supra, 222 Md. at 435, 160 A.2d at 792. The only remaining question is whether evidence that a passenger was mounting the stairs of a bus when it started is sufficient to submit to the jury the question of whether the passenger had reached a position of safety prior to the starting of the bus.
Appellee contends that as a matter of law, appellant was not in a position of peril such that the operator of the bus was charged with the duty of keeping it stationary. In support of this position, he relies on the cases of Brocato v. United Rys. Co., supra, Przyborowski v. Balto. Transit Co., supra, and Retkowsky v. Balto. Transit Co., supra.
In Brocato, the plaintiff had gotten both feet upon an exterior platform of a trolley car, a level area large enough to hold a number of passengers and upon which other passengers were then standing. She attempted to move from this "platform" to the interior of the car. The passenger standing behind her testified that "just as she caught her foot on the step that leads into the car from the platform the car gave a jerk and she fell down and shoved me back." The Court held these facts, unassociated with any unusual circumstances or conditions, insufficient to show negligence on the part of the company in starting the car while the plaintiff was still upon the platform and before she was seated.
In Przyborowski, the plaintiff boarded a trackless trolley. She put her fare in the fare box and handed a "return slip," which entitled her to a reduced fare, to the operator. The slip fluttered to the floor, and she stooped down on both knees to retrieve the slip. While she was so engaged, the trolley started with a very fast jerk and threw her to the floor. The Court there held that the passenger was "fairly aboard" and affirmed the trial court's directed verdict for the defendant.
In Retkowski, the plaintiff, a woman 66 years of age and *225 carrying two shopping bags, boarded a streetcar. After getting on the car, she set one bag down, deposited her money in the fare box with her right hand, said to the operator, "just a minute," and started to turn around. As she got "turned around in front of the box," the operator started the car with a very sudden jerk which threw her off balance and down onto the floor. The Court of Appeals affirmed the directed verdict in favor of the carrier.
All of these cases are part of a long line of cases, too numerous to review here, which make it abundantly clear that once a passenger has planted both feet on a level portion of the floor of a vehicle sufficient in size to carry passengers in safety be the place within or without the actual body of the car he is in a place of safety and fairly on board. The duty is then his to see that he is not harmed by the normal movements of the car. Thus, where the passenger has gotten both feet onto a level portion of a back platform leading to the interior of the car, as in Brocato, has gotten both feet onto a level portion of the floor of the interior of the vehicle near the fare box, as in Retkowski, or has gotten both feet onto a level portion of the floor of the vehicle near the fare box and then has stooped down to her knees, as in Przyborowski, the issue of negligence cannot be submitted to the jury unless there is evidence to show that the injury was caused by an unusual, extraordinary, or abnormal start. None of these cases deal with the issue presented here of whether a passenger mounting the steps to the floor of a public conveyance has, as a matter of law, reached a position of safety.
In Baltimore City Pass. Ry. Co. v. Baer, supra, there was evidence to show that the appellee attempted to board an open trolley car when it had come to a stop. He had gotten both feet upon a narrow footboard which ran alongside of the car and was about to step up into the car when, at a signal of the conductor, it started with a sudden jar. He was thrown off the footboard and dragged along the street for 30 to 50 feet before the conductor was able to stop the car. At trial, the defendant's motion for a directed verdict on the ground that the evidence of the carrier's negligence was *226 insufficient was denied. On appeal, the Court of Appeals affirmed the trial court and held the evidence sufficient to submit the issue of the carrier's negligence to the jury. The Court there said:
"If the appellee's testimony be true, the conductor of the car was made aware of his desire to board the car and stopped it for the purpose of allowing him to do so. If the conductor then started the car prematurely without allowing the appellee a reasonable opportunity under the circumstances of first taking a safe position, he was guilty of negligence, and under the rulings of this Court in Central Railway Co. v. Smith, 74 Md. 214, and Baltimore Traction Co. v. Ringgold, 78 Md. 426, the appellee was entitled to recover. It is desirable, in order to facilitate rapid transit in large cities, that passengers should be prompt in entering and departing from street cars, but those operating the cars must take every reasonable precaution for the protection of the passengers. It is a well-known fact that the footboard running along the side of the ordinary open trolley car is narrow, and that both the step from the pavement to the footboard and the one from the latter to the floor of the car are high. A fair opportunity of taking these two steps in safety should always be afforded to the passenger before starting the car." (Emphasis supplied.) 90 Md. at 107-08, 44 A. at 994.
In Oklahoma Ry. Co. v. Parker, 201 Okla. 193, 203 P.2d 875 (1949), the Supreme Court of Oklahoma considered the precise question presented in this case. There the evidence showed that a streetcar came to a stop at a regular passenger stop for the purpose of permitting the plaintiff to enter as a passenger. The passenger testified that after the streetcar came to a stop, she stepped on the bottom step of the car with her left foot, stepped on the second step with her right foot, and was stepping onto the floor level with her left foot when, while she was in the act of stepping onto the *227 floor level with her right foot, the motorman started the car with a sudden jerk which threw her backwards down the steps. The motorman testified that when he started the car, plaintiff had her left foot on the floor of the vehicle, her right foot on the second step, and had a hand raised over the fare box into which she was dropping tokens. At trial, defendant's motion for a directed verdict on the ground of insufficient evidence of the carrier's negligence was denied. On appeal, the Court rejected the carrier's claim that plaintiff was on the streetcar in a place of safety at the time it started and affirmed the denial of the motion for directed verdict. The Court said:
"As above noted, the plaintiff testified that she was in continuous movement from the time she stepped on the lower step of the car until the car started; that she passed the upright support on the lower step and did not have an opportunity to fully reach the floor of the car before the start, and was unable to reach the upright support on the floor of the car before the car started, and was unable to save herself from falling down the steps.
"It is undisputed that plaintiff fell with the start of the car.
"In 10 Am. Jur., Carriers, § 1432, the following applicable rule is stated:
`In the instance of persons boarding or alighting from a carrier's conveyance, any movement of the vehicle before the passenger has had a reasonable opportunity to reach a place of safety therein or to alight is negligence, rendering the carrier liable for the resulting injuries.'
"Obviously a passenger walking up steps of a street car and without hand support might become overbalanced or fall upon a movement of the car not expected. We do not perceive that a passenger entering upon the steps of a street car, and *228 in movement up the steps of a car, and before reaching the floor of the car, might reasonably expect the car to start. It is equally clear that a motorman, under such circumstances, having due regard for the safety of an entering passenger and in the exercise of due diligence, should have noted the passenger's position and should have foreseen that it was dangerous to start the car.
"As was said by the court in its syllabus in Steeg v. St. Paul City Ry. Co., 50 Minn. 149, 52 N.W. 393, 16 L.R.A. 379:
`The servants of a street car company who control the movements of its cars are bound to use due care in starting the same so as to allow passengers a reasonable opportunity to get safely on board, regard being had to the circumstances of each case.'
"Herein, the question whether the car was started before the plaintiff had a reasonable opportunity to reach a place of safety therein was one for the jury." 203 P.2d at 876-77.
The courts of other states are in accord. See, e.g., Memphis St. Ry. Co. v. Huggins, 215 F. 37, 39 (6th Cir.1914); St. Louis Southwestern Ry. Co. v. Wainwright, 152 F. 624, 626 (8th Cir.1907); Cohen v. West Chicago St. Ry. Co., 60 F. 698, 702-03 (7th Cir.1894); Huckaby v. St. Louis, I.M. & S. Ry. Co., 119 Ark. 179, 177 S.W. 923, 925 (1915); Hellman v. Los Angeles Ry. Corp., 135 Cal. App. 627, 27 P.2d 946, 948-49 (1934); Waller v. Wilmington City Ry. Co., 5 Pen. 374, 61 A. 874 (Super. Ct. Del. 1905); Jacobsen v. Cummings, 318 Ill. App. 464, 48 N.E.2d 603, 605 (1943); South Covington & C. St. Ry. Co. v. Heinrich, 170 Ky. 499, 186 S.W. 187, 188 (1916); Chesapeake & O. Ry. Co. v. Borders, 140 Ky. 548, 131 S.W. 388, 389 (1910); Gorman v. Massachusetts Bay Transportation Authority, 350 Mass. 760, 212 N.E.2d 568 (1965); Beattie v. Detroit United Ry., 158 Mich. 243, 122 N.W. 557, 558 (1909); Gaffney v. St. Paul City Ry. Co., 81 Minn. 459, 84 N.W. 304 (1900); Steeg v. St. Paul City Ry. Co., 50 Minn. 149, 52 N.W. 393 (1892); McSwyny v. Broadway & *229 S.A.R. Co., 7 N.Y. Supp. 456, 458 (Sup. Ct. 1889); Tompkins v. Portland Ry., Light & Power Co., 77 Ore. 174, 150 P. 758 (1915); Donnelly v. Pennsylvania Co., 252 Pa. 175, 97 A. 272 (1916); Blue Ridge Light & Power Co. v. Price, 108 Va. 652, 62 S.E. 938 (1908); Blau v. Puget Sound Traction, Light & Power Co., 88 Wash. 260, 152 P. 1023, 1024 (1915); Normile v. Wheeling Traction Co., 57 W. Va. 132, 49 S.E. 1030 (1905); Otto v. Milwaukee Northern Ry. Co., 148 Wis. 54, 134 N.W. 157, 159 (1912); Anno., Duty and Liability of Motorbus to Persons Boarding Bus, 93 A.L.R.2d 237, § 10(a) at 254-56 (1964) and cases cited therein; Anno., Motor Carrier's Liability for Injury to Passenger by Sudden Stopping, Starting, or Lurching of Conveyance, 57 A.L.R.2d 5, § 2 (2) at 13-15 (1958) and cases cited therein. See also Miller v. New Orleans Public Service, Inc., 196 So. 86, 87 (La. App. 1940); Saunders v. Boston Elevated Ry. Co., 216 Mass. 355, 103 N.E. 779 (1914); Straight v. United Electric Rys. Co., 46 R.I. 383, 128 A. 571 (1925). We find no authority to the contrary.
We are persuaded that a passenger mounting the stairs to a public conveyance who has not yet placed both feet upon the floor of an area sufficiently large to carry passengers in safety, has not, as a matter of law, reached a position of safety so as to absolve the carrier of any further responsibility to keep the vehicle stationary. Weighing the public interest in a rapid mass transit system against the right of the individual to be protected from the negligent acts of others, particularly those providing mass transportation, we can only conclude that the amount of delay incident to permitting a person to reach a level portion of the floor of a public conveyance before it is started is far outweighed by the injury which may be suffered by an individual who is not given a reasonable opportunity to board. In an ever more complex society, characterized by the expanding need for the utilization of mass transit by a sophisticated, mobile and hurrying population, the right of the individual to participate in the utilization of such facilities, free of the fear of negligent injury, must be zealously preserved. See 14 Am.Jur.2d, Carriers, § 1016 at 437.
*230 Accordingly, we believe that the evidence that the plaintiff was on the stairs of the bus and had not yet reached the floor when the bus started was sufficient to submit to the jury the question of whether the car was started before she had a reasonable opportunity to reach a place of safety. The trial court erred in granting the appellee's motion for a directed verdict. The judgment must be reversed.
Judgment reversed; case remanded for a new trial.
Costs to be paid by appellee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262710/ | 452 Pa. 441 (1973)
Heidtman Estate.
Supreme Court of Pennsylvania.
Argued April 26, 1973.
July 2, 1973.
*442 Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Peirce A. Hammond, Jr., with him Harris, Hammond and Harris, for appellants.
George R. Eves, for appellee.
OPINION BY MR. CHIEF JUSTICE JONES, July 2, 1973:
This appeal raises two issues: (1) does a husband, by virtue of the marital relation to his incompetent spouse, possess such an adverse interest in her property that he must be precluded from appointment as guardian of her estate? (2) if, as a matter of law, there is no adverse interest by reason of the husband-wife relation *443 alone, did the evidence presented in the court below justify a finding of adverse interest in fact?
The question of the necessity of a guardian for Laura H. Heidtman's estate is not in issue: her incompetence was conclusively established by medical testimony in the proceedings below and is not disputed by the appellants. The only question before us is whether the lower court properly appointed the incompetent's husband to serve as guardian.[1]
Laura Heidtman was admitted to the Reading Hospital on March 30, 1972. She was examined there by Dr. Elmer Horst, who found her "acutely disturbed and very paranoid." Laura Heidtman's husband, Walter Heidtman, petitioned the court for an adjudication of incompetence. He also requested that he be appointed as guardian of Laura Heidtman's estate. After a hearing on May 5, 1972, the court issued its June 7, 1972, decree of incompetence and appointed Walter Heidtman as guardian of the estate.
On June 22, 1972, Estelle Gray, Florence Hirst and George Harnly, siblings of the incompetent, filed exceptions to the lower court's exclusion of offered evidence, its appointment of Walter Heidtman as guardian and the failure to appoint a "disinterested" guardian. On October 16, 1972, the court issued a decree sustaining these exceptions for the limited purpose of determining the admissibility of the excluded evidence and to judge whether such evidence, if admitted, could establish circumstances which would warrant a denial of the appointment of the incompetent's husband as guardian.
A second hearing was held on November 10, 1972. On December 4, 1972, the court issued a final decree in *444 which it dismissed the exceptions and "confirmed absolutely" the appointment of Walter Heidtman as guardian. Estelle Gray and Florence Hirst have taken this appeal from the court's decree.[2]
The Rules of the Orphans' Court, Section 14, Rule 142(a) (8), provide that "[a] petition to adjudicate a person incompetent and to appoint a guardian of his estate shall set forth . . . an averment that the proposed guardian has no interest adverse to the alleged incompetent."[3] From this basic rule the appellants would have us extrapolate a corollary that a husband cannot be appointed guardian of the estate of his incompetent wife. The appellants cite legislation affording married women property and contractual rights (Act of July 15, 1957, P.L. 969, § 1, 48 P.S. § 32.1), the right to control separate earnings (Act of April 3, 1872, P.L. 35, §§ 1, 2, 48 P.S. §§ 34, 35), the right of a married woman to control property upon the husband's desertion (Act of May 4, 1855, P.L. 430, §§ 2, 4, 48 P.S. §§ 42, 43) and the right of a married woman to be free from liability for her husband's debts (Act of April 11, 1848, P.L. 536, § 6, 48 P.S. § 64). Appellants maintain that in view of legislation establishing the independence of a competent married woman from her husband's proprietary control it would be anomalous to permit an incompetent woman to be "victimized" by her husband. On the strength of this argument alone, we are urged to promulgate a rule which would raise a presumption of adverse interest in the husband seeking appointment as *445 guardian of his wife's estate, a presumption based solely upon his marital relation to the incompetent wife. The effect would be novel, but untenable: the husband would bear the burden of coming forward with evidence that his wish to serve as guardian of the incompetent wife's estate is uncompromised by the opportunity for personal gain. We believe that the court below has properly placed the burden of proof of adverse interest with those who have challenged the husband's petition for appointment as guardian.
Appellants argue, alternatively, that on the evidence presented the court should not have appointed the appellee as guardian of his wife's estate because adverse interest is factually indicated. When a decree of incompetence is entered the incompetent is made a ward of the court appointing the guardian, and his estate is in the custody of that court. "Necessarily, therefore, the appointment of guardians for the incompetent . . . is within the sound discretion of the court to which the application has been made; and [the appellate] court will not reverse unless there has been an abuse of discretion." Voshake's Estate, 125 Pa. Superior Ct. 98, 101, 189 A. 753, 755 (1937); see Coulter Estate, 406 Pa. 402, 412, 178 A. 2d 742, 747 (1962); Arthur's Case, 136 Pa. Superior Ct. 261, 264, 7 A. 2d 55, 57 (1939). A thorough examination of the record reveals no abuse of discretion by the lower court in this case.
Walter and Laura Heidtman have been married for forty-eight years. They are the owners of real estate as tenants by the entirety. Mrs. Heidtman owns separate assets in the form of stocks, bonds and other personalty. Walter Heidtman has owned and operated his own business for forty-two years. He is experienced in handling investments and securities and believes that he is capable of managing his wife's assets.
*446 With the intent to prove Walter Heidtman's adverse interest, the appellants offered extracts of a book belonging to Laura Heidtman which contains memoranda of personal business transactions, some involving her husband.[4] These notations, in themselves, evidence neither negligence nor intentional misconduct by Walter Heidtman. Nor do Mrs. Heidtman's writings alone support a charge of overreaching by her husband in the management of their jointly held property. Upon this record, there is insufficient evidence of adverse interest to justify a finding of an abuse of discretion by the court below.
Decree affirmed. Appellants to pay costs.
NOTES
[1] We acquired jurisdiction pursuant to Section 202(3) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, § 202, 17 P.S. § 211.202(3).
[2] The incompetent's brother, George Harnly, though a party to proceedings below, is not an appellant here.
[3] The petition of Walter Heidtman for an adjudication of incompetence and his appointment as guardian of the estate does not include an averment of no adverse interest. The appellants do not challenge the sufficiency of the pleadings, however, in this appeal and the issue is not therefore before us.
[4] A 1965 reference to her purchase of R.C.A. stock in 1948 contained the following: "Walter bought this for me. I paid for them. I never get Walter Heidtman to get any stock for me unless I pay cash or a check for them. I do owe Walter Heidtman I think it was $58.00 when he paid to make up another stock when I was in the hospital in Phila."
A 1964 notation, concerning a split in her Atlantic Refining Company stock, reads as follows: "in 1963 I had 36 shares then there was a split 2 1/2 for 1 in 1963. I am sure this is not right as Walter has so much more than I have and we both bought the same amount. I payed [sic] Walter Heidtman for what he bought me Atlantic Ref. June 1963. I had 36 shares split 2 1/2 for 1, $54.00, Walter had 75. We bought Atlantic Ref. at the same time. I have 90 shares now. I think Walter had 282 1/2."
A later undated notation reads as follows: "Walter sold my Standard Oil of New Jersey. I don't know what he bought."
Another undated memo provides: "I should have 25 shares and 10 shares and there is no 10 or 20 shares. Walter got this all mixed up when I was in the hospital. I ask to get my stocks back. I got them, but I do not think this is right. Look this up."
A final reference to the stock in Atlantic Refining Company reads as follows: "We bought these at the same time and we had the same amount, he had over 3 hundred and I only have 90 shares now in my name. In 1954 I was getting $45.00 same as in 1961. I am sure there was a split 2 1/2 for 1 share and I got a check for $54.00. Now I have 90 shares. I am sure this is not right." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262713/ | 18 Md. App. 395 (1973)
306 A.2d 627
WILLIAM LEROY COOK, II
v.
STATE OF MARYLAND.
No. 671, September Term, 1972.
Court of Special Appeals of Maryland.
Decided July 11, 1973.
*396 The cause was argued before ORTH, C.J., and POWERS and SCANLAN, JJ.
Richard M. Karceski, with whom were Harold I. Glaser and Sidney Albert on the brief, for appellant.
Josef E. Rosenblatt, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State's Attorney for Baltimore City, and Paul Cocoros, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
SCANLAN, J., delivered the opinion of the Court.
The appellant, William Leroy Cook, II, following a jury trial before Judge Basil A. Thomas in the Criminal Court of Baltimore, was found guilty of distributing marijuana, maintaining a common nuisance, possession of narcotics paraphernalia and simple possession of methamphetamine and lysergic acid diethylamide (L.S.D.). He received concurrent sentences totaling five years.
This appeal raises the question whether the trial court improperly denied the appellant the twenty (20) peremptory challenges which Rule 746 a 1 assures a defendant who "is subject, on any single count, to a sentence of ... twenty years or more of imprisonment...." For the reasons stated below, we hold that the court below erred in not affording appellant the twenty (20) peremptory challenges he requested and to which he was entitled by virtue of Rule 746 a 1.[1]
*397 Count four of Indictment 2344 alleged that the appellant "unlawfully did POSSESS a certain Controlled Dangerous Substance of Schedule II, to wit: Methamphetamine, which is a Narcotic Drug, in sufficient quantity to reasonably indicate under all the circumstances an INTENT to Manufacture and Distribute such Controlled Dangerous Substance." (Emphasis added.) Count six of the same indictment alleged that the appellant "unlawfully did POSSESS a certain Controlled Dangerous Substance of Schedule I, to wit: L.S.D. also known as Lysergic Acid Diethylamide, which is a Narcotic Drug, in sufficient quantity to reasonably indicate under all the circumstances an INTENT to Manufacture and Distribute such Controlled Dangerous Substance." (Emphasis added.)
Article 27, Section 286 (a) (1) makes it unlawful for any person:
"To manufacture, distribute, or dispense, or to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance."
Article 27, Section 286 (b) (1) provides that any person who violates Section 286 (a) with respect to a "substance classified in Schedules I or II which is a narcotic drug shall, upon conviction, be deemed guilty of a felony, and sentenced to a term of imprisonment for not more than twenty (20) years. ..." (Emphasis added.) On the other hand, the penalty provided where the violation is with respect to "any other controlled dangerous substance classified in Schedules I, II, *398 III, IV or V ..." is imprisonment for a term of not more than five (5) years. Section 286 (b) (2).
Article 27, Section 277 (q) sets forth an abstruse definition of "narcotic drug." Specifically, it provides that:
"`Narcotic drug' shall mean any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; and which have been found to present an extreme danger to the health and welfare of the community because of their addiction-forming and addictive-sustaining liabilities:
(i) "`Opiate' which shall mean any dangerous substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having such addiction-forming or addiction-sustaining liability; and the `opium poppy' which shall mean the plant of the species Papaver somniferum L., except the seeds thereof and the `poppy straw' which shall mean all parts, except the seeds, of the opium poppy, after mowing; and coca leaves which shall mean cocaine and any compound, manufacture, salt, derivative, mixture or preparation of coca leaves, except derivatives of coca leaves which do not contain cocaine, ecgonine or substances from which cocaine or ecgonine may be synthesized or made;
(ii) "A compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates;
(iii) "A substance and any compound, manufacture, salt, derivative, or preparation thereof which is chemically identical with any of the substances referred to in clauses (1) [(i)] and (2) [(ii)], except that the words `narcotic drug' as used in this [section] include decocainized coca leaves or *399 extracts of coca leaves, which extracts do not contain cocaine or ecgonine."
The appellant's position on the issue which confronts us is simple and, on the facts of this case, persuasive. He argues that counts four and six of Indictment 2344 specifically charged him with possession of, with intent to distribute, "methamphetamine and lysergic acid diethylamide, `narcotic drugs, in sufficient quantity to reasonably indicate under all the circumstances an intent to manufacture and distribute such controlled dangerous substance.'" The record indicates that the appellant made a timely request of the trial judge that he be allowed twenty (20) peremptory challenges by virtue of Rule 746 a 1. This request was denied with the trial judge limiting him to four (4) peremptory challenges. The record is silent concerning the reasons which prompted the court's ruling. At no time, either prior to or during the trial, was Indictment 2344 amended to specify that methamphetamine and L.S.D. were "non-narcotic," in contrast to their identification as "narcotic drugs" in the indictment. The record shows that no evidence was introduced of the non-narcotic nature of the two drugs in question until testimony to that effect was given by one of the State's expert witnesses during the trial.
The State, on the other hand, contends that neither methamphetamine nor L.S.D. are in fact narcotic drugs, and that the term "narcotic drug," as used in counts four and six of Indictment 2344, is surplusage, since the indictment identified the two drugs and the Schedules in which they are listed. From this the State moves to the conclusion that the appellant could reasonably have determined that methamphetamine and L.S.D. are non-narcotic drugs, and, ergo, appellant was not entitled to the twenty (20) peremptory challenges which he sought at the outset of the trial.
The assumptions on which the State's argument rests do not withstand close scrutiny. We start with the unquestioned proposition that the peremptory challenges to which an accused is entitled by virtue of Rule 746 a 1 *400 represents an important right "vital to the conduct of a criminal cause in this State." Johnson v. State, 9 Md. App. 143, 149, 262 A.2d 792, 796 (1970). Thus, if any count of Indictment 2344 charged an offense which would subject the appellant, if found guilty, to a sentence of twenty (20) years or more of imprisonment, he had an "unfettered" right to twenty (20) peremptory challenges, Brice v. State, 264 Md. 352, 366, 286 A.2d 132, 134 (1972), and the court below erred in limiting him to only four such challenges.
As stated, the State concedes that the fourth and sixth counts of Indictment 2344 identified methamphetamine and lysergic acid, respectively, as a "narcotic drug." This designation, it argues, however, was "surplusage." Examination of the fourth and sixth counts show that both were typed on a printed form. One space on that form is left blank, to be filled in with the name of the drug with which an accused is charged with possession with intent to manufacture, etc. Immediately following this space there is language reading in part "which is/is not a narcotic drug." In both the fourth and sixth counts of Indictment 2344 the phrase "is not" has been stricken out by three x-marks. Yet, if the term "narcotic drug" as used in counts four and six of the indictment was merely surplusage, as the State contends, it is difficult to understand why the phrase "is not" was deliberately stricken from the indictment form.
Similarly, we are not impressed by the State's contention that the appellant should have known the non-narcotic nature of the two drugs of which he was accused of having in his possession with intent to manufacture and distribute because each was specifically designated by name in the indictment and, additionally, the Schedule in which each was listed also set forth therein. Turning to Schedule I and II, as found in Article 27, Section 279, we find methamphetamine is listed in Schedule II (Sec. 279 (b)4c) and lysergic acid diethylamide is listed in Schedule I (Sec. 279 c 6). The listing of these two drugs in the respective Schedules, however, establishes only that they "are controlled dangerous substances." Their listing in the Schedules per se provides no clue to whether or not they are narcotic drugs.
*401 It is true that the controlled dangerous substances listed on Schedule I, including L.S.D., are substances which have been found to have a "high potential for abuse," "no accepted medical use in the United States," and a "lack of accepted safety for use under medical supervision." Section 279 (a) (1), (2) and (3). The drugs listed in Schedule II, including methamphetamine, have been found to have a "high potential for abuse," "are currently accepted for medical use in the United States" and their abuse "may lead to severe psychic or physical dependence." 279 (b) 1, 2 and 3. The mere listing of a substance in Schedule I or II, however, does not inform the reader, including a criminal defendant or his counsel, as to whether or not the particular substance is a narcotic or a non-narcotic drug.
As we have indicated, "narcotic drug" is defined in Article 27, Section 277 (q) (i), (ii) and (iii). The first paragraph of Section (q) reads:
"`Narcotic drug' shall mean any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis; and which have been found to present an extreme danger to the health and welfare of the community because of their addiction-forming' and addictive-sustaining liabilities."
There then follow in subparagraphs (i), (ii) and (iii) of paragraph (q) quoted, the several categories of narcotic drugs, including an "opiate." The latter is defined to include "any dangerous substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having such addiction-forming or addiction-sustaining liability...."
In the light of the potentially broad reach of the statutory definition of "narcotic drug," the State's argument that the appellant could reasonably have determined, by reading the indictment and then referring to the statute, that methamphetamine and lysergic acid diethylamide are non-narcotic drugs lacks merit. The appellant is not a *402 chemist. When the State charged appellant with possession of a drug identified in the indictment as a "narcotic drug," he was entitled to take the State at its word at least until evidence to the contrary was produced. Such evidence was not introduced until halfway through the trial when, through the testimony of one of its experts, the State disclosed the non-narcotic nature of both methamphetamine and L.S.D. That disclosure, however, cannot be applied retroactively. The number of peremptory challenges to which the appellant was entitled must be determined on the face of the counts of the indictment and the right to exercise those challenges arises prior to the jury being sworn. Rule 746 c; and see Brice v. State, supra at 366. The appellant was neither a chemistry major nor gifted with clairvoyance. He could not reasonably have known before the jury was sworn, or have anticipated at that time, that testimony later would demonstrate that the two drugs allegedly in his possession were non-narcotic drugs. Accordingly, he was entitled to the twenty peremptory challenges guaranteed by Rule 746 a 1, since both counts four and six charged him with a crime for which, if convicted, he might receive a prison sentence of twenty years.
In considering the issues presented by this appeal, the Court has encountered what may be two gaps, one perhaps intentional, the other more likely an oversight, in the Controlled Dangerous Substances Act of 1970. Although not necessary for the disposition of the present appeal, discussion of these apparent lacunae in the statute may be helpful to the Department of Mental Health and Hygiene, the trial courts of the State and defendants in future criminal proceedings arising under the prolix provisions of the narcotics laws.
First, we refer to the definition of "narcotic drug," as set out in Section 277 (q), especially the phrase reading "and which have been found to present an extreme danger to the health and welfare of the community because of their addiction-forming and addictive-sustaining liabilities." (Emphasis added.) It might be argued that before a drug may be classified as a "narcotic drug," within the definition *403 of Section 277 (q), there must be a prior administrative finding by the Department of Health and Mental Hygiene that such a drug presents "an extreme danger to the health and welfare to the community because of ... [its] addiction-forming and addictive-sustaining liabilities." Under that interpretation of the statute, even drugs which fall within the category set forth in subparagraphs (i), (ii) and (iii), Section 277 (q) would still not be covered by the statutory definition of narcotic drugs until the Department had made such a finding.
In our opinion, however, the statute is not to be interpreted so as to require further administrative findings before a drug falling within the categories expressly enumerated in subparagraphs (i), (ii) and (iii) of Section (q) may qualify as a "narcotic drug." The previous statute, Article 27, Section 276 (o) of the Maryland Code (1957), provided that:
"The term `narcotic drugs' also shall be taken to include any drug or substance similar to those listed hereinabove, whether synthetic or otherwise and whether or not physically distinguishable from those listed hereinabove, and whatever may be its trade name, found by the State Board of Health, after reasonable notice and opportunity for hearing, to have comparable habit-forming qualities and effects of habituation, from the effective date of determination of such finding by said State Board of Health."
Article 27, Section 277 (q), however, does not prescribe any procedure pursuant to which the Department of Health and Mental Hygiene may add other substances to the statutorily defined categories of "narcotic drugs" following a finding by the Department that they present an extreme danger to the community because of their addiction-forming and addictive-sustaining liabilities. In contrast, Article 27, Section 278 (a) does provide a procedure, including notice and hearing, pursuant to which the Department may add a substance to the controlled dangerous substances listed in Schedules I through V, as set out in Article 27; Section 279.
*404 When the General Assembly enacted the Controlled Dangerous Substances Act in 1970, it failed to provide any procedures by which the Department might find and determine that additional substances should be included within the statutory definition of "narcotic drugs" in Section 277 (q), although it did provide for such procedures in permitting the Department to add to the lists of "controlled dangerous substances" contained in Schedules I through V.
We conclude, therefore, that the language of the last clause of the first paragraph of Section 277 (q), which reads in part "and which have been found," etc., is a legislative finding by the General Assembly that the categories of narcotic drugs thereafter listed in subparagraphs (i), (ii) and (iii) of paragraph (q) have addiction-forming and addictive-sustaining liabilities and present an extreme danger to the health and welfare of the community. It follows that the statutory classifications of "narcotic drugs" found in Section 277 (q) may only be supplemented by specific amendment to the statute, since no procedure has been set up to accomplish such a result through an administrative determination initiated by the Department of Mental Health and Hygiene.
The omission from the 1970 act of any provision allowing the categories of "narcotic drugs" to be expanded by administrative action appears to us to have been intentional. In view of the significantly more severe penalties imposed on violators of the statute when "narcotic drugs" are involved, the General Assembly may have deliberately chosen to require that any supplementing of the categories of narcotic drugs now included in the statute be achieved through legislative rather than merely administrative action. We note in this connection that the federal statute regulating the distribution and possession of controlled substances, which contains a definition of "narcotic drugs" which is simpler than, but not dissimilar to, the definition set out in the Maryland statute[2] also does not provide for *405 procedures which would permit additions to the categories of "narcotic drugs" solely through administrative action.
We turn now to a second hiatus in the Controlled Dangerous Substances Act, and one which appears to be an inadvertent, rather than an intentional, legislative omission.
In Schedule I of the federal act, 21 U.S.C. 812 (c), the statute lists by name 42 substances which it identifies as "opiates." Since the definition of "narcotic drugs" found in 21 U.S.C. 802 (16) expressly includes "opiates" in subparagraph (B) thereof, a person charged with possession with the intent to distribute any one of the 42 drugs listed in Schedule I would be on notice that he was charged with possession of a narcotic drug and thus subject to a more severe penalty than in the case of non-narcotic drugs, as prescribed in 21 U.S.C. 841 (b) (1). Schedule I of the Maryland statute, as found in Article 279 (a) lists the same 42 opiates found in the federal act. Unlike the federal statute (21 U.S.C. 812 (c)), however, Schedule I of our statute fails to identify the 42 drugs listed in Schedule I as "opiates." Instead, in the Maryland statute the list of these 42 drugs is immediately preceded by the following language:
"Any of the following substances, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, unless specifically excepted, whenever the existence of such isomers, esters, ethers and salts is possible within the specific chemical designation." (Emphasis added.)
*406 The above stated variance between Schedule I of the Maryland statute and the corresponding Schedule of the federal act is difficult to explain. The Court is inclined to believe that the difference may be the result of an inadvertence in legislative drafting and not of deliberate legislative choice. Accordingly, the General Assembly may wish to consider an amendment to Article 279 (a), Schedule I (a) to change the phrase "any of the following substances" to read "any of the following opiates." If such a change were made, it would be unnecessary, unless challenged by the defense, to introduce expert testimony as to the narcotic nature of any of the 42 drugs now listed in Schedule I, since their classification as an "opiate" would incorporate by reference the definition of "narcotic drug," which includes "opiates," found in Article 277, Section (q) (1). Moreover, the Department also could add to the list of opiates found in Schedule I by following the procedures prescribed in Article 27, Section 278 (a).
Our conclusion that the omission of the word "opiate" from Schedule I, subparagraph a was inadvertent is further confirmed when we look at subparagraph b of the same Schedule. Under that subparagraph, 28 substances, substantially identical to the drugs listed in subparagraph (b) of Schedule I of the federal statute, are set forth following their identification in the Schedule as "opium derivatives." Thus, a person charged with the possession of any of the 28 "opium derivatives" listed in subparagraph b of Schedule I of the Maryland statute should know that he was charged with the possession of a "narcotic drug" as defined in Section 277 (q) (ii), since the statutory definition specifically includes any "derivative ... of opium."
We hope that our discussion of the provisions of the Controlled Dangerous Substances Act, including Schedule I, even though not directly required for a decision in this case, possibly may serve for a clearer understanding of the statute as it may be applicable in future proceedings. Obviously, the statute is not a model of clarity. Confusion, or misunderstandings, concerning a criminal statute should be avoided, or at least reduced to a minimum, when that is *407 possible without subverting legislative intention. Our opinion is an effort in that direction.
Judgment under counts 1, 2, 3, 5 and 7 of indictment 2344 reversed and the case remanded for new trial on those counts; judgment under the first count of indictment 2345 reversed; costs to be paid by the Mayor and City Council of Baltimore.
NOTES
[1] Accordingly, we do not take up the barrage of additional contentions raised by the appellant in his brief and oral argument before this Court, including his claims that: (1) the court improperly submitted several counts of the two indictments to the jury for their determination; (2) the trial court abused its discretion in permitting two of the witnesses to qualify and testify as experts; (3) the State failed to prove the necessary chain of custody over items seized from the appellant at the time of his arrest; and (4) the evidence was insufficient to support the appellant's conviction of the crime of possession of marijuana in sufficient quantity to reasonably indicate an intent to manufacture or distribute. However, we have considered and agree with appellant's contention that the evidence was insufficient to sustain his conviction under Indictment 2345 (maintaining a nuisance house). The State also concedes the point. We, therefore, reverse the judgment under Indictment 2345.
[2] "The term `narcotic drug' means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
"(A) Opium, coca leaves, and opiates.
"(B) A compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates.
"(C) A substance (and any compound, manufacture, salt, derivative, or preparation thereof) which is chemically identical with any of the substances referred to in clause (A) or (B). Such term does not include decocainized coca leaves or extracts of coca leaves, which extracts do not contain cocaine or ecgonine." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262714/ | 900 F.Supp. 1041 (1995)
Allan J. DeCASTECKER, Plaintiff,
v.
CASE CORPORATION, a Delaware corporation, Defendant.
No. 94-4089.
United States District Court, C.D. Illinois.
October 3, 1995.
*1042 Douglas G. Olson, Silvis, IL, for plaintiff.
Richard M. Batcher, Bozeman, Neighbour, Patton & Noe, Moline, IL, for defendant.
ORDER
McDADE, District Judge.
Before the Court is Defendant Case Corporation's Motion for Summary Judgement [Doc # 34]. Defendant Case Corporation ("Case") is a corporation which operates manufacturing facilities in the Quad City area. Plaintiff Allan DeCastecker ("DeCastecker") applied for and was denied a position with Defendant. As a result, Plaintiff filed a suit based upon the Age Discrimination *1043 and Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The Court has jurisdiction in this matter pursuant to the ADEA.
BACKGROUND
The following facts gave rise to the present controversy and are not in dispute. The Case Corporation is a large manufacturer of agricultural and other equipment. In October 1989, Case placed an ad in a local newspaper advertising an opening for a Process Engineer II at its East Moline plant. The ad listed the responsibilities of a process engineer as including "specifications of machine tools and production equipment as well as establishing the sequence of operations, tolerances, sizes, and related items used in the manufactured products." The ad went on to state that interested applicants "should have a B.S. in mechanical engineering or related degree. Prior experience in the processing engineering field is preferred." DeCastecker applied for the Process Engineer position by submitting his resume to Case.
DeCastecker was born September 25, 1942. He graduated from high school and completed a four year tool and dye apprenticeship program, but he does not have a college degree. DeCastecker worked for Case at its Rock Island facility from 1965 until 1987. While in the employ of Case, DeCastecker had two years of experience as an assembler and more than twenty years of experience as a manufacturing tool engineer. DeCastecker also has some experience with mainframe and personal computers.
Review of the applications and the hiring decision regarding the position of Process Engineer II were conducted and made by Daryl Moore, Tom Hansen, Bob Hanna, Bob Veltling, Sr., and Jim Hamrick. Moore, manager of personnel development, prepared the newspaper ad for the process engineer position and screened the applications initially. Moore withheld any applications which did not show that the applicant had a college degree. Hansen, manager of industrial relations, also screened resumes. Hanna, manager of the process engineering department, reviewed all resumes and selected those who would be interviewed. Veltling, a senior processing engineer, consulted with Hanna in his decisions. Hamrick, manager of technical services, along with Hanna, eventually made the final decision regarding who would be hired for the process engineer position.
DeCastecker sent in his resume for the Process Engineer II position, but it was screened out by Moore on the basis that he lacked a college degree. However, DeCastecker made two phone calls to Larry Neff, a senior processing engineer and acquaintance of DeCastecker's, to inquire about the Process Engineering position for him. These calls were made in late October and early November. After the late October call, Neff recommended to Hanna that he consider DeCastecker for the Process Engineer II position but Hanna stated that no such position was available. Two weeks later, after the early November call, Neff once again inquired about the position and Hanna informed Neff that a hiring freeze was in effect until January 1, 1990. Although a hiring freeze was allegedly in effect at that time, Hanna and Hamrick decided to interview Renee Rondeau and were purportedly impressed. Accordingly, they sought and obtained an exception to the hiring freeze. Rondeau, therefore, filled the position of Process Engineer II.
DeCastecker, in response to his failed attempt to secure employment with Case, filed the present lawsuit against Case. DeCastecker's Complaint alleges that Case improperly considered age when deciding upon who to have fill the position of Process Engineer II. DeCastecker alleges that Case systematically discriminated on the basis of age against many qualified applicants including himself in violation of the ADEA and that the requirement of a college degree was no more than a smoke screen for this systematic discrimination. Case filed the present motion for summary judgment arguing that no policy to discriminate against persons 40 years of age or older existed at Case and that its requirement of a college degree for the position of Process Engineer II was merely an attempt to upgrade the educational base of its employees.
ANALYSIS
"A motion for summary judgment is not an appropriate occasion for weighing *1044 evidence; rather, the inquiry is limited to determining if there is a genuine issue for trial." Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). This Court must "view the record and all inferences drawn from it in the light most favorable to the party opposing the motion." Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989). When faced with a motion for summary judgment, the nonmoving party may not rest on its pleadings. Rather, it is necessary for the nonmoving party to demonstrate, through specific evidence, that there remains a genuine issue of triable fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991). Moreover, in an employment discrimination case, where intent is inevitably the central issue, caution is required in deciding whether to grant summary judgment. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir.1992).
There are two essentially different frameworks through which an employee may prove that he or she was discriminated against on the basis of age: the direct, mixed-motives analysis of Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 1794, 104 L.Ed.2d 268 (1989), appropriate when both legitimate and illegitimate considerations played a role in an adverse employment decision, and the indirect burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), as rearticulated in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981), appropriate when either a legitimate or an illegitimate set of considerations led to the challenged decision and the plaintiff offers an insufficient amount of direct evidence to preclude summary judgment under the Price Waterhouse standard.
At some point in the proceedings, it is necessary for the district court to decide which approach Plaintiff purports to use at trial. Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir.1989) citing Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n. 12, 109 S.Ct. 1775, 1788 n. 12, 104 L.Ed.2d 268 (1989). If the Court finds that the direct evidence presented is sufficient to survive a motion for summary judgment, then the indirect burden-shifting method of McDonnell Douglas is rendered irrelevant. Id., 490 U.S. at 568, 109 S.Ct. at 2017; Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985). Conversely, if there is not enough direct evidence to surpass the summary judgment stage, the Court must then employ the McDonnell Douglas methodology to the case. Randle, 876 F.2d at 570. In this way, the jury will not be overly confused by having to focus upon two different evidentiary schemes at trial. Thus, it is the Court's task here to first determine whether Plaintiff could prevail before the jury under the Price Waterhouse direct method of proof. Only if that method fails should the Court engage in the McDonnell Douglas burden-shifting analysis.
Price Waterhouse Analysis
Under the Price Waterhouse analysis, 490 U.S. at 258, 109 S.Ct. at 1794, as applied to ADEA cases in Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 658 (7th Cir.1991) (en banc), Plaintiff must present "direct evidence" to show that age discrimination was a substantial or motivating factor in the decision not to hire him. Should Plaintiff succeed in proving that age was a "substantial" or "motivating factor" in that decision, Defendant must respond by proving by a preponderance of the evidence that it would have made the same employment decision even if it had not taken the impermissible factor into account. Price Waterhouse, 490 U.S. at 258, 109 S.Ct. at 1794; Visser, 924 F.2d at 658.
The Court's initial task is to define the often confusing term "direct evidence" in the context of the Price Waterhouse direct method of analysis. The Seventh Circuit recently had occasion to clarify this language in Troupe v. May Dept. Stores Co., 20 F.3d 734, 735-36 (7th Cir.1994). In defining the evidence to be used under the direct method *1045 of proof, the court noted that in addition to a direct acknowledgment of discriminatory intent by the defendant, "circumstantial evidence is admissible too, to provide a basis for drawing an inference of intentional discrimination."[1]Id. at 736. The court pointed out that there are three distinct types of circumstantial evidence of intentional discrimination: (1) evidence of suspicious timing, ambiguous oral or written statements, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn; (2) statistical and other evidence that employees similarly situated to the plaintiff other than in the characteristic on which the employer is forbidden to base a difference in treatment received systematically better treatment; and (3) evidence that the plaintiff was qualified for the job in question but passed over in favor of a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is a mere pretext for discrimination. Id. (internal citations omitted).
In support of his claim, DeCastecker offers circumstantial evidence of all three types. First, DeCastecker offers two telling reports generated by Case. In a document entitled "Outline For Department Review 9/8/88," Case lists as a specific topic for discussion the issue of Case's "Aging work force." A second document entitled "Key Position Review 1988" states, "There is a need to input some youth into the organization and begin to execute developmental plans." The document goes on to state that Case's "organization continues to age" and, under the heading "Major Management Needs and Actions," that Case needs to "[i]nput youth into the organization to prevent further skewing of our age distribution."[2] The Court finds that these company policy statements constitute sufficient circumstantial evidence of age discrimination under the direct method of proof so as to preclude summary judgment in this case. The Court finds it reasonable to infer that because Case has a discriminatory company policy against its aging workforce, it is a question of material fact whether Case discriminated in its particular decision not to hire DeCastecker. Troupe, 20 F.3d at 736; Visser, 924 F.2d at 658.
*1046 Second, DeCastecker submits statistical evidence as direct proof of age discrimination in this case. In Exhibits 26 and 27 of his opposition to Defendant's motion for summary judgment, DeCastecker offers two graphs which depict a shift in the age distribution of Case's workforce during the period from December 1988 to October 1990. The graphs show that the age distribution in 1988 was skewed toward a more aged workforce. In October 1990, however, the age distribution of Case's workforce shifted toward a younger workforce. DeCastecker maintains that this is a result of Case's discriminatory practice of hiring younger employees only. DeCastecker also points out that in June of 1989, eight positions, including the Process Engineer II position at issue in this case, were open for new hires. DeCastecker alleges that Case received some 165 applications for these positions but did not interview, much less hire, any person over 40 years of age. DeCastecker includes the resumes and qualifications of some of these applicants. Case counters DeCastecker's allegations by noting that in an 18 month period which covered six months prior to the ad being placed for the process engineer position and 12 months following the placement of the ad, Case hired or rehired 26 salaried persons and promoted one other person. Case claims that out of the 27 positions filled during that 18 month period, 13 of the positions were filled by persons 40 years old or older.
The Court finds DeCastecker's statistical evidence to be wanting in some respects. For instance, DeCastecker's graphical analysis of the reduced age in Case's workforce does not tell the Court to what degree retirement, voluntary departures, involuntary departures, and death or sickness played a part in moving the age curve toward a younger workforce. However, the Court does find DeCastecker's statistics to be of some probative value regarding the alleged age discrimination at Case when combined with the company statements regarding its aging workforce. Thus, such statistics constitute further circumstantial evidence to show that Case may have intentionally discriminated against DeCastecker on the basis of age so as to preclude summary judgment here.
Third, DeCastecker presents evidence that he was qualified for the Process Engineer II position and that Case's refusal to review his resume because of his lack of a college degree was only a pretext for age discrimination. While it is true that the job advertisement stated, "Interested applicants should have a B.S. in Mechanical Engineering or related degree," the Court finds that Neff's and Moore's deposition testimony creates a question of disputed material fact as to whether DeCastecker was qualified for the job.
DeCastecker had contacted Neff to inquire about the Process Engineer II position for him. Neff approached Hanna about the position on two different occasions. During the first conversation, Neff informed Hanna that DeCastecker had worked for a number of years at Case's Rock Island plant. However, Hanna refused to consider DeCastecker not because DeCastecker lacked a college education, but because he did not know of an opening for a process engineer. This conversation allegedly occurred during the latter two weeks of October. Yet, the advertisement for the Process Engineer II position had been placed on October 8, 1989. Thus, it can be inferred that Hanna knew about the opening but lied about the unavailability of the position because of DeCastecker's age.
Two weeks later, when Neff inquired about the position for the second time, Hanna once again refused to consider DeCastecker, not because DeCastecker was not qualified, but because a "hiring freeze" was in effect. Yet, Hamrick and Hanna hired Renee Rondeau during the time of the alleged hiring freeze. Rondeau is 29 and the second to youngest of all 59 applicants for the job. Thus, it could be inferred that Hanna lied about the hiring freeze and rejected DeCastecker's resume not because he lacked a college degree but because of DeCastecker's age.
Moore's deposition testimony further supports the fact that DeCastecker may in fact have been qualified for the job despite the lack of a college degree. Moore testified that she did not screen out all resumes which lacked a degree in engineering. Rather, she was "more liberal with the type of degree because education may at some point also *1047 come into play. It would need to be an equivalent combination of the degree plus experience, so if it was someone with a chemical degree but had performed engineering in the past, chances were, [Hanna] may have received that resume as well." If a chemical degree plus experience could qualify a person to be interviewed, then it is a factual question whether DeCastecker's four year tool and dye apprenticeship plus his great deal of prior experience qualified him for the position.
Moreover, the Process Engineer advertisement states that interested applicants "should have" a B.S. in Mechanical Engineering. By contrast, Case's advertisement for Production Supervisor states that the positions "require a B.A. or B.S. in engineering, business or other related field." (emphasis added). Thus, there is a factual question whether the "should have" language absolutely requires an engineering degree or merely suggests that it would be preferred. The Process Engineer II position had never previously required a college degree. Thus, the contours of the degree requirement are subject to dispute and are not appropriate for summary judgment.[3] This final item of dispute that DeCastecker may actually have been qualified for the Process Engineer II position helps to focus the general evidence of discrimination upon the specific employment decision at issue. See Randle, 876 F.2d at 569.
Once it is established that DeCastecker has presented enough evidence under the direct method of proof to show that age may have been a substantial or motivating factor in the decision not to hire him, Case must respond by proving by a preponderance of the evidence that it would have made the same employment decision even if it had not taken the impermissible factor of age into account. Price Waterhouse, 490 U.S. at 258, 109 S.Ct. at 1794; Visser, 924 F.2d at 658. Case argues that it would have made the same employment decision not to hire DeCastecker because he lacked a college degree and thus was not qualified for the position. This congruence of Case's argument under the Price Waterhouse standard with the issue of DeCastecker's job qualifications brings us back to our previous analysis that it is a question of material fact whether DeCastecker was qualified for the job. Thus, the Court finds that Case has failed to meet its burden under Price Waterhouse so as to merit summary judgment here. See Adler v. Madigan, 939 F.2d 476, 479 (7th Cir.1991) ("`Mixed-motives' situations are ordinarily not grist for the summary judgment mill.")[4]
CONCLUSION
IT IS THEREFORE ORDERED that Defendant's Motion for Summary Judgment [Doc. # 34] is DENIED.
NOTES
[1] This holding that circumstantial evidence may also be admissible under the direct method of proof is further supported by the Seventh Circuit's en banc decision in Visser which held, "The proverbial smoking gun is not required, but there is no circumstantial evidence, either, that pension costs played a role in the decision to fire Visser." 924 F.2d at 658. This language arguably implies that circumstantial evidence is enough to constitute direct evidence under the Price Waterhouse method of analysis. See Finnegan v. Trans World Airlines, Inc., 767 F.Supp. 867, 875 n. 22 (N.D.Ill.1991) (Moran, J.) citing Visser, 924 F.2d at 658-60 ("It appears, however, that a plaintiff who presents direct evidence of discrimination, thus falling within Price Waterhouse, may present circumstantial evidence as well."); Visser, 924 F.2d at 664 n. 1 (Cudahy, J., dissenting) ("Incidentally, one may get into mixed motive analysis by presenting either direct or circumstantial evidence.") (emphasis in original)
On the other hand, such a holding appears to fly in the face of the Seventh Circuit's previous holding in Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir.1989), that, "[B]y definition, direct evidence, if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption ... [A] plaintiff's so-called `direct' evidence must not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment decision in question." 876 F.2d at 569. Nevertheless, the Court must abide by the most recent clarification of the law by the Seventh Circuit.
[2] Plaintiff also offers the statement of Roger Behrens who was the outgoing plant manager of Case's East Moline Plant. Plaintiff alleges that when he called Behrens to inquire about the position, Behrens first asked his age and then said that Case was hiring younger people with college degrees. Behrens also allegedly told Plaintiff not to get his hopes up because of Case's policy of hiring young applicants only. The Court finds that Behrens' statement does not support Plaintiff's claim of age discrimination. The Seventh Circuit has held that "[s]tatements made by inferior employees are not probative of an intent to discriminate by the decisionmaker." McCarthy v. Kemper Life Ins. Co., 924 F.2d 683, 686-87 (7th Cir.1991); Konowitz v. Schnadig Corp., 965 F.2d 230, 233 n. 1 (7th Cir.1992) quoting Aungst v. Westinghouse Elec. Co., 937 F.2d 1216, 1221 (7th Cir.1991). Thus, because DeCastecker has failed to offer evidence suggesting that Behrens was involved in the hiring decision, any statement made by Behrens fails to constitute either direct or circumstantial evidence of age discrimination.
[3] Case cites Anderson v. City of Bessemer, 717 F.2d 149, 153 (8th Cir.1983), for the proposition that it is Plaintiff's burden to establish that he was better qualified than the successful applicant. Not only has Anderson been reversed by the U.S. Supreme Court, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), albeit on other grounds, but both the Sixth and Eleventh Circuits have categorically rejected such an approach because it creates another evidentiary burden that "unnecessarily complicates the issue." Gafford v. General Elec. Co., 997 F.2d 150, 167 n. 9 (6th Cir. 1993); Mitchell v. Baldrige, 759 F.2d 80, 84-86 (D.C.Cir.1985). The Court thus finds that all that Plaintiff must show is that he was qualified for the position, not that he was more qualified than any other applicant. Moreover, even if the "better qualified" standard did apply here, an issue of material fact certainly exists in that regard. While Rondeau may have more education, DeCastecker has a great deal more work experience in his favor.
[4] In light of the Court's finding that summary judgment is precluded under the direct method of proof, the Court need not address DeCastecker's claims under the McDonnell Douglas burden-shifting analysis. It should be noted, however, that the result would be the same under that analysis too. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262728/ | 207 F.Supp. 99 (1962)
Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor
v.
WARREN BROTHERS ROADS COMPANY.
No. 7-52.
United States District Court D. Maine, S. D.
July 9, 1962.
Thomas L. Thistle, Regional Attorney, U. S. Dept. of Labor, Albert H. Ross, Asst. Regional Atty., Boston, Mass., for plaintiff.
Roger A. Putnam, John A. Mitchell, Portland, Me., for defendant.
GIGNOUX, District Judge.
This action is brought under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. § 201 et seq., to enjoin violation of the overtime and record-keeping provisions of the Act. 29 U.S. C.A. §§ 207, 211(c), 215(a) (2) and (5), 217. The single issue presented is whether certain truckers whom defendant engages to transport materials used in its road-building operations are "employees" *100 of defendant within the meaning of the Act, or whether they are independent contractors.[1] It is conceded that the truckers are engaged in interstate commerce or in the production of goods for interstate commerce, and that defendant has neither paid them overtime rates, nor maintained the records concerning them required by the Act.
Warren Brothers Roads Company is a Massachusetts corporation engaged in the production of bituminous concrete materials for the paving of roads and similar surfaces in the State of Maine and elsewhere. Its production of paving material is accomplished in Maine through a central office located in Benton, Maine, from which three mobile mixing plants are controlled. These plants are set up in various locations to service particular jobs during the six warm-weather months of the year. One of these mixing plants has been located at Benton, near the location of the central office, since 1946; the other two plants have been moved from area to area. At each plant site Warren Brothers hires trucks, each provided with a driver by the owner, to transport the hot top from the plant to the job location.
It is defendant's policy to hire trucks from people without regard to how many trucks they may own. During the years 1959 and 1960, defendant hired approximately one hundred trucks, approximately ten of which were supplied by owners of one truck, and ninety of which were supplied by owners of two or more trucks. Of those who owned only one truck, some drove it themselves; others hired someone else to drive it. Of those who owned more than one truck, some had two or more assigned simultaneously to defendant's jobs, others did not. Some of these multi-truck owners drove on defendant's jobs or elsewhere; others did not drive at all. (Only those persons who rented one truck to defendant and drove it themselves are employees within plaintiff's contention.)
At any one time during the construction season, defendant would typically have several road jobs in progress. The number of hired trucks would range from ten to twenty for each job. At each plant location defendant would also have two of its own trucks, driven by its admitted employees and used for certain tasks for which defendant did not hire trucks from others and also for hauling hot top. While the majority of the trucks and drivers on each job would be newly hired from truckers in the area, the remainder would be trucks and drivers who moved from place to place to follow the plant within a reasonable distance from their homes.
The owners of all the hired trucks were paid weekly on an hourly or a per ton basis, the rate varying from job to job in accordance with oral arrangements negotiated with defendant's foreman at the start of each job. These arrangements were terminable by either party at any time, and the truckers could refuse a particular job if they did not like the price being offered by defendant. There was no agreement that the owner would provide a particular driver, but only that he would provide a competent driver; no helpers were involved. The owners were free to use their trucks elsewhere during the period in which they were dealing with defendant, and many of them did so. When not hauling for defendant, most of the truckers hired their trucks to other contractors, to the State or to a municipality and during the winter months utilized them in woods operations.
*101 The owners maintained their trucks on their own time and premises, paid their own operating expenses and provided their own consumable supplies, with the one exception of the diesel oil which was spread on the inside of the truck body prior to each loading. They insured the trucks and simply showed defendant the insurance certificates. The investment of an owner in a truck varied from approximately $2,500 to $3,500 and up. If a truck broke down while an hourly rate was applicable, payment was stopped if the interruption exceeded an hour or so. If defendant's mixer broke down, payment stopped and the truckers went home, unless there was stone to be hauled.[2]
The drivers of all the hired trucks were subject to the same degree of supervision and control by defendant's supervisory personnel. Defendant's plant foreman told the drivers what time to pick up the first load in the morning, where to deliver the loads during the day, and which was the last load at night, based upon the hours of mixer operation and the location of the job site. On occasional instances of manual unloading defendant's site foreman would direct the driver where to dump; generally, the drivers made a routine transfer to the paver. Each morning the drivers lined up at the mixer in the order in which they arrived, which generally set their order of loading for the day. By arriving early a driver had a chance to get an extra load in the course of the day. Defendant regulated neither speed nor route, and some drivers passed on the road and broke into line in order to get extra loads.
These truckers were thoroughly relaxed in the handling of their business matters. Generally, they rendered no bills, had no letterheads and did no advertising. Some kept track of their own hours or tons hauled, others left it to defendant. There was no specific arrangement concerning substitutes for the usual drivers. When an owner was ill or for any other reason was not to be driving himself, he generally let defendant's foreman know who would be driving, but no approval was required. Defendant paid the truck owner in any event. It did not deduct or withhold for the various employment taxes for any of the drivers, some of whom filed income and social security tax returns as self-employed persons.
As has been indicated, plaintiff's contention is limited to those persons who drove their own trucks on defendant's jobs.[3] In its answers to defendant's interrogatories, plaintiff originally named thirteen persons who were alleged to be within this category. Of the thirteen owner-operators whose names were so listed, plaintiff has waived its claim with respect to six, who plaintiff has stipulated were bona fide independent contractors for various reasons.[4] At the trial plaintiff presented the testimony of three of the remaining seven persons, contending that their testimony was representative of all seven of the owner-operators whose status is in issue.
The considerations relevant to a determination of the issue presented by this case are found in the leading Supreme Court decisions concerning the employment relationship under this Act and under the related Social Security Act. 42 U.S.C.A. § 301 et seq. They are Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961); Rutherford Food Corp. v. McComb, *102 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947); and United States v. Silk and Harrison v. Greyvan Lines, Inc., 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947) (one opinion).[5] These cases tell us that the primary consideration is effectuation of the purposes of the legislation, Silk at 713, 67 S.Ct. 1463; that the determination does not depend upon isolated factors but rather upon the circumstances of the whole activity, Rutherford 331 U.S. at 730, 67 S.Ct. 1473, 91 L.Ed. 1772; that it is a question of economic reality, Silk 331 U.S. at 713, 67 S.Ct. 1463, 91 L.Ed. 1757 and Whitaker House 366 U.S. at 33, 81 S.Ct. 933, 6 L.Ed.2d 100; and that the common law test of power to control how the work shall be done is but one factor in an overall determination. Silk 331 U.S. at 713-714, 67 S.Ct. 1463, 91 L.Ed. 1757. While they make it clear that no list of criteria is complete, Silk at 716, 67 S.Ct. 1463, six tests for determining whether or not an employment relationship exists are evident. They are: (1) the extent to which the services in question are an integral part of the "employer's" business; (2) the amount of the "employee's" investment in facilities and equipment; (3) the nature and degree of control retained or exercised by the "employer"; (4) the "employee's" opportunities for profit or loss; (5) the amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise; and (6) the permanency and duration of the relationship. Mitchell v. Nutter, 161 F. Supp. 799, 805 (D.Me.1958). See Silk 331 U.S. at 716, 67 S.Ct. 1463 and Rutherford 331 U.S. at 729, 67 S.Ct. 1473, 91 L.Ed. 1772.
It is the view of this Court that the case at bar is controlled by United States v. Silk, supra, and the second case dealt with in the same opinion, Harrison v. Greyvan Lines, Inc., supra. Cf. Nat'l Van Lines Inc. v. N. L. R. B., 273 F.2d 402 (7th Cir. 1960) and Goldberg v. A. L. Bellotto, (Civil No. 4076, S.D.Fla., March 27, 1962). Silk involved truckmen who owned their own trucks and were engaged in making retail deliveries of coal from the defendant's coal yard at a uniform price per ton. The Greyvan truckmen also owned their own trucks and were engaged in transporting freight, largely household furniture, for the defendant common carrier at a percentage of the tariff charged by the company. Applying the above criteria, the Supreme Court held both groups of truckers to be independent contractors and not employees. Mr. Justice Reed, speaking for a majority of five Justices, stated the court's conclusion as follows:
"* * * where the arrangements leave the driver-owners so much responsibility for investment and management as here, they must be held to be independent contractors.16 These driver-owners are small businessmen. They own their own trucks. They hire their own helpers. In one instance they haul for a single business, in the other for any customer. The distinction, though important, is not controlling. It is the total situation, including the risk undertaken, the control exercised, the opportunity for profit from sound management, that marks these driver-owners as independent contractors." 331 U.S. at 719, 67 S.Ct. 1463.
"16 Compare United States v. Mutual Trucking Co., 6 Cir., 141 F.2d 655; Glenn v. Standard Oil Co., 6 Cir., 148 F. 2d 51."
Upon a comparison of the facts in the instant case with those in Silk and Greyvan, this Court finds them substantially indistinguishable. As in those *103 cases, while these truckers were from one standpoint an integral part of defendant's business, they were subject to no more control than was necessary to accomplish the results for which the trucks were hired. They had a sizeable investment in the trucks which they owned, they paid their own expenses, and their opportunities for profit and loss were to a substantial degree dependent upon their individual initiative, skill, judgment and foresight. Their relationship with defendant was essentially a transitory one. The record is replete with evidence of their independence; they rented their equipment to whoever paid the best price at the time, sometimes driving it themselves and sometimes hiring a driver. Perhaps most significantly, it is clear that these owner-operators operated under circumstances quite different from those of defendant's admitted employees. They performed different work and were subject to a minimum of control. Compare Tobin v. Anthony-Williams Mfg. Co., Inc., 196 F.2d 547 (8th Cir. 1952); Earle v. Babler, 180 F.2d 1016 (9th Cir. 1950); Mitchell v. Ry. Express Agency, 160 F. Supp. 628 (D.Me.1958) (Aldrich, D. J.). One must also conclude upon the entire record that the only difference between those who plaintiff contends are employees and those who it has stipulated are independent contractors is that the former rented defendant only one truck at one time. Silk and Greyvan make it clear that owner-operators of a single truck can be independent contractors under circumstances of independent operation.
In some respects the truckers in Silk and Greyvan, particularly those in Greyvan, were more closely integrated with the businesses there in question than were those in the case at bar. In Silk, the truckers collected and handled money for the company, and the company assumed responsibility for any damage caused by them. In Greyvan there were written contracts which required the truckers to haul exclusively for the company; to paint the name "Greyvan Lines" on their trucks; to collect moneys due the company and to post security therefor; to personally drive their trucks at all times, or to be present when a competent relief driver was driving (except in emergencies, when a substitute might be employed with the approval of the company); to obey the orders of the company's dispatchers with regard to their movements, and to report their positions at regular intervals; and to follow all rules, regulations and instructions of the company. The Greyvan truckers were members of a union, which was under contract with the company. They were required to take a course of instruction in the company's method of doing business, and a company manual purported to regulate in detail the performance of their duties. All permits, certificates and franchises were obtained at the company's expense, and insurance was carried under a blanket company policy, for which the truckers were charged proportionately. Finally, company trucks, driven by admitted company employees, were operated in the same manner as the trucks driven by the drivers in question.
Plaintiff places great emphasis on the purported distinctions that the Silk truckers could reject a job and that the Greyvan truckers hired helpers and made cross-country trips. Here, the truckers could reject a job also. Although no helpers were involved here, these owner-operators were not required to drive their trucks or to be present at all times, except in emergencies, as were the truckers in Greyvan. These owners were free to drive themselves or to send substitutes. The truckers in Silk made equally short hauls, and any inference of independent operation arising from the length of the trips in Greyvan is more than outweighed by the detailed manner in which those trips were supervised and controlled by the company.
The overall picture presented by the record in this case compels the conclusion that the status of the owner-operators in this case is not materially different from that of the truckers in Silk and *104 Greyvan. Like the drivers in Silk and Greyvan, these truckers are "small businessmen." Therefore this Court holds that the owner-operators involved in the present action are independent contractors, and not employees.
The Clerk is directed to enter judgment for the defendant
NOTES
[1] The relevant statutory provisions are as follows: 29 U.S.C.A. § 203:
"As used in this chapter
* * * * *
"(d) `Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee * * *.
"(e) `Employee' includes any individual employed by an employer.
* * * * *
"(g) `Employ' includes to suffer or permit to work."
[2] One of the drivers spent most of his time hauling crushed stone from the crusher to a stockpile within defendant's plant yard and was always paid upon an hourly rate. The overall characteristics of his operation are not such as to distinguish him from the other drivers, nor has plaintiff urged such a distinction.
[3] Plaintiff's contention does not include owner-operators who leased a second truck or equivalent piece of equipment to defendant. It does include those who leased a second truck or piece of equipment to other persons.
[4] It appears that four of these persons had never in fact driven on defendant's jobs during the period in question, and that of the remaining two, one had two trucks on defendant's jobs at one time. The record does not disclose the status of the other.
[5] While Silk and Greyvan deal with the employment relationship under the Social Security Act, Rutherford, which holds that certain meat-boners who worked in a slaughterhouse were employees under the Fair Labor Standards Act, makes it clear that cases defining the coverage of the employment relationship under the National Labor Relations and Social Security Acts are persuasive of a similar coverage under the Fair Labor Standards Act. 331 U.S. at 723, 67 S.Ct. 1463. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262743/ | 63 N.J. 235 (1973)
306 A.2d 443
DOROTHY KIMLEY, ADMINISTRATRIX, C.T.A., UNDER THE WILL OF FRANCES M. LULA, DECEASED, PLAINTIFF-RESPONDENT,
v.
EDWARD WHITTAKER, GEORGE WHITTAKER, MARY ROBERTSON, WILLIAM WHITTAKER, JOSEPH WHITTAKER, LILLIAN McFARLAND, CHESTER ROSEWALL, CHARLES ROSEWALL, AND THOMAS ROSEWALL, DEFENDANTS, AND MARY SMITH, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued April 23, 1973.
Decided June 26, 1973.
*236 Mr. Francis E. Malloy argued the cause for appellant.
Mr. Frank W. Thatcher argued the cause for respondent (Mr. D. Vincent Lazzaro, attorney).
*237 The opinion of the Court was delivered by SULLIVAN, J.
This is a will case. Decedent Frances M. Lula died August 30, 1970 leaving a will dated December 2, 1955 wherein she left her entire estate to her husband Walter, but made no provision for alternate disposition in the event he predeceased her. In fact, she survived her husband.[1]
The operative provisions of decedent's will, which was duly admitted to probate, are as follows:
"FOURTH: I do hereby give unto my husband Walter Anthony Lula all of the property, real, personal and mixed, together with all rights, titles and interest, of which I may die seized or possessed, or have any claim to or interest in without any restriction whatsoever, absolutely and in fee.
FIFTH: For reasons I care not to disclose, I hereby make no provision for my daughter, Mary Palmer, nor my grandchildren and it is my will that my daughter and grandchildren be deprived of any interest whatsoever that I may own at my death.
SIXTH: Those of my heirs not herein mentioned or provided for have been omitted by me with full knowledge thereof."
Decedent was survived by a daughter, Mary Palmer Smith, the appellant herein. She also left several half-brothers and half-sisters, and children of a deceased half-sister. All parties agreed that the bequest to the husband had lapsed and that the estate should be distributed under the statute governing the descent and distribution of intestate property. N.J.S.A. 3A:4-1 et seq. However, the half-brothers and half-sisters contended, and the trial court and Appellate Division held, that paragraph Fifth of decedent's will constituted a strong and unambiguous expression of intent to exclude decedent's daughter and the daughter's children from receiving any part of decedent's estate even though it was distributed as intestate property under the statute. The judgment was that the daughter, who normally would have *238 received the entire estate under the statute as the sole heir of decedent, was barred from inheriting. Instead, the estate was divided among decedent's half-brothers and half-sisters, the children of a deceased half-sister sharing per stirpes. We granted certification. 62 N.J. 188 (1972).
It is stated as a general rule in this country that an exclusionary provision in a will as to an heir or next-of-kin is not efficacious to bar that heir or next-of-kin from inheriting intestate property of the testator, even though so intended. 4 Page, Wills (Bowe-Parker Rev. 1961) § 30.17, p. 115. One reason given for the rule is that since the intestate property passes by law, not by will, the statute, not the testator, controls its distribution.
New Jersey cases dealing with the subject are not uniform in their approach. Some follow the general rule and state that words of exclusion or disinheritance in a will have no effect upon the right of an heir or next-of-kin to take under the statutes of descent and distribution that a testator's intention is of no force in such case. Lawes v. Lynch, 7 N.J. Super. 584, 590 (Ch. 1950), aff'd on other grounds 6 N.J. 1 (1950); Maxwell v. Maxwell, 122 N.J. Eq. 247, 254-255 (Ch. 1937); Skellenger's Executors v. Skellenger's Executor, 32 N.J. Eq. 659, 663 (Ch. 1880).
Other New Jersey cases state that the testator's intent would control, but that such intent must be clearly expressed and the words used free from doubt. Graydon's Ex'r v. Graydon, 25 N.J. Eq. 561, 564 (E. & A. 1874); Ward v. Dodd, 41 N.J. Eq. 414, 416 (Ch. 1886); Linell's Administrator v. Linell, 21 N.J. Eq. 81, 83 (Ch. 1870). Cf. Nagle v. Conard, 79 N.J. Eq. 124 (Ch. 1911), aff'd 80 N.J. Eq. 252; 80 N.J. Eq. 253 (E. & A. 1912). However, in none of these cases were the words used found to be free from doubt.
Presumably a testator seeks to avoid intestacy. It is difficult to conceive of a situation where a person executing a will would have in mind possible intestacy and not make some provision to avoid such possibility. In the rare situation where a testator would consider possible intestacy, but *239 make no provision for disposition in that event, it would be logical to assume that the testator was content to have the distribution provided for in the statute apply, and, to that extent, would be impliedly incorporating the statutory plan of disposition into the will. On this basis, a situation would never occur where the general rule cited in Page, supra, would really become applicable.
We do not agree that the will herein, as drawn, expressed the clear intent of the decedent that her only daughter (and the daughter's children) be excluded from inheritance of intestate property. The will is poorly drafted. It left the entire estate to decedent's husband, but made no provision for alternate disposition in the event the husband predeceased the testatrix, although it recognized that possibilnty by providing for a substitute executor should the husband, who was named as executor, not survive the testatrix.
Paragraph Fifth can be read as a confirmation of paragraph Fourth wherein the entire estate is left to the husband. In other words, the testatrix might have intended to indicate that she was aware of her daughter and grandchildren, but, nevertheless, wanted everything to go to her husband. The "reasons" for the exclusionary clause, which testatrix said she cared "not to disclose," might have been the husband's needs or mental or physical condition. It cannot be said that the paragraph clearly expressed the intent that the daughter (and her children) be excluded should the bequest to the husband lapse. The reference in paragraph Sixth to the knowing omission of "[t]hose of my heirs not herein mentioned or provided for" would seem to indicate that the decedent had in mind testamentary disposition only.
Respondent suggests that since the will made no provision over in the event the husband died first, decedent intended to have the statutory plan apply and her will should be construed so as to incorporate by reference the statute governing descent and distribution, but at the same time exclude Mary Palmer Smith from participation. Rowley v. Currie, 94 N.J. Eq. 606 (Ch. 1923). This contention is unsupported *240 by any evidence either extrinsic or found in the will itself. It is pure speculation to say that decedent had intestacy in mind.
Our conclusion is (1) that decedent did not incorporate the statutory scheme of distribution into her will to be applicable in the event her husband predeceased her, and (2) that paragraph Fifth of decedent's will does not contain a clear expression of intent that it was to be effective where an intestacy has come about and the estate is being distributed under the statute.
The judgment of the Appellate Division is reversed and the matter remanded to the trial court for entry of an appropriate judgment in favor of appellant.
For reversal and remandment Chief Justice WEINTRAUB, Justices JACOBS, PROCTOR, MOUNTAIN and SULLIVAN, and Judge COLLESTER 6.
For affirmance None.
NOTES
[1] The husband died a few hours prior to decedent's death. This is admitted to be pure coincidence as the deaths were unrelated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262969/ | 207 F.Supp. 648 (1962)
TOM LOCKERBIE, INC., Plaintiff,
v.
Frederick FRUHLING, John Frederic Dunckel, and Continental Equipment Corp., Defendants.
No. 58-C-287.
United States District Court E. D. Wisconsin.
August 28, 1962.
*649 Frank S. Andrus and Elwin A. Andrus, Milwaukee, Wis., for plaintiff, John P. Murphy, Washington, D. C., of counsel.
James E. Nilles of Lieber, Lieber & Nilles, Milwaukee, Wis., for defendants, *650 Suel O. Arnold, Milwaukee, Wis., of counsel.
GRUBB, District Judge.
This is an action for misappropriation of a trade secret and for infringement of U. S. Letters Patent No. 2,854,827, hereinafter referred to as the "Lockerbie" patent. The patent and trade secret in suit relate to an apparatus for cooling water to be circulated through a tank to an external heat exchanger, also known as an air agitated ice builder, commonly used in the dairy industry. Prior to trial the issue of damages was severed and reserved for consideration after judgment on the merits.
The court has jurisdiction of the parties and of the subject matter of this action under the patent laws of the United States.
Plaintiff, Tom Lockerbie, Inc., hereinafter referred to as "Lockerbie," is a New York corporation having its principal place of business in the City of Utica. It is the owner by assignment of the patent in issue. Defendant, Frederick Fruhling, a citizen of the State of Wisconsin, is the president and a majority stockholder of the corporate defendant, Continental Equipment Corp., a Wisconsin corporation having its principal place of business in the City of Milwaukee, hereinafter referred to as "Continental." Defendant, John Frederic Dunckel, is a citizen of Wisconsin. He is a former employee of Lockerbie, a coinventor of the patent in suit, and is presently employed as sales manager and purchasing agent of Continental.
The air agitated ice builder defined in the claim of the Lockerbie patent[*] consists of an insulated tank containing water, wherein a refrigerant coil is disposed in vertical banks of parallel loops. Ice forms and is stored on the vertical banks of the refrigerant coil. Water leaves the tank through an outlet pipe at a temperature of 32° to 34° F. It returns to the tank from the external heat exchanger at a warmer temperature of about 38° to 40° F., entering the tank through an inlet pipe.
Ice located near the warm water inlet melts more rapidly than that situated near the outlet in contact with already cooled water. Agitation of the circulating water prevents solid ice formations near the exit pipe and promotes the uniform melting of the ice banks throughout the tank which furthers the cooling of the water.
Agitation of the circulating water is accomplished by the introduction of air within the tank. The air agitation means consist of a plurality of elongated air lines or nozzles with small holes drilled in their circumference and supplied with pressurized gas. The nozzles are located on the bottom of the tank between the parallel banks of refrigerant coil. Bubbles of air are forced out of the small holes at a controlled rate and rise between the banks of ice formed on the refrigerant coil. The air bubbles provide uniform agitation of the water adjacent to the ice banks and promote the even melting thereof.
The trade secret allegedly misappropriated by defendants is as set forth in the following statement:
"Air agitators throughout the tank induced from the bottom, combined *651 with an arrangement of a plurality of spaced vertically arranged coils, between which the air agitation functions."
Defendant Dunckel was employed by Lockerbie in 1952 as a dairy equipment salesman. He was made secretary of the company in 1953 and vice president in 1956. Late in 1952, Dunckel, Thomas E. Lockerbie, who is plaintiff's president, and DeForrest G. Perryman developed and completed a working model of an air agitated ice builder of the type of apparatus defined by the patent in suit. Patent application Serial No. 395,184 in respect to this apparatus was filed on November 30, 1953. Dunckel assigned his interest therein to Thomas E. Lockerbie who later assigned the same to plaintiff. This application matured into the patent in suit which was issued on October 7, 1958.
During the course of his employment with Lockerbie, Dunckel's major experience was with the production and sale of the Lockerbie air agitated ice builder constructed in accordance with the specifications of the Lockerbie patent. Dunckel also made or supervised the making of all engineering drawings for this machine.
Dunckel and Fruhling had been acquainted since 1937 and, during the course of years, met occasionally at dairy shows. In May of 1957, while Dunckel was on a business trip for Lockerbie, he visited Fruhling at the Continental plant in Milwaukee.
In June 1957, Fruhling saw Dunckel at the Lockerbie plant in Utica, New York, and offered him a position with Continental which Dunckel accepted. Dunckel began his work at Continental on July 15, 1957, as sales manager and purchasing agent at a better salary than he had been receiving at Lockerbie.
At this time 90 per cent of Continental's dollar volume of business was concerned with bottle washers, 10 per cent with tanks, and a very small fraction with conveyors and conveyor chains. About one week after Dunckel began working at Continental, discussions were had regarding the feasibility of manufacturing air agitated ice builders in which Dunckel, Fruhling, and William Marx, Continental's chief engineer, participated. The decision to produce this machine was reached, principally by Fruhling, and the first drawings and preparations for production of the accused machines, the Continental air agitated ice builders, were undertaken in early August of 1957.
Marx and Dunckel collaborated on the design of the Continental machines. Dunckel made most of the drawings. In purchasing parts for the machines, Dunckel made some attempt to keep knowledge of Continental's new enterprise from Lockerbie.
The first Continental machine was completed and shipped to a customer in March 1958, and ten more machines were completed and sold by Continental prior to the date of issuance of the Lockerbie patent on October 7, 1958. Since issuance of the patent, ninety-five more Continental machines were produced and sold to date of trial.
Lockerbie claims infringement by all Continental machines manufactured and sold by defendants as well as misappropriation of its trade secret. Defendants deny the validity of the Lockerbie patent and further deny infringement and misappropriation. Defendant Fruhling asserts nonliability as to all claims, and defendant Dunckel claims nonliability as to any infringement. Lockerbie has raised an issue as to estoppel of the defendants to deny validity of the patent in suit.
VALIDITY AND ESTOPPEL
The assignor of a patent and his privies are estopped to deny validity of the assigned patent as against the assignee. The state of the art may, however, be resorted to in order to limit the scope of the claims of the assigned patent on the question of infringement. Westinghouse Electric & Manufacturing Co. v. Formica Insulation Co., 266 U.S. 342, 45 S.Ct. 117, 69 L.Ed. 316 *652 (1924). If it is shown that there is substantial identity of the assigned patent, the accused device, and of prior art in the public domain, the principle of estoppel to deny validity must yield to the public interest in the free enjoyment of public domain art. Scott Paper Co. v. Marcalus Manufacturing Co., Inc., 326 U.S. 249, 257, 66 S.Ct. 101, 90 L.Ed. 47 (1945); National Welding Equipment Co. v. Hammon Precision Equipment Co., 165 F.Supp. 788, 792 (N.D.Cal. 1958).
Considering all the evidence of record, and for reasons set forth with greater particularity hereafter, the court determines that defendants are not barred from denying validity of the Lockerbie patent because there is substantial identity between the disclosure of the single claim of the patent in suit, the accused machine, and a prior expired patent and other public domain art.
Defendants challenge the validity of the Lockerbie patent on the grounds of anticipation, obviousness of the subject matter, failure of the claim allowed to show patentable differences over rejected claims, and lack of specificity of the subject matter. They cite as prior art Borgerd Patent No. 2,077,871, issued April 20, 1937; the McCormick-Deering milk cooler, a machine manufactured by International Harvester Company, as shown in the instruction book for installation and operation published in 1937, which machine follows the Borgerd patent; a modified McCormick-Deering milk cooler purportedly used in Green Bay, Wisconsin, in 1936 or 1937; and a commercial water cooling machine manufactured by the Vilter Manufacturing Company of Milwaukee, Wisconsin, as shown by a drawing dated January 20, 1951.
The Borgerd patent and McCormick-Deering machine relate to a milk refrigerating cabinet employing an air agitation feature. This structure consists of an insulated tank containing water. A refrigerant coil containing a coolant is located inside and along the four walls of the tank in vertical banks of parallel planes. The air agitation means consist of a continuous perforated pipe in rectangular disposition at the bottom of the tank, located inwardly the banks of refrigerant coils in such proximity as to agitate the water adjacent to the coils on which ice banks are formed and stored. Objects of the Borgerd invention are the provision of means for rapidly transferring heat from containers of milk which are placed in the central portion of the tank to the ice banks and for air agitation of the water. The Borgerd patent also shows optional use of a baffle not shown in the McCormick-Deering machine for directing the stream of air bubbles to the walls of the ice banks.
The Vilter water cooling machine consists of an insulated tank through which water is circulated to an external heat exchanger. A refrigerant coil containing a coolant is disposed throughout the tank in vertical planes of parallel loops, and banks of ice form thereon. Agitation of the circulating water within the tank is performed by mechanical means and not by air agitation. Another apparatus, the CP compact ice builder, manufactured by The Creamery Package Mfg. Company of Chicago, Illinois, as shown by a manual entitled "Directions For Installing and Operating The CP Compact Ice Builder" (containing drawings dated 1947), is substantially similar to the Vilter machine. It also utilizes mechanical agitation of the water.
The court finds that the essence of the claimed invention of the Lockerbie patent consisting of the means, object, and function of the air agitation feature is substantially similar to the disclosure of the Borgerd patent and the structure of the McCormick-Deering machine. In each instance there is a refrigerant coil submerged in water in the shape of vertical banks of parallel planes of coil on which vertical banks of ice are formed. The object of air agitation is the uniform melting of the ice to promote the cooling of the water. This is accomplished by air bubbles escaping from air lines located below the site where the *653 ice banks form and in such proximity thereto that the bubbles of air will agitate the water adjacent the ice banks.
The differences between Lockerbie and Borgerd are not material to the air agitation principle which functions by basically similar means to accomplish similar objectives in these structures. Adaptation of the air agitation principle of Borgerd to a tank showing the disposition of the refrigerant coil, as in Lockerbie, does not constitute invention. The additional problem posed in Lockerbie by the uneven ice formation at various locations in the tank which results from the differences in temperature of the circulating water does not bring the application of the principle of air agitation under these circumstances within the area of novelty over the prior art. The baffle shown in Borgerd does not serve to channel or agitate the water but to direct the stream of air bubbles. It is not essential to the operation of the air agitation principle.
The evidence as to a McCormick-Deering milk cooler, modified to permit circulation of the cooled water to an external heat exchanger, purportedly in use in Green Bay, Wisconsin, in 1936 or 1937, does not establish this device as an instance of anticipatory prior art. The witness who testified to having seen the machine may not be characterized as disinterested since he is the chief engineer of a company presently manufacturing an air agitated ice builder essentially similar to the Lockerbie machine and to the accused device. The recollection of the witness was vague as to the number of these modified structures and as to the time of use. There is no documentary or other corroborating evidence of this structure. Although the testimony was not contradicted, it lacks definiteness necessary to establish prior use. Cf. Borkland v. Pedersen, 244 F. 2d 501, 503 (7th Cir.1957).
If the principal differences between the Lockerbie disclosure and that of the Borgerd patent the disposition of the refrigerant coil and air agitation means within the tank and the circulation of the water to an external heat exchanger were deemed sufficient to distinguish Borgerd as anticipatory art, the Lockerbie claim would nevertheless lack patentability because of obviousness of the subject matter. The Vilter and Creamery Package water coolers show structures substantially similar to that of Lockerbie in respect to the tank, placement of the refrigerant coil therein, and the circulating water. Adding the air agitation means of Borgerd situated in proximity to the banks of refrigerant coil as in the Vilter or Creamery Package machines to permit the air bubbles to agitate the water adjacent the ice formed on these banks of coil and eliminating the means of mechanical agitation does not constitute invention. In Lockerbie the old elements perform the identical function air agitation of water to promote the uniform melting of ice formed on banks of refrigerant coil to aid the cooling of the water in the tank by substantially similar means as in the prior art of Borgerd considered together with the Vilter apparatus. Combining the air agitation feature of Borgerd with the refrigerant coil structure of Vilter and adapting the air agitation means to accommodate the particularities of the Vilter coil structure and water circulation is within the competence of a person skilled in the art. This aggregation falls short of constituting patentable invention. Section 103, Title 35 U.S.C.A., and Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950).
Defendants' remaining objections to patentability essentially go to lack of invention or to obviousness, which questions have already been determined.
The presumption of validity ordinarily arising from issuance of the patent is clearly overcome in this case. Patentees' counsel distinguished the Borgerd reference before the patent office on the grounds that Borgerd showed the refrigerant coil arranged around the tank, that the ice banks were located at the ends of the cabinet, and that baffles were required for the rapid melting of the *654 ice, whereas in Lockerbie the refrigerant coil was placed transversely throughout the tank, and the need for baffles to effect the proper flow of water over the coils to promote the melting of the ice was eliminated.
Transverse placement of the coil throughout the entire tank, although indicated in the drawings of the Lockerbie patent, is not specified by the single claim which defines "a cooling coil uniformly disposed in said tank comprising a plurality of parallel loops disposed in parallel vertical planes." The Lockerbie claim language reads on Borgerd, on the Lockerbie structure, on the Vilter machine, and on the accused device. Assuming that the disposition of the refrigerant coil were a patentable distinction over Borgerd, the identical disposition is found in the Vilter apparatus which was not called to the attention of the patent office other than by reference to the mechanical agitation of the water employed in such devices. The pertinent art relevant to the refrigerant coil structure and water circulation was not before the examiner in this case.
Further, the emphasis on the baffle requirement in Borgerd was misleading. A reading of the Borgerd patent reveals that use of the baffle was optional in certain unspecified instances. The purpose of the baffle is the directing of the air stream and not the channeling or agitation of the water over the coils as in the mechanical agitation features of the earlier Vilter and Creamery Package machinery.
Additionally it may be noted that the distinction between Borgerd and Lockerbie made on the trial as to the circulation of the water to an external heat exchanger in Lockerbie apparently was not relied on by the patentees before the patent office.
The presumption of validity is weakened by the showing that the structure of Vilter and similar devices was not called to the attention of the patent office and that misleading emphasis was placed on the use of a baffle in the Borgerd reference before the patent office. Hyster Company v. Hunt Foods, Inc., 263 F.2d 130, 133 (7th Cir.1959). This weakened presumption of validity is overcome by evidence of record before this court that this prior art anticipates or renders obvious the subject matter of the claimed invention.
The prior art references are in the public domain the Borgerd patent by virtue of its expiration, the Vilter and Creamery Package machines by prior public use. Assuming the substantial identity of the Continental machines to the Lockerbie disclosure which is conceded by defendants for the purpose of determining the issue of estoppel to deny validity, it follows that there is substantial identity of means, function and objective of the accused device, the assigned patent, and the prior public domain art. Under these circumstances the assignor is not estopped to deny validity of the Lockerbie patent. Nonvalidity of the assigned patent for lack of invention and for obviousness of subject matter over the prior art has been established.
In the event the assignor Dunckel were estopped to deny validity of the Lockerbie patent, this estoppel would not be applicable against defendants Fruhling and Continental. Although Fruhling and Continental received the primary benefits derived from Dunckel's knowledge and experience as coinventor, producer, and seller of air agitated ice builders, the relationship between the parties does not establish the requisite privity for extending the estoppel to them. Fruhling and Continental are not the instrumentalities of Dunckel in carrying out the alleged infringement of plaintiff's patent claim. Dunckel is a mere employee of Continental. An annual bonus paid him by Continental is not the equivalent of an owner's share of the profits of Continental. Dunckel is no more than a valued employee in a responsible position. Under these circumstances, Dunckel, Fruhling, and Continental cannot be considered joint venturers in carrying out infringement or sharers of the profits derived therefrom. *655 Macey Co. v. Globe-Wernicke Co., 180 F. 401, 407 (7th Cir.1910); American Machinery Co., Inc. v. Everedy Mach. Co., 35 F.2d 526 (E.D.Pa.1929); and see the definition of "privity" stated in Douglass v. United States Appliance Corporation, 177 F.2d 98, 101 (9th Cir. 1949).
INFRINGEMENT AND FILE WRAPPER ESTOPPEL
Defendants contend that in the event the Lockerbie patent were valid, there could be no infringement of its claim by the accused machines because eleven of the Continental machines were manufactured and sold prior to issuance of the patent in suit and because there is file wrapper estoppel to claim infringement as to the ninety-five post-patent issuance devices.
The claim of the Lockerbie patent reads on the eleven pre-patent issuance Continental machines. In these devices, as in Lockerbie, air agitation is performed by means of gaseous bubbles released from air lines located below and between vertical banks of refrigerant coil submerged in circulating water in an insulated tank, resulting in agitation of the water adjacent to the ice formed on the coil to promote the even melting thereof. The real identity of means, operation, and result would suffice to support a claim of infringement if the patent in suit were valid and the claim might otherwise be maintained. Scherbatskoy v. United States Steel Corporation, 287 F.2d 552, 558 (7th Cir.1961).
It is well settled that there can be no infringement of any patent claim prior to issuance of the patent. Lockerbie contends that the circumstances of this case bring it within an exception to this rule because the coinventor and assignor disclosed his knowledge of the invention and participated directly in the preparation and sale of the accused devices on behalf of defendant Continental prior to issuance of the patent. Dunckel's activities may be deemed in breach of an implied promise not to disclose the confidential subject matter of the patent application or to use his knowledge thereof contrary to the interests of the coinventors or of the assignee. A charge of infringement may be predicated on this conduct in respect to accused devices prior to issuance of the patent. Compare Ackermans v. General Motors Corp., 202 F.2d 642, 645 (4th Cir.1953), and Picard v. United Aircraft Corporation, 128 F.2d 632, 637 (2d Cir.1942), cert. denied 317 U.S. 651, 63 S.Ct. 46, 87 L.Ed. 524 (1942). These cases indicate that there may be liability for damages for infringement prior to issuance of a patent in case of a breach of an implied promise not to disclose the confidential information of the invention if the patent were held valid.
Continental machines manufactured after issuance of the Lockerbie patent differ in one respect from those produced prior to that date and from the specifications of Lockerbie. In these later Continental machines, the air nozzles are located directly below the banks of coil on which the ice is formed rather than between said banks. The change was made to achieve greater efficiency in operation and manufacturing economy and to avoid patent infringement.
The relocation of the air nozzles does not change the basic structure of the means, operation, or objective of the air agitation feature. An improvement of this nature falls within the doctrine of equivalents and does not ordinarily avoid a charge of infringement. Defendants contend, however, that Lockerbie is estopped to rely on the doctrine of equivalents because the patentees disclaimed a general location of the air nozzles as "disposed evenly at the bottom of the tank" in favor of the precise position specified as "between" the parallel planes of refrigerant coil.
The patent file reveals that the patentees withdrew the former claim because of the examiner's objections on the ground of certain prior art references, not cited to this court, and because the claim failed to clearly define the invention, since the relationship of the refrigerating coil to the rest of the structure *656 had not been set forth definitely. The latter objection of indefiniteness was met in the allowed claim by specification of the disposition of the refrigerant coil. Additionally, the patentees defined a specific location of the air nozzles, presumably in response to the objection of indefiniteness of the structure.
The change in the Continental machines, made after issuance of the Lockerbie patent, consists of a minor structural improvement which does not affect the basic means, operation, or objective of the air agitation feature. An attempt to avoid infringement was one motive for incorporating this difference. Under these circumstances, if the patent were valid, and considering the patent claim in light of its file wrapper history, the patent owner would not be estopped from claiming infringement because of this minor variation. See Rohm & Haas Company v. The Permutit Company, 130 F.Supp. 260 (D.Del. 1954).
TRADE SECRET
The subject matter of the alleged trade secret which is substantially similar to the claimed invention of the Lockerbie patent was fully and publicly disclosed in Lockerbie's trade literature during the course of Dunckel's employment with plaintiff. Further, the court has determined that this subject matter was not novel or nonobvious to persons skilled in the art of air agitated ice builders. There can be no recovery for alleged misappropriation unless the claimed trade secret was in fact secret and confidential.
Plaintiff contends that Dunckel is chargeable with disloyalty to his former employer, Lockerbie. It has not been shown that Dunckel was under contractual or other obligation not to terminate his employment at will and not to use any skill and knowledge he possessed to participate in competition with plaintiff. Insofar as these competitive activities involved disclosure of the subject matter of the assigned patent application, this disclosure would be actionable, if at all, under the law of patents or contracts and not of unfair competition. Cf. Booth v. Stutz Motor Car Co. of America, Inc., 56 F.2d 962 (7th Cir. 1932), where the actionable confidential disclosure involved matters independent of invalid patent rights thereon.
LIABILITY
Defendant Dunckel claims nonliability as to any infringement because he was a mere employee of the corporate defendant Continental.
If the Lockerbie patent were valid, liability for infringment by post-patent issuance machines would be avoided because Dunckel did not have direction or control over the affairs of the corporate defendant and because he did not directly participate in any benefits derived from the alleged infringement.
With respect to infringement by pre-patent issuance devices, however, Dunckel's role in the manufacture and sale of said machines had another aspect than that of the employment relationship. Although holding the position of sales manager and purchasing agent, Dunckel personally participated in the discussions leading to Continental's manufacture of air agitated ice builders, prepared the drawings therefor and otherwise used his knowledge of the information of the patent application disclosure to aid Continental in getting a head start in placing these accused devices on the market. Under these circumstances, Dunckel's activities in respect to the early Continental machines would support a charge of infringement based on the breach of his implied promise as coinventor and assignor not to disclose the confidential subject matter of the patent application or to participate in an adverse use thereof if the Lockerbie patent were valid. See Ackermans v. General Motors Corp., 202 F. 2d 642, 645 (4th Cir.1953).
Defendant Fruhling is not chargeable with personal liability in this case. It has not been shown that Fruhling acted beyond the scope of his duties *657 as president and stockholder of Continental in inducing Dunckel, who was not under contract to Lockerbie, to accept a more favorable position with Continental, or in deciding that Continental was to undertake a new manufacturing line of air agitated ice builders which constituted 10 per cent of the business of the already established solvent corporation. See Powder Power Tool Corporation v. Powder Actuated Tool Company, Inc., 230 F.2d 409, 414 (7th Cir.1956).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
While the foregoing decision sets forth in detail the court's findings of fact and conclusions of law, they may be summarized as follows.
FINDINGS OF FACT
1. This action is for unfair competition and for patent infringement.
2. The action arises under the patent laws of the United States.
3. The subject matter of the single claim of the Lockerbie patent reads on the prior art of the Borgerd patent and the McCormick-Deering milk cooling machine.
4. Treating the subject matter of the claim of the Lockerbie patent as consisting of separate elements, the court finds that the elements of structure and disposition of a refrigerant coil in an insulated tank through which water is recirculated to an external heat exchanger and the air agitation means within said tank, consisting of air nozzles disposed in specific relation to the refrigerant coil structure, are disclosed in the prior art of the Borgerd patent considered together with the Vilter water cooling machine. Further, the separate elements perform the same function in the Lockerbie patent structure as in the prior art the cooling of water by the uniform melting of ice banks formed on the refrigerant coil by gaseous agitation of the water adjacent to the ice banks.
5. The prior art of the Vilter water cooling machine and similar devices was not before the patent office, and there was misunderstanding as to the significance of the use of a baffle in the Borgerd patent during the proceedings on the application for the Lockerbie patent.
6. The prior art references of the Borgerd patent and the Vilter water cooling machine were in the public domain prior to the development of the subject matter of the Lockerbie patent and the filing of the patent application therefor.
7. Defendants Continental and Fruhling do not stand in the relationship of joint venturers with Dunckel and are not the instrumentalities of Dunckel in the manufacture and sale of the accused devices.
8. The specifications of the claim of the Lockerbie patent read on the eleven Continental machines manufactured and sold prior to issuance of the Lockerbie patent.
9. Dunckel disclosed the information of the patent application and participated in the use thereof adversely to the interests of his coinventors and of his assignee prior to issuance of the Lockerbie patent.
10. There is substantial identity of means, operation, and result not affected by a change in location of air nozzles between the Lockerbie patent and the ninety-five Continental machines manufactured after issuance of the Lockerbie patent.
11. One of defendants' motives in changing the location of the air nozzles in the later Continental machine was the avoidance of infringement.
12. Disclaimer of prior patent application claim and amendment specifying precise location of air nozzle was not in response to an objection based on prior art in proceedings before the patent office.
13. The subject matter of the alleged trade secret was fully and publicly disclosed prior to alleged misappropriation thereof by Dunckel.
*658 14. Defendant Fruhling acted within the scope of his duties as president and stockholder of the corporate defendant in the preparation for and the manufacture and sale of the accused devices.
CONCLUSIONS OF LAW
1. The court has jurisdiction of the subject matter of this action and over the parties.
2. The patent in issue is invalid for lack of invention over the prior art.
3. The patent in issue is invalid because of the obviousness of its subject matter to a person skilled in the art in light of the old elements aggregated in Lockerbie which are found in the prior art.
4. The presumption of validity arising from issuance of the Lockerbie patent is weakened because pertinent art was not before the patent office. This presumption was overcome by a clear showing of lack of invention and obviousness on the record in this case.
5. Defendant Dunckel, the assignor of the patent in suit, is not estopped to deny validity of the assigned patent.
6. If defendant Dunckel were estopped to deny validity, the estoppel would not be applicable to defendants Continental and Fruhling because they are not in privity with Dunckel.
7. If the patent in issue were valid, there would be infringement of its claim by the manufacture and sale of Continental machines prior to issuance of the Lockerbie patent because of Dunckel's disclosure and use of patent application information in breach of implied promise to hold such information confidential. Dunckel personally, as well as the corporate defendant, would be liable for infringement by prepatent issuance machines.
8. If the patent were valid, there would be no estoppel by file wrapper history to claim infringement by device showing minor technical change within range of equivalents of claim of Lockerbie patent.
9. Ninety-five Continental machines manufactured after issuance of patent would infringe said patent if it were valid.
10. The disclosure and use of nonsecret and nonconfidential subject matter are not actionable.
11. Defendant Fruhling would not be personally liable for infringement of the claim of the Lockerbie patent if said patent were valid or for misappropriation of any trade secret if said cause were actionable.
The clerk is hereby directed to enter judgment in accordance with the foregoing findings of fact and conclusions of law for the defendants and each of them, dismissing the action and for their costs and disbursements herein.
NOTES
[*] The single claim of the Lockerbie patent reads as follows:
"In a cooling system, an insulated tank having a lower inlet opening and upper outlet opening respectively through which circulating water enters the tank at a higher temperature than which it leaves the tank, a cooling coil uniformly disposed in said tank comprising a plurality of parallel loops disposed in parallel vertical planes, means connected to said coil for circulating a coolant there through for forming ice banks uniformly on said loops, and water agitating means in said tank for uniformly agitating the water as it is circulated in contact with ice formed on said loops to promote even melting of ice thereon, said agitating means comprising a plurality of uniformly disposed elongated nozzles at the bottom of the tank interposed between the parallel planes of the loops of said coil, and a source of pressurized gas operatively connected to said nozzles for percolating bubbles of pressurized gas uniformly past the coil loops as water is circulated through said tank." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262779/ | 83 Cal.Rptr.2d 433 (1999)
71 Cal.App.4th 1
The PEOPLE, Plaintiff and Respondent,
v.
Koy LENG, Defendant and Appellant.
No. F029570.
Court of Appeal, Fifth District.
March 30, 1999.
As Modified on Denial of Rehearing April 28, 1999.
*435 Victor S. Haltom, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
OPINION
HARRIS, J.
INTRODUCTION
Penal Code section 667, subdivision (d)(3) provides that a prior juvenile adjudication may constitute a strike if the offense is contained within Welfare and Institutions Code section 707, subdivision (b), or defined as a serious or violent felony by Penal Code sections 667.5 or 1192.7.[1] In this case, appellant Koy Leng's prior juvenile adjudication was not proved to be either a serious or violent felony offense, but it was an offense enumerated in Welfare and Institutions Code section 707, subdivision (b). Appellant asserts the use of a nonserious, nonviolent juvenile adjudication to impose a second strike sentence is contrary to the intent of the three strikes law and violates his right to equal protection of the laws. We agree and will *436 reverse and remand the matter for further proceedings.
STATEMENT OF THE CASE
On July 2, 1997, an information was filed in Fresno County Superior Court charging appellant Koy Leng with five felony offenses. Counts I and II each alleged a violation of section 246 (discharging a firearm at an inhabited dwelling place and discharging a firearm at an occupied vehicle, respectively); counts III and IV each alleged a violation of section 245, subdivision (b) (assault with a semi-automatic firearm); and count V alleged a violation of section 246.3 (discharge of a firearm in a grossly negligent manner). Counts III and IV alleged appellant personally used a firearm within the meaning of section 12022.5, subdivision (a).
On July 7, 1997, appellant entered a not guilty plea.
On September 2, 1997, appellant was arraigned on a first amended information.[2] It contained the same five felony counts and enhancements as the original information. The first amended information further alleged that "on or about February 29, 1992," appellant had suffered a juvenile adjudication for violation of section 245, subdivision (a)(1), a serious felony conviction within the meaning of section 667, subdivisions (b)-(i) and section 1170.12, subdivisions (a) through (e).[3] Appellant pleaded not guilty. The court granted appellant's motion to bifurcate trial on the prior felony conviction allegation. Jury trial commenced. On September 5, 1997, counts III and IV were amended by interlineation to allege Ricky Du and Andell Vongsynha as being the victims in those counts, respectively.
On September 5, 1997, the jury returned guilty verdicts on counts I, III and V and found the section 12022.5, subdivision (a) enhancement to be true as to count III; not guilty verdicts were returned on counts II and IV. Appellant waived jury trial on the prior conviction allegation. After receiving evidence and hearing argument, the court found the prior conviction allegation to be true, the court specifically finding that the juvenile violation of section 245, subdivision (a)(1) occurred on February 29, 1992, the adjudication thereof occurred on March 25, 1992, and that at both times appellant was over the age of 16 and found a fit and proper subject to be dealt with in juvenile court.
Sentencing was held on October 31, 1997. The court declined to exercise its discretion to strike the prior conviction allegation. Count III was selected as the principal term. Appellant was thereafter sentenced to a total term of 22 years imprisonment, calculated as follows: on count III, the middle term of six years, doubled, plus the aggravated ten-year term for the section 12022.5, subdivision (a) enhancement. The court imposed a concurrent term of 10 years for count I. A concurrent four-year term on count V was stayed pursuant to section 654.
Timely notice of appeal was filed on November 4,1997.
FACTS
On the evening of January 10, 1997, Phoungeun (Vicky) Sisavaddy[4] allowed her 16-year-old sister, Elizabeth, to have a party at her residence which was located at 8896 North Archie, in Fresno. Around midnight, *437 Vicky and her roommates ended the party because some underage guests were drinking alcohol. Instead of leaving, the guests congregated in front of the house. Vicky went outside with her friend, Frank Aleman. Aleman discovered his car had been vandalized; he became upset, went into the house, came back out with a gun and demanded the people leave. Aleman then went back into the house. Subsequently, while standing in the driveway, Vicky saw appellant walk toward her house from the other side of the street. He was staring at Frank Aleman, who was then standing in the house. Appellant was holding something black behind his back. Vicky told appellant to leave and tried to push him back off the driveway. It was then that she realized appellant was holding a gun. Four males came over and pulled appellant toward a car. When appellant was approximately 25 feet away from Vicky, he fired multiple shots straight toward the house where Frank was standing. One bullet grazed Elizabeth's face; another, or a fragment, bruised Ricky Du's buttocks, and a third grazed one of Jerry Yang's fingers. The house itself was also hit. Appellant and the four males got in the car and left.
Later that evening, some shots were fired from a car at an older BMW vehicle in which some party guests were riding.
Appellant was arrested on January 14, 1997. A nine millimeter semi-automatic handgun was found in the trunk of his car. Rounds fired from this gun matched shell casings found at the North Archie residence after the shooting.
In an interview after his arrest appellant admitted firing the gun at the party approximately 10 times. However, he claimed that he had held the gun above his head and fired into the air. He knew there were people inside the residence and scattered over the yard area. He was not concerned about this because "he was aiming high and that he wasn't going to hit anybody." He denied shooting at the BMW and disclaimed any knowledge as to who was involved in that incident.
DISCUSSION
I.
JUVENILE ADJUDICATIONS MUST BE FOR SERIOUS OR VIOLENT OFENSES TO CONSTITUTE STRIKES
Appellant was subjected to a second strike sentence based on the trial court's finding that his prior juvenile adjudication for assault constituted a strike within the meaning of the three strikes law. Appellant challenges the evidence regarding the nature of this prior offense, but also raises constitutional issues regarding the application of the three strikes law to this type of juvenile adjudication. We are thus presented with an issue of first impression: whether a juvenile adjudication for a nonserious, nonviolent felony offense may constitute a strike within the meaning of the three strikes law.
A. Factual background
The amended information alleged appellant suffered a prior juvenile adjudication based on a violation of section 245, subdivision (a)(1), and that such an adjudication constituted a strike within the meaning of the three strikes law. Properly admitted evidence shows that on March 25, 1992, appellant, then 17 years old, entered a negotiated plea in the juvenile court whereby he admitted violating section 245, subdivision (a)(1), assault with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury. He did not admit personally using a weapon or inflicting great bodily injury.
At the bifurcated hearing on the strike allegation, appellant asserted the juvenile adjudication could not be treated as a strike because it was not a serious or violent felony within the meaning of the three strikes law, and such a finding would violate his right to equal protection. The prosecution asserted the juvenile adjudication for assault was within the meaning of Welfare and Institutions Code section 707, subdivision (b), and thus constituted a strike pursuant to the express terms of section 667, subdivision (d)(3).
*438 The trial court acknowledged appellant's equal protection argument but found that the Legislature could validly distinguish between the offenses and penalties imposed against juvenile and adult offenders. The court found appellant's prior juvenile adjudication constituted a strike, and imposed the appropriate second strike term. The trial court reasoned that section 667, subdivision (d)(3) states that juvenile offenses listed in subdivision (b) of section 707 of the Welfare and Institutions Code shall constitute strikes. Welfare and Institutions Code section 707, subdivision (b)(14) lists "[a]ssault by any means of force likely to produce great bodily injury." Accordingly, the court found the prior juvenile adjudication was a strike prior.
Against this background, appellant asserts the prosecution failed to prove his prior juvenile adjudication for assault constituted a serious or violent felony within the meaning of the three strikes law. Appellant reasserts his equal protection challenge and argues that a prior juvenile adjudication must be for a serious or violent offense in order to constitute a strike.
B. Failure to prove the prior juvenile adjudication was for a serious or violent felony offense
Appellant contends the prosecution failed to prove his prior juvenile adjudication for assault constituted a serious or violent felony within the meaning of the three strikes law. Respondent asserts the trial court impliedly found the prior juvenile adjudication constituted a serious felony, and admitted various documents from the juvenile record which establish the requisite proof that the offense was a serious felony.
A violation of section 245, subdivision (a)(1) is a serious felony only if the prosecution properly pleads and proves that the defendant "personally inflict[ed] great bodily injury on any person, other than an accomplice, or ... personally use[d] a firearm" (§ 1192.7, subd. (c)(8)), or "personally used a dangerous or deadly weapon" (§ 1192.7, subd. (c)(23)). (People v. Rodriguez (1998) 17 Cal.4th 253, 261, 70 Cal. Rptr.2d 334, 949 P.2d 31; People v. Williams (1990) 222 Cal.App.3d 911, 914-915, 272 Cal. Rptr. 212.) "One may thus violate section 245(a)(1) in two ways that would not qualify as `serious' felonies under section 1192.7, subdivision (c): First, one may aid and abet the assault without personally inflicting great bodily harm or using a firearm. Second, one may commit the assault with force `likely' to cause great bodily injury without, however, actually causing great bodily injury or using a deadly weapon. Accordingly, the least adjudicated elements of the crime defined in section 245(a)(1) are insufficient to establish a `serious' felony. [Citations.]" (People v. Rodriguez, supra, 17 Cal.4th at p. 261, 70 Cal.Rptr.2d 334, 949 P.2d 31.) However, the prosecution is entitled to go beyond the least adjudicated elements of the prior conviction and use the entire record to prove that the defendant had in fact personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) or personally used a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)). (People's. Rodriguez, supra, 17 Cal.4th at pp. 261-262, 70 Cal.Rptr.2d 334, 949 P.2d 31; People v. Guerrero (1988) 44 Cal.3d 343, 355-356, 243 Cal.Rptr. 688, 748 P.2d 1150.)
The trial court herein did not explicitly or implicitly find that appellant's prior juvenile adjudication constituted a serious felony within the meaning of section 1192.7, subdivisions (c)(8) or (23). The trial court noted that "Penal Code Section 245(A)(1) is not listed in 1192.7(c) as a serious felony," and "there is a discrepancy between that which apparently applies to adults as opposed to those that apply to juveniles" and "there may appear to be due process or fundamental fairness issues here." In addition, the prosecution did not plead or prove that appellant personally used a deadly weapon or personally inflicted great bodily injury during the juvenile assault. The prosecution sought to introduce various documents from the juvenile record, and argued such documents were relevant to prove appellant indeed suffered the juvenile adjudication. However, the trial court only admitted the juvenile petition and prior orders reflecting the simple fact of the juvenile adjudication for assault. The court declined to admit that portion of the documents on which respondent presently relies in asserting the underlying adjudication was *439 a serious felony.[5] Accordingly, we reject respondent's argument that the trial court impliedly found the prior juvenile adjudication constituted a strike because it was a serious felony within the meaning of section 1192.7, or that sufficient evidence exists in the record herein to establish that fact.
C. A nonserious, nonviolent juvenile adjudication cannot be a strike
Having resolved the introductory points, we now turn to the heart of the issue: may prior juvenile adjudications for offenses which are neither serious nor violent felonies within the meaning of sections 667.5 or 1192.7, but which are listed in Welfare and Institutions Code section 707, subdivision (b), constitute strike priors within the meaning of section 667, subdivision (d)(3)? We answer this question in the negative.
In resolving this question, we must consider section 667, subdivision (d)(3) of the three strikes law in the context of the Legislature's intent and the entire statutory framework in which it appears. Section 667, subdivision (b) states: "It is the intent of the Legislature in enacting subdivisions (b) to, (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." Subdivision (d)(1) provides, in relevant part, that "[a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state" is a strike prior. Subdivision (d)(2) provides that a conviction in another jurisdiction is a strike prior if it includes all the elements of the particular felony as defined in sections 667.5, subdivision (c) and section 1192.7, subdivision (c).
Section 667, subdivision (d)(3) provides that a prior juvenile adjudication shall constitute a prior felony conviction for purposes of the three strikes law if four criterion are met: (A) the juvenile was 16 years of age or older at the time he or she committed the prior offense; (B) the prior offense is listed in subdivision (b) of section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) of subdivision (d) of section 667 as a felony; (C) the juvenile was found to be fit to be dealt with in the juvenile court; and (D) the juvenile was adjudged a ward of the juvenile court because he or she committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code. Thus, section 667, subdivision (d)(3) provides that a prior juvenile adjudication may constitute a strike if it is delineated within Welfare and Institutions Code section 707, subdivision (b), or defined as a serious or violent felony by sections 667.5 or 1192.7.
We have already determined the prosecution failed to introduce evidence to establish appellant's prior juvenile adjudication constituted a serious felony pursuant to section 1192.7, subdivision (c). Respondent asserts appellant's juvenile adjudication for assault still constitutes a strike because it is delineated in Welfare and Institutions Code section 707, subdivision (b), regardless of its status as a serious or violent felony.
However, such a broad and literal construction of section 667, subdivision (d)(3) would infringe upon a defendant's right to equal protection of the laws as protected by the Fourteenth Amendment of the United States Constitution and article I, section 7 of the California Constitution. The equal protection guarantees of the Fourteenth Amendment and the California Constitution are substantially equivalent and analyzed in a similar fashion. (In re Demergian (1989) 48 Cal.3d 284, 291-292, 256 Cal.Rptr. 392, 768 P.2d 1069; Kenneally v. Medical Board (1994) 27 Cal.App.4th 489, 495, 32 Cal. Rptr.2d 504.) "The constitutional guaranty of equal protection of the laws has been judicially defined to mean that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness. [Citations.]" (People v. Romo (1975) 14 Cal.3d 189, 196, 121 Cal.Rptr. 111, 534 P.2d 1015.) The concept recognizes that persons similarly *440 situated not be treated differently unless the disparity is justified. (In re Eric J. (1979) 25 Cal.3d 522, 531, 159 Cal.Rptr. 317, 601 P.2d 549; People v. Nguyen (1997) 54 Cal.App.4th 705, 714, 63 Cal.Rptr.2d 173; Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 914, 13 Cal.Rptr.2d 245, 838 P.2d 1198.)
In considering an equal protection challenge, we must first determine the appropriate standard of review, which depends upon the classification involved in, and the interests affected by, the challenged law. (Bowens v. Superior Court (1991) 1 Cal.4th 36, 42, 2 Cal.Rptr.2d 376, 820 P.2d 600; Kenneally v. Medical Board, supra, 27 Cal. App.4th 489, 495, 32 Cal.Rptr.2d 504.) Personal liberty is a fundamental right, and a classification infringing on such a right is subject to strict judicial scrutiny. (People v. Olivas (1976) 17 Cal.3d 236, 250-251, 131 Cal.Rptr. 55, 551 P.2d 375; Board of Supervisors v. Local Agency Formation Com., supra, 3 Cal.4th at p. 913, 13 Cal.Rptr.2d 245, 838 P.2d 1198; People v. Nguyen, supra, 54 Cal.App.4th at pp. 715-716, 63 Cal.Rptr.2d 173.) Under this very severe standard, a discriminatory law will not be given effect unless the state establishes the classification bears a close relation to the promotion of a compelling state interest, the classification is necessary to achieve the government's goal, and the classification is narrowly drawn to achieve the goal by the least restrictive means possible. (Board of Supervisors v. Local Agency Formation Com., supra, 3 Cal.4th at p. 913, 13 Cal.Rptr.2d 245, 838 P.2d 1198; People v. Nguyen, supra, 54 Cal. App.4th at p. 716, 63 Cal.Rptr.2d 173.) All other legislation satisfies the requirements of equal protection if it bears a rational relationship to a legitimate state interest. (People v. Bell (1996) 45 Cal.App.4th 1030, 1046-1047, 53 Cal.Rptr.2d 156.)
Appellant received a second strike sentence based on the trial court's finding that his prior juvenile adjudication for assault was within Welfare and Institutions Code section 707, subdivision (b), and thus constituted a strike pursuant to section 667, subdivision (d)(3). However, the prosecution failed to introduce any evidence to establish the serious or violent nature of the underlying adjudication. Under the same set of circumstances, the court would not have been able to impose the same second strike sentence on an individual who had suffered a prior conviction for assault as an adult, unless the prosecution had proved the serious or violent nature of the prior offense. Thus, section 667, subdivision (d)(3) treats the personal liberty of similarly situated parties in a disparate manner.
The classifications created by the three strikes law for recidivist offenders have survived equal protection challenges based on the state's strong and compelling interest in protecting its citizens from the harm associated with serious or violent criminal conduct. (People v. Nguyen, supra, 54 Cal.App.4th at pp. 718-719, 63 Cal.Rptr.2d 173; People v. Cooper (1996) 43 Cal.App.4th 815, 828-830, 51 Cal.Rptr.2d 106.) "The law we are reviewing classifies persons who have committed a serious or violent felony in the past separately from other recidivists, singling them out for greater punishment. There is no doubt but that a legislative body (or the people acting collectively in that capacity through the initiative process) may enact such a law." (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1331, 49 Cal.Rptr.2d 152.) "[A] recidivist with two prior serious felony convictions is not comparable to a recidivist with prior nonserious felony convictions.... Violent and serious felony offenses differ from other offenses in many ways, including the reasons and motives of the criminal, the outrage and harm to the victim, and the potential for danger to the victim and society in general. Such differences warrant different treatment." (People v. Cooper, supra, 43 Cal.App.4th at p. 829, 51 Cal.Rptr.2d 106.) "The three strikes law is the Legislature's attempt to address the threat to society posed by the class of persons previously convicted of serious or violent felonies. There is no invidious classification or equal protection violation involved in that lawmaking." (Ibid.
Section 667, subdivision (d)(3) runs afoul of this compelling state interest by including nonserious, nonviolent juvenile adjudications as strikes. Such a classification is not necessary *441 or narrowly drawn to achieve the express purpose of the three strikes law of ensuring "longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." (§ 667, subd. (b), italics added.) If all of the offenses listed in Welfare and Institutions Code section 707, subdivision (b) were to be considered as strikes, it would expand the list of qualifying strike offenses beyond serious or violent felonies. An adult offender, who, as a juvenile, committed a crime listed in Welfare and Institutions Code section 707, subdivision (b) but not defined as a serious or violent felony pursuant to sections 667.5 or 1192.7, would be treated more harshly than an adult offender who had committed the same prior offense as an adult. For example, dissuading a witness and inducing false testimony would be strike offenses if committed while the accused was a juvenile. Yet, those same crimes would not be strike priors if committed after the accused reached his or her majority. (Welf. & Inst.Code, § 707, subd. (b)(19).) We can discern no compelling state interest, or even a legitimate basis, for punishing people more harshly under the three strikes law simply because they committed one of these offenses while still subject to the juvenile law.
While the trial court acknowledged this disparity in the three strikes law, it rejected appellant's equal protection argument because the Legislature may validly distinguish between the offenses and penalties imposed against juvenile and adult offenders. (See In re Eric J., supra, 25 Cal.3d at p. 530, 159 Cal.Rptr. 317, 601 P.2d 549.) The trial court's finding was predicated on the well recognized principle that "[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J., supra, 25 Cal.3d at p. 530, 159 Cal.Rptr. 317, 601 P.2d 549.) Our review of section 667, subdivision (d)(3), however, is not concerned with a comparison of the offenses and penalties imposed against juvenile and adult offenders, but with the disparate treatment of adult offenders alleged to be within the ambit of the three strikes law. In such a case, the adult offenders are similarly situated but subject to unequal treatment because of the nature of the underlying strike offense. Such an interpretation of section 667, subdivision (d)(3) is clearly violative of a defendant's right to equal protection of the laws.[6]
A statute must be interpreted in a manner which, whenever possible, preserves its constitutionality. (Chahine v. State Bd. of Equalization (1990) 222 Cal. App.3d 485, 490, 272 Cal.Rptr. 56.) Reviewing courts have the authority to reform a statute to protect against invalidation under the Constitution when it can be determined with confidence that it is possible to reform the statute in a manner which closely effectuates policy judgments clearly articulated by the enacting body and the enacting body would have preferred the reformed construction to invalidation of the statute. (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 660-661, 670, 47 Cal.Rptr.2d 108, 905 P.2d 1248.) "[C]ourts may legitimately employ the power to reform in order to effectuate policy judgments clearly articulated by the Legislature or electorate, when invalidating a statute would be far more destructive of the electorate's will." (Id. at p. 661, 47 Cal.Rptr.2d 108, 905 P.2d 1248.)
The well-recognized purpose of the three strikes law is to provide increased punishment for current offenders who have previously committed violent or serious crimes and have therefore not been rehabilitated or deterred from further criminal activity as a result of their prior imprisonment. (People v. Davis (1997) 15 Cal.4th 1096, 1099, 64 Cal.Rptr.2d 879, 938 P.2d 938.) It thus becomes clear that the reference in section 667, subdivision (d)(3) to crimes listed in Welfare and Institutions Code section 707, subdivision (b) implicitly includes a requirement *442 that such crimes must also be serious or violent felonies within the meaning of sections 667.5 or 1192.7 in order to be strike offenses. A broad and literal interpretation of section 667, subdivision (d)(3) such that every crime listed in Welfare and Institutions Code section 707, subdivision (b) is a strike offense would be contrary to the legislative intent. It would have made no sense for the Legislature to specifically state earlier in the statute that it was its intent to ensure longer prison sentences for recidivists who have previously committed serious or violent offenses and then draft a section which punishes individuals who are not within this class of recidivists. Such an interpretation would also violate the basic principle of statutory construction directing appellate courts to interpret a statute in a manner which, whenever possible, preserves its constitutionality. (Chahine v. State Bd. of Equalization, supra, 222 Cal.App.3d at p. 490, 272 Cal.Rptr. 56.)
Our construction of section 667, subdivision (d)(3) to preserve its constitutionality is also in accord with People v. Griggs (1997) 59 Cal.App.4th 557, 69 Cal.Rptr.2d 174. There, we held that the failure of subdivision (d)(3)(D) to specifically state that those offenses described in paragraph (1) or (2) of subdivision (d) are strike offenses even if the offenses are not listed in Welfare and Institutions Code section 707, subdivision (b) was simply a drafting oversight. Thus, crimes which are not listed in Welfare and Institutions Code section 707, subdivision (b), but which are serious or violent felonies, e.g., voluntary manslaughter, rape which is not accomplished by force or violence or great bodily harm, kidnapping a child under the age of 14, and residential burglary, are strike offenses regardless whether the prior was proved in a juvenile or an adult proceeding. As we explained, "it makes no sense and would frustrate the express intent of the three strikes law (see § 667, subd. (b)) to allow the use of juvenile adjudications as `strikes' but to permit only adults to incur a `strike' as the result of an offense listed in section 667.5, subdivision (c), or section 1192.7, subdivision (c)." (People v. Griggs, supra, 59 Cal.App.4th at p. 561, 69 Cal. Rptr.2d 174.) We now hold the converse to be equally true. It also makes no sense and frustrates the express intent of the three strikes law to treat prior juvenile adjudications for nonviolent, nonserious crimes as strikes when adult convictions for the same offenses do not trigger application of the statute.
We therefore hold that a juvenile adjudication for an offense contained within Welfare and Institutions Code section 707, subdivision (b) may only constitute a strike if it is a serious or violent offense as defined in sections 667.5 or 1192.7. The People failed to prove that appellant's prior juvenile adjudication constituted a serious or violent offense within the meaning of the three strikes law. Accordingly, the trial court's true finding on this allegation must be reversed.
However, the state and federal double jeopardy protections do not bar retrial of the prior strike allegation. (People v. Monge (1997) 16 Cal.4th 826, 845, 66 Cal.Rptr.2d 853, 941 P.2d 1121.) Hence, the appropriate remedy is to remand the matter for determination of whether appellant's prior juvenile adjudication for assault pursuant to section 245, subdivision (a)(1) was a serious or violent felony. As discussed above, the prosecution never introduced evidence concerning the nature of appellant's juvenile adjudication. Thus, the prosecution would have to present additional evidence at the retrial of the prior strike allegation in order for the trial court to reimpose the second strike term. We need not reach the potential evidentiary limitations which might apply to this additional evidence. (People v. Monge, supra, 16 Cal.4th at p. 845, 66 Cal.Rptr.2d 853, 941 P.2d 1121; People v. Reed (1996) 13 Cal.4th 217, 52 Cal.Rptr.2d 106, 914 P.2d 184; People v. Guerrero, supra, 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150.) In addition, we need not reach appellant's other contention of error relating to the three strikes law.
*443 II[**]
DISPOSITION
The judgment of conviction in counts I, III and V and the true finding on the Penal Code section 12022.5, subdivision (a) enhancement are each affirmed. The true finding on the prior conviction allegation is reversed. The | insentience imposed is vacated, and the matter is remanded to the trial court for further appropriate proceedings, including resentencing.
STONE (WM.A.), Acting 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 II.
[1] Unless otherwise stated, all statutory references are to the Penal Code.
[2] The amended information was signed by Fresno County Deputy District Attorney Timothy Donovan on August 8, 1997. It was lodged with the court on September 2, 1997 and filed on September 8, 1997.
[3] The three strikes law was enacted as emergency legislation on March 7, 1994 (§ 667, subds.(b) (i)); the initiative version (§ 1170.12) was approved by the voters on November 9, 1994. Although the instant case involves offenses which occurred after the effective date of the initiative version, appellant was charged under both versions of the three strikes law. The relevant portions of the two versions are virtually identical. (People v. Deloza (1998) 18 Cal.4th 585, 588, fn. 3, 76 Cal.Rptr.2d 255, 957 P.2d 945; People v. Dotson (1997) 16 Cal.4th 547, 551, fn. 2, 66 Cal.Rptr.2d 423, 941 P.2d 56; People v. Hazelton (1996) 14 Cal.4th 101, 107, 58 Cal. Rptr.2d 443, 926 P.2d 423.) Our discussion of the three strikes law will refer to the legislative version to maintain consistency with the trial court's findings and the parties' arguments. However, our conclusions are equally applicable to the initiative version of the law, although necessarily limited to second strike cases.
[4] The probation report and the parties on appeal refer to the surname "Fisavaddy." The reporter's transcript reflects that at trial the witness spelled her name "S-i-s-a-v-a-d-d-y."
[5] Neither the court nor the parties considered whether the documents from the juvenile record were admissible to establish the serious or violent nature of the underlying adjudication, and we need not reach that issue for purposes of our discussion.
[6] Indeed, respondent has acknowledged the equal protection problems inherent in its proposed interpretation of section 667, subdivision (d)(3).
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262793/ | 84 Cal.Rptr.2d 269 (1999)
71 Cal.App.4th 841
In re MATTHEW P. et al., Persons Coming Under the Juvenile Court Law.
Orange County Social Services Agency, Plaintiff and Respondent,
v.
Sara P. et al., Defendants;
Mike K. et al., Movants and Appellants.
In re Matthew P. et al., Persons Coming Under the Juvenile Court Law.
Orange County Social Services Agency, Plaintiff and Respondent,
v.
Sara P. et al., Defendants;
Mike K. et al., Interveners and Appellants.
Nos. G023528, G023882.
Court of Appeal, Fourth District, Division Three.
April 5, 1999.
*270 Rich Pfeiffer, under appointment by the Court of Appeal, for Movants and Appellants and for Interveners and Appellants.
Laurence M. Watson, County Counsel, and Amy E. Morgan, Deputy County Counsel, for Plaintiff and Respondent.
Harold LaFlamme, Santa Ana, and Craig E. Arthur, under appointments by the Court of Appeal, for the Minors.
OPINION
SONENSHINE, J.
This case illustrates the tension between the procedural due process rights of a party to a dependency proceeding and the power of the juvenile court to control the conduct of a hearing on a modification petition. Because we find due process rights were violated, we reverse the denial of the modification petition and remand for a new hearing. We lament, however, the eight months consumed while this appeal has progressed through this court and remind dependency counsel that traditional writ relief is available to remedy errors that unnecessarily delay a dependent child's progress toward permanency and stability. (In re Pablo D. (1998) 67 Cal.App.4th 759, 761, 79 Cal. Rptr.2d 247.)
Mike and Nora K., de facto and former foster parents of Matthew P. and Zohn R., filed two separate appeals from two orders of the juvenile court: (1) an order denying their *271 motion under Welfare and Institutions Code section 388[1] seeking to regain placement of the boys with them; and (2) an order selecting long-term foster care as the permanent plan for the boys. The K.'s claim their section 388 motion should have been granted because they demonstrated changed circumstances and placement with them was in the best interests of the children. They also claim they were denied due process at both hearings because the court admitted the social worker's reports without allowing them to cross-examine him. The appeals were consolidated after the opening briefs were filed, and we dispose of both in this single opinion. We reverse the denial of the K.'s section 388 motion and affirm the order selecting the permanent plan.
Background
In July 1994, Matthew P., then six years old, and his half-sibling, Zohn R., then five months old, were detained when they were discovered sleeping in a car with their mother and Zohn's father. The family was homeless and transient and the children were dirty and neglected. The father was dependent on pain-killers, which his wife, the children's mother, obtained for him illegally.
The children were adjudicated dependents and returned to the parents under a plan of family maintenance. After less than a year, however, the parents took the children and fled to Arizona, where they were picked up when the mother tried to get pain medication for her husband. The children were returned to California, and a subsequent petition was sustained alleging physical abuse by the father, neglect by both parents, and failure to protect by the mother. The children were placed in the K.'s home in August 1995.
Nora and Mike K. had four children when Matthew and Zohn were placed with them. Nora's son Anthony from a previous marriage, whom Mike had adopted, was slightly older than Matthew; Lauren was two; Michael was one, very close in age to Zohn; and Stephanie was two months old. Nora was employed as a social worker for Los Angeles County, and Mike was employed as an inspector for an engineering firm. The K.'s quickly integrated Matthew and Zohn into the family.
After 18 months of reunification services, the juvenile court found the children could not be returned to their mother and scheduled a permanency hearing, which was held in May 1997. The social worker, Mike Waterhouse, reported the boys got along well with the K.'s four birth children and appeared happy in the K.'s home, but Matthew had exhibited some behavior problems since November 1996. He had "indicated some conflicting feelings over his loyalty to his mother and his desire to remain in his current home"; he was in the process of being tested for attention deficit hyperactivity disorder. The Orange County Social Services Agency (SSA) recommended a permanent plan of long-term foster care: The K.'s wanted to keep the boys as long as necessary, but were "not willing to accept the financial responsibility of guardianship or adoption"; Matthew had a significant attachment to his mother and wanted to maintain a relationship with her, and it was considered best to keep the boys together. The parties stipulated to SSA's recommendation, and the court ordered long-term foster care.
In October 1997, Waterhouse prepared a report for the scheduled review hearing, noting Matthew's continuing problems with "stealing at home" but his improvement at school, Zohn's developmental delays in speech, and both boys'"significant attachment to their current caretakers." He reported the K.'s "remain committed to providing long-term care for the minors" and recommended continuation of long-term foster care. The minors' counsel, however, apparently alerted the court the K.'s wished to adopt, and requested a contested review hearing for that purpose.
In the report prepared for the contested hearing, held in December 1997, Waterhouse acknowledged the K.'s had expressed an interest in adoption as early as September 1996, but shortly thereafter changed their minds because they were concerned about college expenses for six children. The K.'s were now interested in adoption, the social *272 worker reported, because (1) they were expecting twins and would lose their foster care certification (and, thus, Matthew and Zohn as foster children) unless they moved to a larger home and obtained more child care help, and (2) they were exploring the Adoption Assistance Program (AAP), which provides financial help to families who adopt special needs children. The K.'s were working with an attorney at the Youth Law Center and were considering joining a class action lawsuit in federal court over the interpretation of eligibility restrictions for assistance under the AAP. The K.'s were not willing to adopt the boys unless they would be eligible for financial assistance under the AAP.
Waterhouse stated, "The foster parents provide very good care for the minors and have been able to work through some significant behavioral problems with Matthew.... [¶] [T]his is a good placement for the minors and [SSA] is interested in reconciling the AAP issues with the caretakers. The undersigned believes that the issues of the Adoption Assistance Program and the family's commitment to follow through on adopting the minors should be resolved before the Court considers freeing the minors for adoption."
The court found long-term foster care was no longer appropriate and set the matter for a second permanency hearing in April 1998. In April, the K.'s applied for and were granted de facto parent status, and the permanency hearing was continued to June 15.
The K.'s de facto status entitled them to receive Waterhouse's report of April 17, which informed the court that the K.'s had asked to have Matthew placed in respite care because on April 2 Nora had been hospitalized for complications with her pregnancy. Zohn was placed in the same respite home "due to inadequate supervision in the home resulting from the family's current crisis." Waterhouse continued, "The minors' caretakers have been appropriate in their care of the minors until the March of this year." He explained that Matthew and the K.'s oldest son, Anthony, stole about $800 from the family's nanny, and Nora, without notifying the foster care agency or SSA, took the boys to the police department to have them booked on felony charges. Her reported intention was to "let them go through a trial and sentencing to scare them," then tell the judge they did not want to press charges. Furthermore, according to Waterhouse, Nora told Matthew he was not considered adoptable because he wanted to maintain a relationship with his mother, and when the K.'s adopted Zohn, Matthew would have to go to another foster home. Waterhouse was also concerned that the K.'s expectations for financial help from the AAP, expressed in an affidavit filed in the ongoing litigation, were excessive.
After reading Waterhouse's report, the K.'s filed a motion under section 388 to secure the return of Matthew and Zohn from respite care, explaining their twins had been born healthy on April 7 and there was no reason to keep the boys out of their home. At the hearing, the K.'s objected to the admission of the social worker's reports unless they were permitted to cross-examine the preparer. But the court refused to allow cross-examination, citing California Rules of Court, rule 1432(f)[2] which permits section 388 motions to be heard without testimony at the discretion of the court. The court did, however, admit a lengthy letter from Nora, which attempted to contest or explain many of the representations made in Waterhouse's April 17th report and justify their actions with respect to Matthew and Zohn.
The court also admitted, over the K.'s objection, SSA reports dated May 18 and June 2. In these reports, prepared by a social worker new to the case, John Mannings, SSA recommended keeping Matthew and Zohn in the respite care home and not returning them to the K.'s. Mannings reported both Nora and Mike had said they wanted to adopt Zohn but not Matthew, and they did not want Matthew returned to their care because of his many problems, his loyalty to his mother, and his "scary" behavior. The boys' current caretakers reported they were doing well, were improving in all areas, and appeared happy. Neither child had mentioned returning to the K.'s; Matthew *273 had expressly stated ne ma not want to return. The foster care certification agency social worker told Mannings at the end of May the K.'s foster home was out of compliance and the boys could not be returned there.
After hearing argument from counsel, the court denied the section 388 motion, finding there had been an insufficient showing of a change of circumstances and there was no existing court order that needed to be changed to serve the minors' best interests.
Shortly thereafter, the birth mother filed a petition under section 388 seeking Matthew and Zohn's return to her custody, which was scheduled to be heard on the same day as the second permanency hearing, June 15. SSA filed an update report that day, again detailing the problems with the K.'s and recommending a continuation of long-term foster care and increased visitation for the birth mother. The birth mother, SSA and the minors' counsel stipulated to SSA's recommendation, and the section 388 petition was taken off calendar. The K.'s counsel waived his appearance for the permanency hearing after being informed of the stipulation, but he was unaware of the update report and did not receive it until he came into the courtroom after lunch. At that point, he attempted to change his waiver of appearance and requested to cross-examine the preparer of the report. The K.'s counsel explained, "I checked in ... at 9 o'clock as normal. In this courtroom, I'm not permitted to remain... while other cases are being heard...." He was unaware of both the 10:00 a.m. call and the 11:00 a.m. call and did not go back into the courtroom until someone came and got him, at which point he waived his appearance.
The court denied as untimely the K.'s counsel's request to change his waiver of appearance. "You didn't look [for the update report]. You chose not to be here at all. In view of your earlier waiver ... of your appearance and your client's appearance, and also your apparent agreement with [the recommendation for long-term foster care], ... your afternoon appearance is disingenuous, at best...." The court admitted all SSA's reports into evidence and made orders in conformity with the stipulation.
The denial of the K.'s section 388 motion
When ruling on the K.'s section 388 motion seeking to have Matthew and Zohn returned to them, the trial court suggested the motion was not well taken because it was not seeking to change a court-ordered placement. This suggestion is incorrect. The placement order here vested custody in SSA with discretion to select a suitable placement. The K.'s challenge to SSA's placement decision, i.e., to leave the boys in respite care, was properly brought under section 388. (In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1489-1490, fn. 8, 69 Cal.Rptr.2d 1.) For that challenge to be successful, they needed to prove, by a preponderance of the evidence, that circumstances had changed so as to make a change of placement in the best interests of the boys. (In re Stephanie M. (1994) 7 Cal.4th 295, 320, 27 Cal.Rptr.2d 595, 867 P.2d 706.)
The K.'s claim they met this burden of proof by showing there was no longer a need for respite care because the previous medical crisis had been resolved. And the best interests of the boys would clearly be served by their return, the K.'s argue, because they thrived under the K.'s good care for almost three years. SSA, on the other hand, points to all the problems that surfaced in the social services reports of April, May, and June as justification for denial of the motion. But the K.'s contend these reports were inadmissible at the hearing on their motion because the trial court did not allow them to crossexamine the social worker. We agree.
The parties to dependency proceedings have a due process right, confirmed by court rule, to confront and cross-examine witnesses. Rule 1412(j), which governs the conduct of all proceedings, directs the juvenile court to advise "the child, parent, and guardian ... of the following rights: ... [¶] (2) The right to confront and cross-examine the persons who prepared reports or documents submitted to the court by the petitioner, and the witnesses called to testify at the hearing; [¶] (3) The right to use the process of the court to bring in witnesses; [¶] (4) The right to present evidence to the court. [¶] *274 The child, parent or guardian, and their attorneys have the right (i) to receive probation officer or social worker reports, and (ii) to inspect the documents used by the preparer of the report." (See also In re Malinda S. (1990) 51 Cal.3d 368, 382, 272 Cal.Rptr. 787, 795 P.2d 1244; In re Dolly D. (1995) 41 Cal.App.4th 440, 444, 48 Cal.Rptr.2d 691.)[3]
To determine whether the court's denial of cross-examination to the K.'s rendered the social services reports inadmissible, we must decide first, whether the right to confrontation applies to de facto parents and second, whether the right applies in the context of a section 388 hearing.
Attaining the status of de facto parents allowed the K.'s to participate "as parties" in hearings by being present and represented by counsel and by presenting evidence. (Rule 1412(e).) As such, they are entitled to the same procedural rights as natural parents. "Although ... de facto parents do not have all the substantive rights and preferences of legal parents or guardians, they have been afforded procedural rights in order to `assert and protect their own interest in the companionship, care, custody and management of the child` [citation], and to `ensure that all legitimate views, evidence, and interests are considered' by the juvenile court in dependency proceedings. [Citation.]" (In re Jonique W. (1994) 26 Cal.App.4th 685, 693, 31 Cal. Rptr.2d 601.) The Jonique W. court found a denial of due process where the de facto parent was not permitted to contest the removal of dependent children from her custody at the hearing on a supplemental petition. (Id. at pp. 690, 694, 31 Cal.Rptr.2d 601. See also Katzoff v. Superior Court (1976) 54 Cal.App.3d 1079, 127 Cal.Rptr. 178 [reversal of juvenile court's refusal to allow de facto parents to present evidence at review hearing contradicting social services reports recommending removal of child from their custody]; In re Cynthia C, supra, 58 Cal.App.4th at pp. 1490-1491, 69 Cal.Rptr.2d 1 [this court approved the de facto mother's exercise of her rights to testify, call witnesses and cross-examine SSA's witnesses at a section 388 hearing].)
Here, however, the juvenile court relied on rule 1432(f) to eliminate testimony altogether. The relevant portion of that rule provides, "With the exception of a request for removal from the home of the parent or guardian or removal to a more restrictive level of placement, proof [that the child's welfare requires the requested modification] may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court...." (Ibid.) SSA argues, in effect, that the discretion given to the juvenile court by rule 1432(f) overrides the de facto parents' due process right to confront and cross-examine witnesses.
Procedural due process is not absolute. "[O]nce it has been concluded that a due process right exists, we balance ... factors... to decide what process is due. [Citation.] This flexible balancing standard considers (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the [dignity] interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Citation.]" (In re Malinda S., supra, 51 Cal.3d at p. 383, 272 Cal.Rptr. *275 787, 795 P.2d 1244, fn. omitted, internal quotation marks omitted.)
In juvenile dependency litigation, due process focuses on the right to notice and the right to be heard. "A meaningful hearing requires an opportunity to examine evidence and cross-examine witnesses, and hence a failure to provide parents with a copy of the social worker's report, upon which the court will rely in coming to a decision, is a denial of due process." (In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413, 15 Cal.Rptr.2d 613.) In the context of this section 388 hearing, we must balance the K.'s interest as de facto parents in regaining custody of the boys and in telling their side of the story about what they believe is the best interest of the boys against the government's interest in serving the best interests of the boys by resolving dependency matters expeditiously and allowing the juvenile court wide latitude to control dependency proceedings.
We conclude the circumstances here required the juvenile court to conduct a full hearing rather than limiting it to declarations under the court rules. There is no question that the K.'s were denied an opportunity to be heard. The letter written by Nora, which the court accepted into evidence, did address the April 17 report, but not the reports of May 18 or June 2. Furthermore, the court was denied the full benefit of the K.'s perspective as de facto parents. "The de facto parenthood doctrine . . . 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." (In re Kieshia E. (1993) 6 Cal.4th 68, 77, 23 Cal.Rptr.2d 775, 859 P.2d 1290.) The denial of the K.'s motion rests entirely on the content of the social services reports. Given their three-year history with the boys, including their undisputed care and concern for them, and their allegations that the social workers' statements were inaccurate, the court should not have exercised its discretion under rule 1432(f). That rule is not absolute and does not override due process considerations. (See Los Angeles County Dept. of Children etc. Services v. Superior Court (1998) 63 Cal.App.4th 1299, 1305-1306, 74 Cal.Rptr.2d 618.)
The order selecting long term foster care as the permanent plan
The K.'s also appeal the order at the second permanency hearing, entered pursuant to the parties' stipulation, selecting longterm foster care as the boys' permanent plan. They do not, however, disagree with the order. Their complaint is the admission of the June 15 social services report, which contains information unfavorable to them, without having an opportunity to cross-examine the preparer and thereby including their version of events in the record.
The due process considerations discussed above weigh in differently here. The K.'s counsel waived his appearance and was unable to convince the juvenile court to let him withdraw his waiver. Counsel claimed he was "sandbagged"; the court expressed its opinion that counsel had failed to act responsibly. We cannot (nor do we want to) get involved in a credibility contest between the court and counsel and accordingly we will not disturb its determination. Furthermore, we note that the June 15 report added nothing new of significance to the previous reports.
Disposition
In appeal number G023528, the order denying the K.'s section 388 motion is reversed and the court is directed to hold a new hearing allowing the K.'s to cross-examine the social workers and present evidence. In appeal number G023882, the order selecting long-term foster care as the permanent plan is affirmed.
CROSBY, Acting P.J., and RYLAARSDAM, J., concur.
NOTES
[1] All statutory references are to the Welfare and Institutions Code.
[2] All rule references are to the California Rules of Court.
[3] We are aware of the recently filed opinion from the Second District, In re Jeanette V. (1998) 68 Cal.App.4th 811, 80 Cal.Rptr.2d 534, which holds that parties have a statutory right to crossexamination only at the jurisdictional hearing. This case confuses the right to cross-examination, which applies to all hearings, with the admissibility of the social study reports. At the jurisdictional hearing, the social study reports are admissible only if the preparer of the report is available for cross-examination. At subsequent hearings, the reports are admissible without that condition. (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1387, fn. 3, 75 Cal. Rptr.2d 851.) The lesser requirement for admissibility of the reports at subsequent hearings does not compromise a party's right to request the presence of the preparer and cross-examine him or her. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312887/ | FREDERICK J. KAPALA, District Judge
Plaintiff's motion for partial summary judgment [49] is granted in part and denied in part. The court enters summary judgment for plaintiff on defendant's res judicata and undue hardship affirmative defenses. The motion for partial summary judgment is denied in all other respects. Defendants' motion for summary judgment [54] is denied. Plaintiff's motion to deem facts undisputed [81] is denied as moot. Defendants' motion to strike [87] plaintiff's response to reply filed without leave is granted.
STATEMENT
Plaintiff, Richard J. Jankowski, has sued his former employer, Dean Foods Company and Dean Dairy Holdings, LLC ("Dean") alleging discrimination and failure to accommodate in violation of the American's with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA") and retaliatory discharge in violation of the Illinois Worker's Compensation Act, 820 ILCS § 305/1 et seq., and Illinois common law. Before the court are plaintiff's motion for partial summary judgment, Dean's motion for summary judgment, and motions to strike and deem facts undisputed filed by both parties.
I. FACTS1
Dean operates a facility in Huntley, Illinois (the "Huntley Plant") with five production *701departments: (1) the empty case or wire room department (the "Empty Case Room"); (2) the Uniloy or blow mold department room (the "Uniloy Room"); (3) the filler or bottling room department (the "Filler Room"); (4) the Pasteurization Room; and (5) the Cooler Room. Each department is staffed by its own operators, as well as additional general, break, and vacation relief operators. Dean hired plaintiff in 2002 as a General Dairy Operator in their Huntley Plant. Plaintiff was a member of the Dairy Employees Union/Teamsters Local 754 (the "Union") and was subject to the terms and conditions of the applicable collective bargaining agreement ("CBA") between Dean and the Union.
In August 2003, plaintiff suffered a workplace injury while "stacking skids" in the Empty Case Room. Dean accommodated plaintiff's injury, following his request, by allowing him to return to work on light duty. Plaintiff filed a workers' compensation claim against Dean relating to his August 2003 injury that was later settled. Plaintiff later returned to full duty without medical restrictions.
On May 14, 2005, plaintiff injured his neck while pushing a steel bossy cart ("bossy") loaded with eighty gallons of milk into a semi-trailer. Plaintiff went on a medical leave of absence following his injury. Plaintiff filed a workers' compensation claim against Dean relating to his May 2005 injury that was later settled. In May 2006, plaintiff returned to work without medical restrictions.
On December 6, 2007, plaintiff sent a complaint letter to Dean's corporate office alleging "harassment from the company due to [his] on the job injury in August of 2003." Following an investigation, Dean closed its inquiry after its investigator determined that plaintiff's complaint was meritless.
Plaintiff worked in the Empty Case Room without medical restrictions from May 2006 through October 5, 2009. On October 5, 2009, plaintiff re-injured his neck while pushing a fully-loaded bossy in the Cooler Room. Plaintiff completed an Employee Accident Report on October 16, 2009. On the same day, Dean managers Randy Lentz and Dave Dixon met with plaintiff regarding his injury. Lentz and Dixon asked plaintiff to submit to a physical examination performed by Dr. Wollin, an occupational physician affiliated with Dean. Following Dr. Wollin's examination, plaintiff was released to return to work subject to the following temporary medical restrictions: (1) no lifting 25 or more pounds; and (2) no pushing or pulling 50 or more pounds. On October 17, 2009, Dean accommodated plaintiff, upon his request, by returning him to work on light duty. While on light duty, plaintiff was no longer required to push or pull loaded bossies or perform any work outside the parameters of his medical restrictions. On October 19, 2009, Sherri Bryant, Dean's Injury Counselor, sent plaintiff a letter stating that: (1) she would assist him in finding work within his medical restrictions; (2) she would facilitate his return to "full duty work;" and (3) an adjuster from an insurance company would be contacting him regarding his injury and workers' compensation benefits.
On October 25, 2009, plaintiff sent a complaint letter to Dean's corporate office alleging: (1) unsafe working conditions; (2)
*702retaliation for suffering a workplace injury; (3) "medical condition discrimination"; and (4) harassment. In response to plaintiff's complaint, Dean sent an investigator, Scott Redden, to investigate its merits. Following an investigation, Redden concluded that plaintiff's complaint was meritless. For the remainder of 2009 and through December 2010, pursuant to his request, Dean continued to accommodate plaintiff by allowing him to work full-time on light duty. Plaintiff disputes that he in fact only performed light duty during this period.
On December 23, 2010, while still working on light duty, plaintiff filed a workers' compensation claim against Dean relating to his October 2009 injury. Plaintiff continued to work until he took a medical leave in February 2011 after losing strength in his left arm. Plaintiff never returned to work for Dean. Helmsman Management Services, a third-party administrator and member of Liberty Mutual Insurance, denied plaintiff's workers' compensation claim and Dean communicated this decision to him in the fall of 2011.
In November 2012, Dean implemented its Temporary Transitional Duty Program ("TTDP") under which employees who sustained work-related injuries or illnesses may be placed into temporary assignments that accommodate their non-permanent restrictions for a period not exceeding 180 days. On January 4, 2013, the parties engaged in an arbitration regarding the denial of plaintiff's workers' compensation claim and the arbitrator issued a decision in favor of Dean on January 31, 2013. The Illinois Workers' Compensation Commission ("IWCC") affirmed the arbitrator's decision denying plaintiff any further benefits under the IWCA on July 22, 2013. On June 24, 2016, the Illinois Appellate Court affirmed the IWCC's decision.
On August 7, 2014, nearly three years and six months after he went on medical leave, plaintiff submitted a Work Duty Status Report ("WDSR") to George Spadoni, a Senior Human Resources Business Partner responsible for the Huntley Plant, and Brandon Marvin, the Huntley Environmental Health and Safety Manager at the time. The WDSR stated that plaintiff was permanently restricted from: (1) repetitive grabbing, (2) pushing and pulling greater than 50 pounds, (3) lifting more than 25 pounds from floor to waist, and (4) performing above shoulder work. The WDSR also prohibited plaintiff from: lifting 50 to 100 pounds and climbing. Plaintiff was also partially restricted from: (1) moderate lifting between 20 to 50 pounds; (2) pushing, pulling or carrying; (3) stooping; (4) kneeling; and (5) repeated bending. At the time he submitted the WDSR, plaintiff did not communicate to Dean any objection to the restrictions.
After receiving plaintiff's WDSR, Spadoni drafted department specific questionnaires that asked whether each of plaintiff's medical restrictions prevented him from performing the essential functions of an operator position in the production departments at the Huntley Plant. Spadoni sent the questionnaires to Gregory Warren, Production Manager at the Huntley Plant, who was responsible for performing the analysis of whether plaintiff could perform the essential functions of an operator in the various departments with or without accommodations. Warren has been employed by Dean for nearly 40 years in numerous positions, including Plant Manager, and has extensive knowledge of the job duties of each operator position at the Huntley Plant. Dean contends that one of the essential functions for an operator in the Empty Case Room is to be physically able to stack cases, which could be full of returned product and weigh up to 38 pounds, 6 to 7 feet high. Plaintiff disputes *703that this is an essential function of an operator in the Empty Case Room. In particular, in his affidavit in opposition to Dean's motion for summary judgment, plaintiff swears that:
Following my October 2009 work injury to February 2011, I accomplished all essential duties in the Empty Case room within medical restrictions using various methods to lessen the weight of anything I needed to lift, and also using a forklift to perform some heavier tasks. These duties were not "light" duties. It was my regular, pre-injury job. At the same time they were not so heavy as to require me to violate my restrictions. My restrictions were made permanent in July 2010 and I continued doing my job as I had before. No one told me that my work performance was dissatisfactory, or I was too slow, created a safety hazard or lowered productivity.
....
Based on my experience working in the Empty case room, stacking full cases of returned product is not an essential function because operators are not required to do it in any certain manner or to any certain height, there are no consequences of not stacking in any certain manner or to any certain height, handling returned product is a very small part of the job (< 2-3%), and I was able to efficiently unstack and stack cases by removing/adding a bottle or 2 at a time to adjust total weight to within my lifting restriction. If Dean returned me to work, I could use a ladder to stack to above shoulder, or just keep stacks to/below my shoulder.
According to Dean, another essential function for an operator in the Empty Case Room is to be physically able to stack 48 pound empty pallets. In his affidavit, plaintiff also disputes that this is an essential function of the job:
Based on my experience working in the Empty Case room, stacking empty pallets is not an essential function because operators are not required to do it in any certain manner or to any certain height, there are no consequences of not doing it one way or to one height, handling empty pallets is a very small part of the job (< 2-3%), and I was able to efficiently stack empty pallets using a forklift or manually by flipping them on their side and interlocking to make a shorter stack, or I just leaned them against the side wall of the trailers. I pushed/moved them with my waist and feet.
According to Dean, another essential function of an operator in the Empty Case Room is to be physically able to remove garbage, which could weigh up to 38 pounds, from cases, which may be stacked up to 7 feet high, prior to placing the cases in the depalletizing system. Plaintiff disputes that this is an essential function also:
The few cases that had returned product of any weight were 99% of the time located on the bottom rows of the pallet. If garbage was in the cases stacked on the top rows, I could pull out a middle case or two and lowered [sic] the height of the column so that I could remove and dispose of the garbage within restrictions.
Dean determined that plaintiff could not perform the essential functions of an operator in the Empty Case Room with an accommodation, because there was no accommodation that would allow him to do so without: (1) contravening his permanent restrictions; (2) requiring Dean to reassign his duties to another operator; (3) creating a safety hazard; or (4) lowering Dean's productivity standards. According to Dean, even if plaintiff could have performed the essential functions of an operator in the Empty Case Room with an accommodation, *704which he could not, there have been no openings in the Empty Case Room since plaintiff submitted his WDSR.
On September 5, 2014, in response to plaintiff submitting his WDSR and a grievance related to his return to work, Spadoni, Warren, and Ken Graham, the Plant Manager of Dean Foods' Huntley plant, met with plaintiff and his union representatives. At the outset of the meeting, Spadoni asked plaintiff to sign a HIPAA release so that his medical information could be discussed with his union representatives present. Plaintiff refused. Spadoni adjourned the meeting to provide plaintiff with an opportunity to contact his attorney. After speaking to his attorney during the break, plaintiff insisted on his refusal to sign the HIPAA release. The parties discontinued the meeting.
On October 31, 2014, Spadoni and Graham, on behalf of Dean, organized a second meeting with plaintiff and his union representatives. At the outset of this meeting, Spadoni repeated his request that plaintiff sign the HIPAA release so that his medical information could be discussed with his union representatives present. Plaintiff, acting on his attorney's advice, refused to sign the HIPAA release form. The parties discontinued the meeting.
On January 27, 2015, Spadoni and Graham organized a third meeting with plaintiff and his union representatives. At the outset of this meeting, plaintiff finally agreed to sign the HIPAA release. Spadoni began the meeting by going through each of plaintiff's permanent restrictions. Spadoni explained to plaintiff that his permanent restrictions prevented him from performing the essential functions of an operator in the Empty Case, Uniloy, and Filler Rooms. Plaintiff was ineligible for TTDP because: (1) his restrictions were permanent; and (2) his injury occurred over 6 months prior to his possible enrollment in the program. According to Dean, the only operator positions that became available during the relevant period were in Relief and Vacation Relief, and the Pasteurization, Cooler, and Filler Rooms-positions he could not fill due to his permanent medical restrictions.
Pursuant to the CBA, when an employee's seniority has lapsed due to a leave of absence of at least sixty months, the employee is dismissed. Pursuant to this provision, in February 2016, plaintiff's seniority lapsed and his employment was terminated after he was unable to return for 60 months due to medical issues. At no time prior to February 2016 did plaintiff suggest any specific accommodation other than to be returned to work subject to his medical restrictions. The Union filed a grievance on plaintiff's behalf, claiming violations of the CBA and the ADA, but an arbitrator found no merit in these claims.
During his deposition, plaintiff was asked what activities his injuries keep him from doing. Plaintiff said "the restrictions that my doctor put me under." Plaintiff went on to agree that he could drive a car, do some yard work, and help with dishes and groceries.
At an arbitration hearing, Greg Munks testified that he has worked for Dean for over 30 years including 7 years as a foreman in the Empty Case Room. He testified that the job is less physically demanding now as opposed to when he worked there as more of it is automated. Munks stated that it is very seldom that operators have to stack pallets. He stated that if a truck had a lot of returned product in it, it would first go to the cooler to get unloaded so it can be in a refrigerated area. After reviewing plaintiff's permanent work restrictions, Mr. Munks testified that plaintiff could perform the operator job in the Empty Case, Uniloy, and Filler Rooms within his restrictions.
*705In an affidavit, James Steele swore that he began his employment with Dean in December 1994 at the Huntley Plant. Since 1999 or 2000, he has worked in the Uniloy Room on the second shift. He knows all job duties and requirements of working in the Uniloy room from first-hand experience performing them over the years and also directly observing co-workers perform them. The Uniloy room is normally staffed with 3 operators and a relief operator. The relief person provides relief in the Uniloy and the Filler and/or Empty Case Rooms. The operators are assigned to run 4 gallon and 1 1/2-gallon Uniloy machines and help each other with tasks from time to time as needed. Steele is aware of plaintiff's permanent restrictions and believes that plaintiff can perform the essential functions of the operator job in the Uniloy room utilizing the various methods and accommodations without violating his medical restrictions, requiring his duties to be reassigned to another operator, creating a safety hazard, or having a noticeable impact on productivity.
In Count I, styled "Disability Discrimination, Including Failure to Accommodate, in Violation of the ADA," plaintiff alleges that between August 7, 2014 and February 2016, Dean could have without undue hardship allowed him to return to work in his former light-duty position, in a comparable position within his medical restrictions, in another position he was qualified to perform, or granted him another reasonable accommodation to allow him to return to work. Plaintiff also alleges that Dean failed to engage in the interactive process to identify potential work adjustments that would have allowed him to return to work in a position consistent with his restrictions. Plaintiff alleges further that Dean terminated his employment because of his disability.
In Count II, styled "Retaliatory Discharge in Violation of the IWCA and Common Law," plaintiff alleges that Dean refused to accommodate him and return him to work, or to engage in the interactive process, because of his IWCA-protected activities. Plaintiff also alleges that when Dean discharged him in February 2016, it was a retaliatory discharge in violation of IWCA and the Illinois common law.
II. DISCUSSION
Summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists and summary judgment is inappropriate if there is sufficient evidence for a jury to return a verdict for the nonmoving party. Springer v. Durflinger, 518 F.3d 479, 483 (7th Cir. 2008). For the purposes of a motion for summary judgment, the court must look at the evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A. Dean's Motion for Summary Judgment
1. ADA Claim
To defeat summary judgment on an ADA discrimination claim, a plaintiff must point to evidence showing that (1) he is a qualified individual with a disability under the meaning of the ADA; (2) he is qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) he suffered an adverse employment decision as a result of his disability. Guzman v. Brown County, 884 F.3d 633, 641 (7th Cir. 2018). To support a failure-to-accommodate claim under the ADA, a plaintiff must demonstrate that (1) he is a person with a disability as *706defined by the ADA; (2) the defendant knew about her disability; and (3) the plaintiff is otherwise qualified to perform the essential functions of the job sought, with or without reasonable accommodation. Winfrey v. City of Chicago, 259 F.3d 610, 614 (7th Cir. 2001). A plaintiff who clears this first hurdle must then show that her employer failed to provide a reasonable accommodation. Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001).
a. Disability Under the ADA
To establish either a discrimination or failure-to-accommodate claim under the ADA, plaintiff must establish that he is disabled within the meaning of the statute. Dean contends that plaintiff was not disabled under the ADA and that he admitted under oath that his permanent medical restrictions did not substantially limit his major life activities. In response, plaintiff maintains that he was and continues to be "disabled" under the ADA as a matter of law and that he did not admit that his medical restrictions did not substantially limit his major life activities. Specifically, plaintiff argues that he has been substantially limited in the major life activity of lifting since October 2009. In particular, plaintiff asserts that, with the exception of times in 2010 when the limits were lowered, since October 2009 he has been restricted from lifting more than 25 pounds from floor to waist and from pushing more than 50 pounds. In fact, plaintiff has filed his own motion for partial summary judgment in which he seeks judgment on this issue. In his memorandum in support of his motion for partial summary judgment-in which he incorporates his response to Dean's motion for summary judgment-plaintiff cites § 12102(2)(A) of the ADA and explains that it was amended in 2008 to specifically include "lifting" as a major life activity. Plaintiff also cites a section of the Code of Federal Regulations providing that "[s]omeone with an impairment resulting in a 20-pound lifting restriction ... is substantially limited in the major life activity of lifting." 29 C.F.R. pt. 1630, app. § 1630.2(j)(1)(viii). In its reply brief, Dean persists in its contention that plaintiff was not disabled as a matter of law because lifting limitations do not qualify as a disability under the ADA.
First of all, plaintiff made no admission that his permanent medical restrictions did not substantially limit his major life activities. During his deposition, plaintiff was asked what activities he felt were restricted by his injuries and he said "the restrictions that my doctor put me under." When asked if there were any others, plaintiff said "no," and then agreed that he could drive a car, do some yard work, help with dishes, and grocery shop. Of course it was the doctor that restricted him from lifting more than 25 pounds from floor to waist and from pushing more than 50 pounds. This medical restriction is the physical impairment that plaintiff claims substantially limits the major life activity of lifting.
Secondly, "[l]ifting is a major life activity." Majors v. Gen. Elec. Co., 714 F.3d 527, 533 (7th Cir. 2013). The ADA defines a disability as "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1). The ADA specifies that "major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Id. § 12102(2)(A) (emphasis added). Thus, the question for this court is whether the inability to lift more than 25 pounds is a substantial impairment *707of the major life activity of lifting.
Dean cites to three cases to support its position that plaintiff was not disabled as a matter of law because his lifting limitations do not qualify as a disability under the ADA. The first case, Bumphus v. Unique Personnel Consultants, cites to pre-amendment law applicable at a time when "lifting" was not an enumerated life activity. No. 16-CV-312-SMY-DGW, 2018 WL 4144475, at *3 (S.D. Ill. Aug. 30, 2018). In the second case, the court held that a lifting restriction much greater than the one placed on plaintiff, namely "[t]he inability to lift more than 68 pounds does not qualify someone as disabled or 'regarded as' disabled under the ADA." Chi. Reg'l Council of Carpenters, United Bhd. Carpenters & Joiners of Am. v. Berglund Const. Co., No. 12 C 3604, 2012 WL 3023422, at *2 (N.D. Ill. July 24, 2012). The third case also dealt with a much greater lifting restriction, concluding that "many people are unable to lift the 50-pound and 100-pound boxes as required by the FFH test; Rosas's inability to do so does not render him substantially limited in lifting ability compared to the general population." Chi. Reg'l Council of Carpenters v. Thorne Assocs., Inc., 893 F. Supp. 2d 952, 962 (N.D. Ill. 2012).
"An impairment is a disability ... if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." 29 C.F.R. § 1630.2(j)(1)(ii). Comparative assessment between an individual's performance and the performance of "most people in the general population ... usually will not require scientific, medical, or statistical analysis." Id. § 1630.2(j)(1)(iv). At this point in the litigation, the court is not prepared to conclude that most people in the general population are unable to lift 25 pounds from floor to waist. Therefore, the court cannot conclude that plaintiff's lifting restriction does not substantially limit his ability to perform the major life activity of lifting. Consequently, Dean will not be granted summary judgment on plaintiff's ADA claims on this basis.
b. Performance of Essential Functions With or Without Reasonable Accommodation
Dean contends that plaintiff was not a qualified individual with a disability because he could not perform the essential functions of his position as an operator in the Empty Case Room-which includes lifting cases weighing up to 38 pounds, pallets weighing 48 pounds, and garbage weighing up to 38 pounds-with or without a reasonable accommodation. Dean contends further that it could not reasonably accommodate plaintiff's medical restrictions through plaintiff's suggested accommodations of (1) placement on permanent light duty; (2) placement in another position, or (3) an unspecified work adjustment.
In response, plaintiff argues that conflicting evidence creates genuine issues of material fact regarding (1) the essential functions of an operator in the Empty Case Room and of relief operators, and (2) whether he could have satisfactorily performed the essential functions of these jobs with or without accommodation. The first task for the court in deciding plaintiff's failure-to-accommodate ADA claim is to determine what the essential functions were of plaintiff's position as an operator at the Huntley Plant. Evidence relevant to the determination of whether a particular duty is an "essential function" includes:
(i) The employer's judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job *708performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs.
Stern v. St. Anthony's Health Ctr., 788 F.3d 276, 285 (7th Cir. 2015) (quoting 29 C.F.R. § 1630.2(n)(3) ). "[It is] presum[ed] that an employer's understanding of the essential functions of the job is correct, unless the plaintiff offers sufficient evidence to the contrary." Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th, & 22nd Judicial Circuits, 601 F.3d 674, 679 (7th Cir. 2010) ; see also Miller v. Ill. Dep't of Transp., 643 F.3d 190, 197-98 (7th Cir. 2011). However, courts should not "rubber-stamp an employer's assertions about which functions are essential," because doing so would allow employers to undermine the ADA by creating new essential functions as "post hoc rationalizations for unlawful discrimination." Hawkins v. George F. Cram Co., 397 F. Supp. 2d 1006, 1020-21 (S.D. Ind. 2005). Whether a function is essential is a question of fact. Brown v. Smith, 827 F.3d 609, 613 (7th Cir. 2016).
Plaintiff has presented evidence that would allow a reasonable jury to find that he could perform the essential functions of an operator in the Empty Case Room without accommodation. Plaintiff swore that from October 2009 to February 2011 he was capable of performing the essential functions of an operator in the Empty Case Room within his medical restrictions through various methods and techniques, including reducing the weight of the cases that he has to lift, and that he could do so without help or decreasing productivity. Dean disputes that plaintiff accomplished all the essential duties in the Empty Case Room within his medical restrictions from October 2009 to February 2011, that it was his "regular, pre-injury job," and that his duties "were not 'light' duties." According to Dean, during this time, plaintiff was assigned to temporary transitional duty (light duty) and was not required to perform all duties of the position. However, this dispute only highlights that there are genuine issues of material fact as to the essential functions of the job and whether plaintiff could do them with or without accommodation.2
Moreover, Steele has testified that he is aware of plaintiff's permanent restrictions and believes that plaintiff can perform the essential functions of the operator job in the Uniloy Room utilizing various methods and accommodations without violating his medical restrictions, requiring his duties to be reassigned to another operator, creating a safety hazard, or having a noticeable impact on productivity. Further, Greg Munks, a veteran operator for Dean including *709seven years as a foreman in the Empty Case Room, reviewed plaintiff's permanent restrictions and believed that he could "definitely" do the job.
Dean argues that plaintiff, Steele and Munks cannot offer opinion testimony on these matters because they were not disclosed as experts by plaintiff's counsel and lack the requisite expertise to offer opinions on the ADA. Other than the general rule that all witnesses who are to give expert testimony under Rule 702 must be disclosed under Rule 26(a)(2)(A), Dean offers no authority to support its position that testimony concerning the essential function of a job has to be expert testimony that must be disclosed as such. Logic and case law support the opposite conclusion. For example, two of the factors to be considered in determining the essential functions of a given job are the work experience of past incumbents in the job and the current work experience of incumbents in similar jobs. This type of testimony will typically be provided by past and current incumbents of the job in question, not by ADA experts. Further, in Stern, the Seventh Circuit noted that expert testimony on the essential functions of a job is not necessary unless the job's essential functions are beyond the experience of most jurors. 788 F.3d at 293 n.11. The court cannot conclude that the ability to lift a certain amount of weight is a function beyond any juror's experience or ability to understand.
Dean also challenges as "self-serving" the statements in plaintiff's affidavit indicating that he could perform the essential functions of an operator in the Empty Case Room within his medical restrictions. However, Dean has failed to provide authority for striking this evidence or giving it no weight as Dean urges.3 This is not surprising because the authority is contrary to Dean's argument. See McKinney v. Office of Sheriff of Whitley Cty., 866 F.3d 803, 814 (7th Cir. 2017) ("[T]he [district] court was wrong to discount McKinney's testimony as 'self-serving, speculative, and conclusory.' Our cases for at least the past fifteen years teach that [s]elf-serving affidavits can indeed be a legitimate method of introducing facts on summary judgment."); United States v. Funds in Amount of One Hundred Thousand One Hundred & Twenty Dollars ($ 100120), 730 F.3d 711, 717 (7th Cir. 2013) ("To reject testimony because it is unsubstantiated and self-serving is to weigh the strength of the evidence or make credibility determinations-tasks belonging to the trier of fact.").
Dean argues further that this court cannot consider accommodations proposed by plaintiff for the first time at summary judgment to determine whether plaintiff was a qualified individual under the ADA. According to Dean, the only accommodations properly before the court were identified by plaintiff in his amended complaint: (1) permanent light duty, (2) placement in another position, or (3) an unspecified work adjustment. Dean maintains that each of these accommodations are unreasonable. Dean complains that plaintiff "now suggests a litany of accommodations" that plaintiff never asked *710Dean to provide. However, what plaintiff is now maintaining is that he could do the essential functions of an operator in the Empty Case Room without any accommodation from Dean through self-accommodation.
For these reasons, the court finds that there are disputed facts as to whether plaintiff can perform the essential functions of the job with or without reasonable accommodation precluding summary judgment on Count I.
2. Retaliatory Discharge
Dean contends that plaintiff's retaliatory discharge claim fails because the terms and conditions of his employment did not change after he filed his IWCA claim, and he was later discharged for the legitimate nondiscriminatory reason that his seniority lapsed under the CBA after he voluntarily left employment and was unable to return to work for 60 months due to medical issues. In response, plaintiff argues that Dean has not moved for summary judgment on his retaliatory refusal to recall claim and therefore cannot have summary judgment on Count II; and there is a genuine issue of material fact as to whether Dean's refusal to recall plaintiff to work and consequent discharge were causally related to his protected IWCA activity.
Under Illinois law, there is "a cause of action for retaliatory discharge where an employee is terminated because of his actual or anticipated exercise of workers' compensation rights." Phillips v. Cont'l Tire The Americas, LLC, 743 F.3d 475, 477 (7th Cir. 2014). The cause of action also lies where an employee is not returned to work because of his actual or anticipated exercise of workers' compensation rights. See 820 ILCS 305/4(h) ("It shall be unlawful for any employer ... to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act."). To establish this cause of action, plaintiff must prove: "(1) that he was an employee before the injury; (2) that he exercised a right granted by [IWCA]; and (3) that he was discharged [or not returned to work] and that the discharge [or failure to return to work] was causally related to his pursuit of a claim under the [ICWA]." Phillips, 743 F.3d at 477.
Plaintiff argues that Dean has not moved for summary judgment on his claim that Dean failed to return him to work in retaliation for his IWCA activity. Dean agrees that it has not moved for summary judgment on this claim, but maintains that plaintiff should not be able to add this claim at this late stage of the litigation and, in any event, it is entitled to summary judgment on that claim as well as plaintiff's claim based on his discharge. Count II of plaintiff's amended complaint clearly contains a claim based on Dean's retaliatory failure to return him to work as well as retaliatory discharge:
79. As described above, during the period August 7, 2014 to February 2016, Dean Foods, without undue hardship, could have allowed Richard to RTW in his former light/limited duty position, or in a comparable one within his permanent medical restrictions, placed him in another position that he was qualified and able to perform, and/or granted him another reasonable accommodation to allow him to RTW.
80. Dean Food's refused to reasonably accommodate Richard because of his IWCA-protected activities.
81. Also, as described above, Dean Foods failed to engage in an interactive process to identify potential work adjustments that would have allowed Richard to return to work in a position consistent *711with the limitations related to his disability because of his of his IWCA-protected activities.
ECF No. 6 ¶¶ 79-81 (emphasis added). Moreover, Dean's motion and briefs filed in support address both types of claims because there is little to no distinction in how the claims are analyzed.
Count II boils down to whether there is a genuine issue of material fact as to whether there was a causal relation between plaintiff's IWCA activity and Dean's refusal to return plaintiff to work in August 2014, which resulted in a lapse in plaintiff's seniority under the CBA and, in turn, plaintiff's eventual discharge from employment. Dean contends that plaintiff was not returned to work because he was not able to perform the essential functions of the job with or without reasonable accommodation and was not eligible for TTDP, and that plaintiff's ultimate separation from employment was legitimate and non-discriminatory. However, this court has just held that there is a genuine dispute as to the material fact of whether plaintiff could perform the essential functions of the job with or without reasonable accommodation. This genuine issue of material fact also precludes this court from granting Dean summary judgment on Count II.
3. Punitive Damages
In his prayer for relief as to all counts, plaintiff seeks punitive damages among other relief. The parties dispute whether punitive damages are appropriate in this case. "Punitive damages are available for violations of the Americans with Disabilities Act if the defendant discriminated with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Equal Employ't Opportunity Comm'n v. Flambeau, Inc., 846 F.3d 941, 947 (7th Cir. 2017) (citing 42 U.S.C. § 1981a(b)(1) ). Similarly, punitive damages may be awarded under Illinois law for retaliatory discharge. Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 189, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978).
Dean contends that plaintiff is not entitled to punitive damages because Dean did not act with malice or reckless indifference when it (1) terminated his employment under the terms of the CBA and (2) determined that it could not reasonably accommodate plaintiff's permanent restrictions. Dean's argument, however, is both problematic and incomplete. It is problematic because Dean assumes that it in fact terminated plaintiff because it determined that it could not reasonably accommodate plaintiff. This court has already found that plaintiff has presented contrary evidence that would allow a reasonable jury to find that he could perform the essential functions of an operator in the Empty Case Room without accommodation. Dean does not contend that if the jury found that plaintiff could perform the essential functions of the job that it could not also find malice or reckless indifference. Dean's argument is incomplete because it does not contend that there is no record evidence of its malice or deliberate indifference to plaintiff's rights outside of the two circumstances to which it limits its argument. Therefore, Dean has not convinced the court that it is entitled to summary judgment on this issue.
B. Plaintiff's Motion for Partial Summary Judgment
Plaintiff seeks summary judgment on the first element of his ADA claims, that he is disabled as defined under the ADA. As explained in section II.A.1.a of this order, this court cannot conclude that plaintiff was not disabled as a matter of law. Nor can it come to the opposite conclusion as a matter of law. See *712Dadian v. Village of Wilmette, 269 F.3d 831, 838 (7th Cir. 2001) (holding that the decision as to whether plaintiffs were disabled under the ADA was a question for the jury). Thus, plaintiff's motion for partial summary judgment is denied in this regard.
Plaintiff also moves for summary judgment on Dean's affirmative defense that his ADA claim is barred under res judicata due to a prior arbitration award. Plaintiff argues that the arbitration between plaintiff's union and Dean does not preclude plaintiff's ADA claim because an arbitration is not a judicial proceeding that can have preclusive effect on a subsequent federal statutory civil rights action. Dean has failed to respond to this argument thereby waiving the issue. See Palmer v. Marion County, 327 F.3d 588, 597 (7th Cir. 2003) (deeming claim abandoned where plaintiff failed to discuss it in brief in opposition to summary judgment). Therefore, the court enters summary judgment for plaintiff on Dean's res judicata affirmative defense.
Next, plaintiff moves for summary judgment in its favor on Dean's undue hardship affirmative defense. In US Airways, Inc. v. Barnett, 535 U.S. 391, 401-02, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), the Supreme Court set forth an analysis to determine an undue hardship. It is the employer's burden to establish an undue hardship defense by showing that the accommodation would be unreasonable. Id. at 400-02, 122 S.Ct. 1516. The ADA lists the factors to be considered:
In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include--
(i) the nature and cost of the accommodation needed under this chapter;
(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
42 U.S.C § 12111 (10)(B). If the employer makes its showing, an employee can still argue that special circumstances warrant a finding that the accommodation is reasonable in a particular case. Barnett, 535 U.S. at 405, 122 S.Ct. 1516.
In response to this part of plaintiff's motion, Dean cites Warren's testimony that accommodating plaintiff's disability by requiring other operators to perform the tasks that plaintiff was restricted from doing would have slowed down production at the Huntley Plant and affected the efficiency of operations. In reply, plaintiff argues that the evidence of a lack of productivity was not quantified in any meaningful way by Dean.
The court agrees that Dean has not presented sufficient evidence to sustain its undue hardship affirmative defense at summary judgment. Summary judgment is "the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) The *713non-moving party must affirmatively demonstrate with "specific facts" that a genuine issue exists that require trial. Gabrielle M. v. Park Forest-Chi. Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 822 (7th Cir. 2003) (emphasis omitted). Dean has not identified evidence quantifying the financial burden that would accompany accommodating plaintiff as is necessary to evaluate the factors listed in § 12111 (10)(B). Consequently, the court enters summary judgment for plaintiff on Dean's undue hardship affirmative defense.
Plaintiff contends further that he is entitled to summary judgment on Dean's affirmative defense of failure to mitigate damages. In particular, plaintiff maintains that there is no evidence that he failed to exercise reasonable diligence to mitigate damages or evidence of a reasonable likelihood that he would have found comparable work by exercising reasonable diligence. The court disagrees. There is evidence in the record indicating that plaintiff did not seek employment for nearly a year after he was separated from Dean and the jury must determine whether his subsequent efforts constituted reasonable diligence to mitigate his damages. See Kasper v. Saint Mary of Nazareth Hosp., 135 F.3d 1170, 1176 (7th Cir. 1998) (holding that it was for the jury to decide whether plaintiff's job search constituted reasonable diligence). Therefore, plaintiff's motion for summary judgment on Dean's affirmative defense of failure to mitigate damages is denied.
III. CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is denied. Plaintiff's motion for partial summary judgment is granted in part and denied in part. The court enters summary judgment for plaintiff on Dean's res judicata and undue hardship affirmative defenses. The motion for partial summary judgment is denied in all other respects.
The facts deemed necessary to the disposition of the motions before the court are taken from the pleadings, the parties' statements of undisputed facts, the parties' responses thereto, the parties' statements of additional facts, and the evidence submitted in support. The facts are undisputed unless otherwise indicated. Plaintiff has filed a motion to deem undisputed certain facts that plaintiff contends Dean has failed to properly dispute. Plaintiff attacks Dean's responses to numerous paragraphs of plaintiff's Local Rule 56.1(a)(3) statement of material facts in support of its motion for partial summary judgment. As noted, the court has stated the facts necessary to the resolution of the pending motions and has indicated when a fact is disputed. It would not be an efficient use of this court's time to determine paragraph by paragraph whether certain facts, often not relevant to this court's resolution of the motions, have been adequately disputed. Accordingly, this motion is denied as moot.
The parties also dispute whether Dean met its obligations to engage in the interactive process when it met with plaintiff and his union representative on three occasions to discuss his medical restrictions and possible accommodations. Dean maintains that its three meetings with plaintiff and his union representative and regular communication with plaintiff preclude a finding that it failed to engage in the interactive process. Dean maintains further that any breakdown in the interactive process was the result of plaintiff's refusal to sign a HIPAA release. In response, plaintiff maintains that Dean made no effort at meaningful communication with plaintiff about accommodating his permanent restrictions under the pretext of an unnecessary HIPAA release. In support of his position that a HIPAA release was unnecessary, plaintiff contends that Dean is not a "covered entity" for purposes of the HIPAA privacy rule under 42 U.S.C. § 1320d-1(a)(3). In its reply, Dean does not contend that it was a "covered entity" but states that it was acting on the advice of counsel in good faith. Suffice it to say that disputed factual and legal issues remain with regard to this issue.
Dean maintains that plaintiff has made statements in his affidavit that contradict his deposition testimony. In particular, Dean points out that plaintiff testified during his deposition that he was on transitional or light duty from October 2009 to February 2011, which is contradicted by his statement in his affidavit that during this time he was able to accomplish all the essential duties of an operator in the Empty Case Room within his medical restrictions. The court does not agree that this is necessarily a contradiction. Plaintiff could have technically been on light duty while learning that he could do all the essential functions of the job through the means he described. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2315938/ | 144 F.Supp.2d 944 (2001)
WILKES ASSOCIATES, et al., Plaintiffs,
v.
HOLLANDER INDUSTRIES CORPORATION, et al., Defendants.
No. C-3-99-088.
United States District Court, S.D. Ohio, Western Division.
March 30, 2001.
*945 *946 Michael P. Moloney, Dayton, OH, Timothy W. Boyd, Atlanta, GA, for plaintiffs.
Robert P. Bartlett, Jr., Dayton, OH, Dina M. Cary, for defendants.
DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. # 31); DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. # 33); CONFERENCE CALL SET.
RICE, Chief Judge.
The Plaintiffs, Wilkes Associates ("Wilkes") and Weaver Associates ("Weaver"), *947 are manufacturers' representatives which formerly acted in that capacity for Defendant Hollander Industries, Corp. ("HCI"). Plaintiffs bring suit against HCI and its two former shareholders, Larry Hollander and Joseph Hollander, seeking to recover unpaid commissions and pre-judgment interest on those commissions.
The circumstances giving rise to this litigation are not in dispute. The parties agree that Wilkes and Weaver entered into contracts with HCI, under which they agreed to perform as manufacturers' representatives in exchange for the payment of commissions. They also agree that, in October, 1996, HCI entered into an agreement with MasterCasters, Inc. ("MCI"), whereby the latter purchased the assets of the former. As part of that agreement, MCI assumed some of HCI's liabilities, including unpaid commissions in the sum of $122,695.39, which HCI owed to Wilkes, and unpaid commissions in the sum of $73,222.69, which HCI owed to Weaver. Wilkes and Weaver were not informed of the agreement between HCI and MCI, prior to its execution. Defendants did not attempt to secure the consent of Wilkes or Weaver to having MCI assume the debt HCI owed to them. After that transaction, HCI conducted only a very limited number of transactions. In February, 1997, HCI's directors voted to dissolve that corporation. As a result of the dissolution, the money which had been on deposit in HCI's corporate bank account was distributed evenly between Larry and Joseph Hollander, HCI's two equal shareholders.[1]
Less than two weeks after the transaction between HCI and MCI had been consummated, Plaintiffs met with Robert Karban, the owner of MCI. The Plaintiffs did not, however, demand immediate payment of the sums owed to them by HCI, obligations which MCI had assumed. Rather, in lieu of immediate payment, they accepted promissory notes from MCI, which did not become payable until August 1, 1997, more than eight months later. MCI also agreed to execute promissory notes payable to the Plaintiffs for the commissions which they had earned from MCI, during the months of November and December, 1996, and January, 1997, periods of time following the asset purchase of HCI by MCI, but prior to HCI's vote to dissolve the corporation. In addition, MCI entered into an 10 year agreements with each of the Plaintiffs, which were intended to insure the payment of any commissions earned during that 10 year period.[2]
MCI did not flourish, and on July 17, 1998, Plaintiffs along with three other creditors filed a involuntary bankruptcy petition against that company. From October, 1996, when MCI purchased HCI's assets, until July, 1998, when the bankruptcy petition was filed, the Plaintiffs continued to act as manufacturers' representatives for MCI. The Plaintiffs have filed proofs of claims in the bankruptcy proceeding, seeking to recover the amount of the promissory notes which MCI had given them. Not having obtained any payment from MCI's bankruptcy estate, the Plaintiffs initiated this litigation on March 1, 1999.
In their Amended Complaint (Doc. # 11), the Plaintiffs set forth eleven claims for relief, to wit: breach of contract, negligent misrepresentation, fraudulent conveyance, *948 breach of fiduciary duty, failure to maintain corporate form (i.e., piercing HCI's corporate veil), joint venture, promissory estoppel, unjust enrichment/quantum meruit, constructive trust, attorney's fees and punitive damages. In their Amended Answer (Doc. # 12), the Defendants have interposed a number of defenses, including the affirmative defenses of waiver and laches.
This case is now before the Court on Defendants' Motion for Summary Judgment (Doc. # 31) and Plaintiffs' Motion for Summary Judgment (Doc. # 33). As a means of analysis, the Court will initially set forth the standards which are applicable to all motions for summary judgment, following which it will turn to the parties' arguments in support of and in opposition to the two such currently pending motions.
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Id. at 323, 106 S.Ct. 2548. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary *949 judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the factfinder. 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the non-moving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). See also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment...."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.
With their motion, the Defendants argue that they are entitled to summary judgment on the basis of their affirmative defenses of waiver and estoppel. With their motion, the Plaintiffs contend that they are entitled to summary judgment on their breach of contract claim.[3] The Plaintiffs have not sought summary judgment on the Defendants' affirmative defenses of waiver and laches. As a means of analysis, the Court will initially rule upon the Plaintiffs' Motion for Summary Judgment (Doc. # 33), which addresses the merits of their breach of contract claim, following which it will turn to the Defendants' Motion for Summary Judgment (Doc. # 31).[4]
*950 I. Plaintiffs' Motion for Summary Judgment (Doc. # 33)
Therein, the Plaintiffs initially argue that they are entitled to summary judgment on their claim that HCI breached the contracts between the parties by failing to pay all commissions owed under those contracts. In particular, Plaintiffs contend that the evidence establishes, as a matter of law, that contracts were formed with HCI, under which they agreed to act as manufacturers' representatives for HCI, with that company agreeing to pay them commissions for their services. The Plaintiffs further contend that the evidence establishes, as a matter of law, that they met their obligations under the contracts and that HCI breached those contracts by failing to pay all commissions earned by them. According to Plaintiffs, Wilkes is owed the sum of $122,695.39 for unpaid commissions and Weaver is owed the sum of $73,222.69 for such commissions. With the exception of the amount of the unpaid commissions (an issue which the Court discusses below), the Defendants do not contest any of the foregoing. Rather, they concede that such contracts existed, that the Plaintiffs performed their obligations under them and that the Plaintiffs have not been paid all the commissions for the services they performed for HCI. Therefore, the Court sustains the Plaintiffs' Motion for Summary Judgment (Doc. # 33), on the issue of liability, to the extent that, with it, they seek summary judgment on the elements of their breach of contract claim. In other words, the Plaintiffs will not have to prove the elements of a claim of breach of contract, i.e., the existence of a contract, performance of its contractual obligations by the party seeking relief, breach by the other party and damages suffered by the party seeking relief. See Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95, 661 N.E.2d 218 (1995). Whether the Plaintiffs will be required to prove the amount of their damages (as opposed to the fact that they suffered damages) is discussed below. Given that the Plaintiffs did not move for summary judgment on Defendants affirmative defenses of waiver and laches, the Court has not addressed them in connection with ruling on Plaintiffs' motion.
Whenever three parties enter into contractual relationships involving separate agreements, there is the possibility that one of the agreements will constitute a novation, whereby the obligations of one party are extinguished as a result of another party being substituted as the obligor. Plaintiffs argue that there was not a novation of their agreements with HCI, whereby that entity's obligations to pay the debts it owed them was extinguished, with MCI being substituted as the obligor.[5] Under the law of Ohio, novation is an affirmative defense. See e.g., Sheet Metal Workers National Pension Fund v. Bryden House Limited Partnership, 130 Ohio App.3d 132, 139, 719 N.E.2d 646, 651 (1998); Bahner's Auto Parts v. Bahner, 1998 WL 470494 (Ohio App.1998); Todd v. *951 Berk, 1992 WL 315510 (Ohio App.1992). Rule 8(c) of the Federal Rules of Civil Procedure requires that a defendant plead all affirmative defenses in its answer. Generally, the failure to set forth an affirmative defense in an answer results in its waiver. Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir.1994). Although the Defendants do not expressly mention novation in their Amended Answer, they allege with their Eighth Defense that MCI expressly agreed to assume and to discharge the accounts payable to the Plaintiffs, which were outstanding at the time of the agreement between HCI and MCI, and that the Plaintiffs received promissory notes from MCI for the amounts HCI owed to them. The Court construes those allegations as raising the affirmative defense of novation. The Court agrees with the Plaintiffs, however, that they are entitled to summary judgment on that affirmative defense.
In Moneywatch Cos. v. Wilbers, 106 Ohio App.3d 122, 665 N.E.2d 689 (1995), the court reviewed the standards which must be applied to ascertain whether a novation has occurred:
A novation occurs "where a previous valid obligation is extinguished by a new valid contract, accomplished by substitution of parties or of the undertaking, with the consent of all the parties, and based on valid consideration." McGlothin v. Huffman (1994), 94 Ohio App.3d 240, 244, 640 N.E.2d 598, 601. In order to effect a valid novation, all parties to the original contract must clearly and definitely intend the second agreement to be a novation and intend to completely disregard the original contract obligation. Citizens State Bank v. Richart (1984), 16 Ohio App.3d 445, 446, 16 OBR 516, 517-518, 476 N.E.2d 383, 385-386; Sherwin-Williams Co. v. Glenn Paint & Wall Paper Co. (Ohio App.1927), 6 Ohio Law Abs. 101 (novation is an agreement to release a previous debtor and look only to a subsequent debtor). In addition, to be enforceable a novation requires consideration. Wilson v. Lynch & Lynch Co., L.P.A. (1994), 99 Ohio App.3d 760, 651 N.E.2d 1328. A novation can never be presumed. Citizens State Bank, 16 Ohio App.3d at 446, 16 OBR at 517-518, 476 N.E.2d at 385-386.
Id. at 125, 665 N.E.2d at 691. Herein, the uncontroverted evidence is that neither Plaintiff was informed of the transaction between HCI and MCI, until after it had been entered into by those entities. Consequently, neither Wilkes nor Weaver consented to have MCI substituted for HCI as the party responsible for paying the commissions owed them by HCI. Accordingly, the Court sustains the Plaintiffs' Motion for Summary Judgment (Doc. # 33), to the extent that, with it, they seek summary judgment on Defendants' Eighth Defense, which this Court has construed as raising the affirmative defense of novation.
In addition, the Plaintiffs contend that Larry and Joseph Hollander, the two shareholders of HCI, can be held personally liable for the unpaid commissions, to the extent that they received distributions from HCI upon its dissolution.[6] The Court agrees. In Kesselring Ford, Inc. v. Cann, 68 Ohio App.2d 131, 427 N.E.2d 785 (1980), the First District Court of Appeals addressed the question of whether a shareholder of a dissolved corporation could be held personally liable for the debts of the corporation. Therein, the plaintiff purchased the assets of Cann Ford, Inc. That agreement provided that the purchase for the assets was subject to a future adjustment to account for any fluctuation between *952 the amount of inventory on hand on the date the agreement had been signed and the date upon which the assets were actually transferred. Shortly after that transaction had been consummated, Cann Ford, Inc., was voluntarily dissolved and its remaining assets distributed to its shareholders. The plaintiff brought suit against the estate of one of those shareholders under the adjustment clause in the agreement, alleging that the value of the inventory had diminished after the agreement had been signed. The trial court dismissed the case for failure to state a claim upon which relief can be granted. The appellate court reversed, writing:
It is beyond cavil that the assets of a dissolved corporation are regarded as a trust fund from which claims against the corporation must be satisfied. It is further true that such claims against the corporate assets may be pursued against former shareholders to the extent of the assets actually distributed to them. See, generally, 13 Ohio Jurisprudence 2d 423, 424, Corporations, Section 934. See, also, Leyman Corp. v. Piggly-Wiggly Corp. (1951), 90 Ohio App. 506, 103 N.E.2d 399; Krug v. Roberts (1923), 1 Ohio Law Abs. 750.
Id. at 133, 427 N.E.2d at 787. Accord, State of Ohio ex rel. Montgomery v. Louis Trauth Dairy, Inc., 1996 WL 343440 (S.D.Ohio 1996); North Consultants, Inc. v. Jane Stimel-Givens, 1985 WL 10281 (Ohio App.1985); City Loan Business Service Co. v. Miner-Oyer Supply, Inc., 1985 WL 7257 (Ohio App.1985).
Nevertheless, Larry and Joseph Hollander argue that personal liability cannot be imposed upon them. In support of that contention, those Defendants cite Ohio Revised Code § 1701.88(D), which addresses the authority of the directors of a dissolved corporation to wind up its affairs. In particular, § 1701.88(D) authorizes directors of such a corporation to distribute the remainder of its assets among the shareholders, "after paying or adequately providing for the payment of all known obligations of the corporation." According to Larry and Joseph Hollander, they adequately provided for the payment of HCI's obligations by entering into the agreement with MCI, under which the latter assumed those liabilities. Even if this Court were to assume that the agreement adequately provided for the payment of HCI's obligations, it could not conclude that this fact would relieve Larry and Joseph Hollander of liability, as shareholders of HCI. Section 1701.88(D) addresses the authority of a dissolved corporation's directors to distribute its assets to shareholders. That statute does not address the liability of a shareholder, who has received a distribution of a dissolved corporation's assets. Thus, the language of that statute does not impact upon the rule set forth in Kesselring, that a shareholder of a dissolved corporation holds its assets in trust for the corporation's creditors and that, therefore, he is liable to the creditors of a dissolved corporation to the extent of the distribution of corporate assets received by him.
Accordingly, the Court sustains the Plaintiffs' Motion for Summary Judgment (Doc. # 33), to the extent that, with it, they argue that personal liability may be imposed upon Larry and Joseph Hollander, for HCI's breach of contract, to the extent that they received distributions of that corporation's assets.
Finally, there is the question of the Plaintiffs' damages. It is not controverted that the Plaintiffs have suffered damages, in that they have not been paid all of the commissions they were owed. It is agreed that when HCI sold its assets to MCI, the former owed $122,695.39 to Wilkes and $73,222.69 to Weaver. It is also undisputed *953 that MCI made certain payments to Wilkes and Weaver after that transaction. Defendants argue that they are entitled to set-off those payments against the amount of unpaid commissions owed to the Plaintiffs. If those payments were to compensate the Plaintiffs for the unpaid commissions (i.e., the commissions owed by HCI at the time it sold its assets to MCI), the Defendants are unquestionably entitled to such a set-off. If, on the other hand, the payments to the Plaintiffs were for the purpose of compensating them for services they had performed for MCI after it had purchased HCI's assets, there is no legal basis for holding that Defendants are entitled to a set-off. Daryl Wilkes and Richard Weaver have submitted affidavits in which they state that all payments they received from MCI were compensation for commissions they had earned, after MCI had purchased HCI's assets. The Defendants have not submitted contrary evidence. Accordingly, the Court concludes that the evidence fails to raise a genuine issue of material fact as to whether the Defendants are entitled to a set-off for some or all of the payments Plaintiffs received from MCI. They are not.
However, there is another component to the Plaintiffs' request for damages, to wit: their contention that, in accordance with Kesselring, supra, personal liability can be imposed upon Larry and Joseph Hollander for the breach of contract committed by HCI. As previously discussed, liability can be imposed upon those individuals only to the extent that HCI's assets were distributed to them upon its dissolution. Construing the evidence in the manner most favorable to the Defendants, as the parties against whom Plaintiffs' motion is directed, Larry and Joseph Hollander each received approximately $200,000 in assets from HCI. Although each of those Defendants was given assets in excess of the total unpaid commissions the Plaintiffs seek to collect, Plaintiffs have also asserted that they are entitled to recover prejudgment interest. Since the total amount of principal and prejudgment interest Plaintiffs may ultimately recover in this action is not known, the Court cannot enter summary judgment in favor of Plaintiffs, indicating that they are entitled to recover the unpaid commissions and prejudgment interest from the individual Defendants.
In sum, the Court sustains in part and overrules in part the Plaintiffs' Motion for Summary Judgment (Doc. # 33). That motion is sustained as it relates to liability, i.e., the elements of Plaintiffs' breach of contract claim, the fact that there was no novation, the potential liability of Larry and Joseph Hollander under Kesselring, supra, and the inability of the Defendants to obtain a set-off for the amount that MCI paid to the Plaintiffs. That motion is overruled as it relates to the Plaintiffs' assertion that they may recover principal and prejudgment interest from Larry and Joseph Hollander. The extent of the Plaintiffs' recovery from those individuals is limited by the distributions they received from HCI.
II. Defendants' Motion for Summary Judgment (Doc. # 31)
With this motion, the Defendants argue that they are entitled to summary judgment on Plaintiffs' breach of contract claim on the basis of their affirmative defenses of waiver and laches. In addition, the Defendants argue that they are entitled to summary judgment on many of the Plaintiffs' other claims. As a means of analysis, the Court will address the two affirmative defenses in the above order, following which it will turn to the Defendants' arguments concerning the Plaintiffs' other claims.
*954 A. Waiver
According to the Defendants, the Plaintiffs waived their right to recover the unpaid commissions from them, by attempting to obtain such payment from MCI. Under the law of Ohio, waiver is defined as the voluntary relinquishment of a known right.[7]Chubb v. Ohio Bureau of Workers' Compensation, 81 Ohio St.3d 275, 278, 690 N.E.2d 1267, 1269 (1998). "As a general rule, the doctrine of waiver is applicable to all personal rights, whether secured by contract, conferred by statute, or guaranteed by the Constitution, provided that the waiver does not violate public policy."[8]State ex rel. Athens Cty. Bd. of Commrs. v. Gallia, Jackson, Meigs, Vinton Joint Solid Waste Mgt. Dist. Bd. of Directors, 75 Ohio St.3d 611, 616, 665 N.E.2d 202, 207 (1996) (citation and internal quotation marks omitted). A waiver may be either express or implied from a party's conduct. Griffith v. Linton, 130 Ohio App.3d 746, 721 N.E.2d 146 (1998); Goetz v. First Benefits Agency, Inc., 1997 WL 669727 (Ohio App.1997).
As is indicated, the Defendants contend that the Plaintiffs waived their right to recover the unpaid commissions from them by attempting to collect from MCI. As the Defendants point out, the Plaintiffs took promissory notes from MCI, under which the initial payment of the unpaid commissions was not due until August 1, 1997. Indeed, the Plaintiffs pursued MCI, to the extent of joining with others to file an involuntary bankruptcy petition against it. It is apparent from the foregoing that the Defendants are relying upon an implied waiver theory, there being no evidence that either of the Plaintiffs expressly waived its right to attempt to collect the unpaid commissions from the Defendants. In support of their assertion that the Plaintiffs' impliedly waived that right, the Defendants rely upon State ex rel. Hess v. City of Akron, 132 Ohio St. 305, 7 N.E.2d 411 (1937). The plaintiff therein was an employee of the defendant. A municipal ordinance guaranteed that plaintiff would be paid a particular salary. In 1931, as a result of increased tax delinquencies, the defendant concluded that it could no longer afford to pay all of its employees the salaries that were mandated by ordinance. Instead of laying off employees, the defendant reduced its employees' salaries. Over the next two years and four months, the plaintiff was paid a reduced salary, twice a month. The plaintiff never protested that he was being underpaid; rather, each time he received payment, the plaintiff signed a payroll sheet which indicated that he had been paid in full. Thereafter, he brought an a mandamus action in the Court of Appeals, seeking to recover the difference between the amount he had been paid and the amount of his salary as set forth in the ordinance. Based upon the foregoing evidence, the Court of Appeals found that the plaintiff had waived his right to be paid the amount set forth in the ordinance. Upon appeal, the Ohio Supreme Court affirmed, concluding that "his conduct was wholly inconsistent with any theory except the plainest and simplest sort of waiver." Id. at 307-08, 7 N.E.2d 411.
Hess is both factually and procedurally distinguishable from the instant litigation. Herein, there is no evidence that the Plaintiffs signed any type of document analogous to those signed by the plaintiff in Hess, indicating that they were looking *955 solely to MCI for payment. Moreover, the Ohio Supreme Court therein affirmed the decision of the Court of Appeals concerning waiver, after a trial on the merits. Herein, the Defendants seek summary judgment on their affirmative defense, arguing that the evidence establishes that defense as a matter of law.
It bears emphasis that, under the law of Ohio, it is for the jury to determine whether a party's conduct constitutes a waiver of its rights. See Monteith v. Community Mutual, 1994 WL 183642 (Ohio App.1994); Matlack, Inc. v. Allied-Signal, Inc., 1992 WL 329399 (Ohio App.1992); Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1216 (6th Cir.1987). Herein, the jury could find that the Plaintiffs voluntarily relinquished their right to pursue the Defendants for the unpaid commissions, by attempting to collect from MCI through the acceptance of delayed payment notes. The only basis for the Plaintiffs' seeking payment from MCI was MCI's assumption of HCI's liabilities in the agreement between those two corporations. By seeking to enforce rights against MCI, one could argue, the Plaintiffs were acknowledging not only that MCI had assumed HCI's obligations, but also that the latter's obligations were extinguished as a result. On the other hand, the jury could find that the Plaintiffs did not so relinquish their rights against HCI, under the following theory. The Plaintiffs had acted as manufacturers' representatives for HCI and wished to continue to do so for MCI, which had taken over the business of the former. The jury could further conclude that the Plaintiffs, aware that MCI was obligated by its agreement with HCI to pay them the commissions which they were owed, made concessions to MCI, concerning those payments, in order to ensure that it would stay in business (thus being able to collect commissions owed them by Defendants), rather than relinquishing their rights to pursue payment from those Defendants.
Accordingly, the Court overrules the Defendants' Motion for Summary Judgment (Doc. # 31), to the extent that, with it, they argue that they are entitled to summary judgment on Plaintiffs' breach of contract claim on the basis of their affirmative defense of waiver.
B. Laches
In State ex rel. Eaton Corp. v. Industrial Commission, 80 Ohio St.3d 352, 686 N.E.2d 507 (1997), the Ohio Supreme Court reiterated:
Laches is "an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party." Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, 15 OBR 134, 135, 472 N.E.2d 328, 329. That prejudice, moreover, must be material prejudice. Id. at 35-36, 15 OBR at 135, 472 N.E.2d at 329.
Id. at 356, 686 N.E.2d at 510. See also, Smith v. Smith, 168 Ohio St. 447 156 N.E.2d 113 (1959) (holding in ¶ 3 of the syllabus that "[d]elay in asserting a right does not of itself constitute laches, and in order to successfully invoke the equitable doctrine of laches it must be shown that the person for whose benefit the doctrine will operate has been materially prejudiced by the delay of the person asserting his claim"). Thus, the party asserting that its opponent's claim is barred by laches must prove the following elements, to wit: 1) unreasonable delay or lapse of time in asserting a right; 2) absence of an excuse for the delay; 3) knowledge, actual or constructive, of the injury or wrong; and 4) material prejudice to the party asserting laches. State ex rel. Mallory v. Public Emp. Retirement Bd., 82 Ohio St.3d 235, 244, 694 N.E.2d 1356, 1363 (1998).
*956 Herein, this Court need only consider whether the Defendants have suffered material prejudice as a result of the Plaintiffs' delay in asserting their rights. According to the Defendants, the Plaintiffs' delay in demanding payment from HCI caused them to suffer prejudice, because a demand before that corporation had dissolved would have permitted it either to settle the claims or to decline to dissolve. Defendants contend that the dissolution of HCI serves as the only basis for imposing personal liability upon Larry and Joseph Hollander. Therefore, if the Plaintiffs had made a timely demand, Defendants' argument continues, Larry and Joseph Hollander would have been protected from liability by HCI's corporate shield. Accepting all of Defendants' factual premises as correct, the Court cannot conclude that they constitute material prejudice. In accordance with Kesselring, supra, liability can be imposed upon Larry and Joseph Hollander, because, as shareholders of HCI, they received disbursements upon the dissolution of that corporation. They may be held liable only to the extent that they received such disbursements. If the Plaintiffs had demanded payment from HCI, Larry and Joseph Hollander would not have been potentially liable for the corporation's debts to the Plaintiffs; however, they would have received less money from HCI when it dissolved, sums reduced by the amount of any payment to Plaintiffs. The delay in making the demand may expose Larry and Joseph Hollander to liability; however, by HCI's not making payments of all commissions owed to Plaintiffs, prior to dissolution, the individual Defendants received additional funds from HCI, with which they can discharge that liability. In other words, the Defendants have presented no evidence (let alone established as a matter of law) that they will be worse off financially, if liability is imposed upon them, than they would have been, if Plaintiffs had demanded payment before HCI dissolved. The Court's conclusion that the Defendants have not suffered material prejudice is supported by the decision of the Franklin County Court of Appeals in Bank One Trust Co. N.A. v. LaCour, 131 Ohio App.3d 48, 721 N.E.2d 491 (1999). Therein, the plaintiff mistakenly disbursed funds to the defendant. It took the plaintiff three years to discover its error and another year to file suit. When the plaintiff sued to recover the mistakenly disbursed funds, the defendant raised the affirmative defense of laches, asserting that plaintiff's four-year delay barred its lawsuit. After a bench trial, the trial court found that laches did not bar the plaintiff's claim, since defendant had not suffered prejudice as a result of the delay. Upon appeal, the Franklin County Court of Appeals affirmed, noting that since the delay affected the defendant only by affording him the use of the mistakenly disbursed funds for a period of four years, he had not suffered material prejudice. Similarly, herein, the failure of Plaintiffs to demand payment before HCI dissolved has merely afforded Larry and Joseph Hollander the use of funds which that corporation would not have been able to distribute if a timely demand had been made.
Accordingly, the Court overrules Defendants' Motion for Summary Judgment (Doc. # 31), as it relates to their affirmative defense of laches.
C. Plaintiffs' Other Claims
The Defendants argue, in the main, that their affirmative defenses of waiver and laches warrant the entry of summary judgment in their favor on Plaintiffs' other claims, i.e., negligent misrepresentation, fraudulent conveyance, breach of fiduciary duty, failure to maintain corporate form (i.e., piercing HCI's corporate veil), joint *957 venture, promissory estoppel, unjust enrichment/quantum meruit, constructive trust, attorney's fees and punitive damages. In support of that argument the Defendants merely reference their arguments pertaining to waiver and laches as they relate to Plaintiffs' breach of contract claim. Given that the Court has concluded above that those affirmative defenses do not entitle Defendants to summary judgment on the breach of contract claim, the Court similarly concludes that those defenses do not serve as the basis for entering summary judgment in favor of Defendants on Plaintiffs other claims.
Defendants argue that they are entitled to summary judgment on Plaintiffs' negligent misrepresentation claim, because the Plaintiffs have not suffered any damages as a result of their alleged misrepresentation.[9] The Plaintiffs' have not responded to Defendants' request for summary judgment on the negligent misrepresentation claim. Plaintiffs allege that they asked Larry and Joseph Hollander whether they intended to sell the assets of HCI and were told that no such sale was planned. Doc. # 11 at ¶¶ 29-30. Plaintiffs contend that, had they known about the sale of assets to MCI, they would have insisted that provisions be placed in the agreement by which that sale was consummated, adequately protecting their interests in being paid the commissions which they were owed. Id. at ¶ 31. Under the law of Ohio, damages are an essential element of a claim of negligent misrepresentation. See Textron Financial Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 684 N.E.2d 1261 (1996). When a claim of negligent misrepresentation arises out of a contractual relationship between the parties, those damages must be in addition to those which are attributable to the breach of contract. Id. Herein, the Plaintiffs negligent misrepresentation claim arises out of the contractual relationship between the parties. Plaintiffs are seeking to recover the unpaid commissions, the same damages they request with their breach of contract claim. They have not alleged, argued or presented evidence that they suffered a type of damages in addition to or separate and apart from the unpaid commissions. Accordingly, the Court sustains the Defendants' Motion for Summary Judgment (Doc. # 31), as it relates to Plaintiffs' claim of negligent misrepresentation.
Defendants also seek summary judgment on Plaintiffs' claim with which they request that HCI's corporate veil be pierced. According to Defendants, that claim is redundant, given that the Plaintiffs can recover from Larry and Joseph Hollander pursuant to Kesselring, supra. While the piercing the corporate veil claim is an alternative means of imposing personal liability upon Larry and Joseph Hollander, it is not coextensive with Plaintiffs' theory of recovery under Kesselring. Under the legal principles set forth therein, the Plaintiffs' recovery is limited to the amount of assets which were distributed to HCI's shareholders. Recovery under a piercing the corporate veil theory would not be so limited. Accordingly, the Court overrules the Defendants' Motion for Summary Judgment (Doc. # 31), as it relates to Plaintiffs' claim of piercing the corporate veil.[10]
*958 In sum, the Court sustains in part and overrules in part the Defendants' Motion for Summary Judgment (Doc. # 31). That motion is sustained as it relates to Plaintiffs' claim of negligent misrepresentation and is otherwise overruled.
The Court has scheduled a telephone conference call on Tuesday, April 24, 2001, at 8:30 a.m., for the purpose of selecting a trial date and other dates leading to the resolution of this litigation.
NOTES
[1] The amount of those distributions is controverted. According to the Plaintiffs, Larry and Joseph Hollander each received approximately $600,000, while the Defendants contend that each received approximately $200,000.
[2] There is no evidence or assertion that any of the Defendants was a party to the notes MCI executed in favor of Plaintiffs or the agreements between Plaintiffs and MCI.
[3] In their motion, the Plaintiffs have not addressed their other ten claims for relief, i.e., negligent misrepresentation, fraudulent conveyance, breach of fiduciary duty, failure to maintain corporate form (i.e., piercing HCI's corporate veil), joint venture, promissory estoppel, unjust enrichment/quantum meruit, constructive trust, attorney's fees and punitive damages. Given that the Plaintiffs have not requested summary judgment on all their claims or on the Defendants' affirmative defenses, their motion is in actuality one for partial summary judgment.
[4] Plaintiffs have invoked this Court's diversity jurisdiction; therefore, it must apply Ohio's choice-of-law principles. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In their memoranda, the parties have cited and relied upon the law of Ohio. Although HCI was a corporation organized under the laws of Ohio, which is also the state in which its principal place of business was located, Plaintiffs are alleged to be citizens of Tennessee and Pennsylvania. Consequently, one might argue that, under Ohio's choice-of-law principles, the substantive law of Tennessee or Pennsylvania must be applied in this litigation. Since the parties have not raised that argument and, further, given that they have relied upon the law of Ohio, this Court will apply the law of this state. See ECHO Inc. v. Whitson Co., Inc., 52 F.3d 702, 707 (7th Cir.1995) ("Where neither party argues that the forum state's choice-of-law rules require the court to apply the substantive law of another state, the court should apply the forum state's substantive law").
[5] The Defendants have not responded to Plaintiffs' request for summary judgment on the issue of whether there was a novation.
[6] It bears emphasis that HCI, rather than its shareholders Larry and Joseph Hollander, entered into the contractual relationships with the Plaintiffs.
[7] It is undisputed that the Plaintiffs knew of their right to seek recovery of the unpaid commissions from HCI, the party with which they had contracted.
[8] There is no basis for concluding that Plaintiffs' waiver of their right to pursue the Defendants for the unpaid commissions would violate the public policy of Ohio.
[9] The Defendants also seek summary judgment on Plaintiffs' fraudulent misrepresentation claim. Given that the Plaintiffs have not plead such a claim, it is not necessary for the Court to address the Defendants' arguments in that regard.
[10] The Court notes that the Plaintiffs have not mentioned any of their claims, other than that for breach of contract, in their Motion for Summary Judgment or in their opposition to Defendants' motion. Moreover, many of the Plaintiffs' claims appear to be redundant. Therefore, in order to streamline this litigation for trial, the Court directs Plaintiffs to file, within 20 days from date, a statement indicating which, if any, of their, claims other than that for breach of contract, which they intend to present at trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263201/ | 50 Cal.4th 1068 (2010)
116 Cal. Rptr. 3d 217
239 P.3d 670
RANDOLPH CLIFTON KLING, Petitioner,
v.
THE SUPERIOR COURT OF VENTURA COUNTY, Respondent;
THE PEOPLE, Real Party in Interest.
No. S176171.
Supreme Court of California.
October 18, 2010.
*1071 Duane Dammeyer and Steven P. Lipson, Public Defenders, and Michael C. McMahon, Chief Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Gregory D. Totten, District Attorney, Michael D. Schwartz, Special Assistant District Attorney, Cheryl M. Temple and Michelle J. Contois, Deputy District Attorneys, for Real Party in Interest.
Bilenda Harris-Ritter for the National Crime Victim Law Institute and the California Voice for Crime Victims, Inc., as Amici Curiae on behalf of Real Party in Interest.
OPINION
BAXTER, J.
Under Penal Code section 1326, subdivision (c), a person or entity responding to a third party subpoena duces tecum in a criminal case must deliver the subject materials to the clerk of court so that the court can hold a hearing to determine whether the requesting party is entitled to receive them. When, as here, the defendant is the requesting party, the court may conduct that hearing in camera. (Pen. Code, § 1326, subd. (c).)
What is the People's role at such a hearing? The Court of Appeal held that the People were entitled to notice of, and to be present at, the hearing once the responsive documents have been produced, but were not permitted to learn the identity of the subpoenaed party or the nature of the documents requested. The Court of Appeal further held that, unless the prosecutor has been requested by a crime victim to enforce his or her rights under Proposition *1072 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law" (Cal. Const., art. I, § 28), the prosecutor is not authorized to argue or otherwise participate at the in camera hearing, except to answer any questions the trial court may have, and, furthermore, that the entire hearing may be held ex parte.
(1) The parties now agree that the Court of Appeal erred in unduly restricting the People's role at the in camera hearing, in that the prosecutor may participate in and argue at the hearing, if the trial court so desires. (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 750-752 [76 Cal.Rptr.3d 276, 182 P.3d 600].) We find that the Court of Appeal also erred in categorically denying the People the right to discover the identity of the subpoenaed party and the nature of the documents sought under the third party subpoena (including the identity of the person to whom the documents pertain), inasmuch as the People's due process right to a meaningful opportunity to be heard may typically require at least that much information. The constitutional rights of the defendant can usually be protected by redacting those materials that disclose privileged information or attorney work product, by conducting portions of the in camera hearing ex parte, and by withholding disclosure to the prosecution of the records produced under the subpoena until the defense has determined that it intends to offer them in evidence at trial. (Pen. Code, §§ 1054.3, subd. (a), 1326, subd. (c).) We therefore reverse the judgment of the Court of Appeal and remand the matter for further proceedings.
BACKGROUND
A Ventura County grand jury charged petitioner Randolph Clifton Kling with the murders of Michael and William Budfuloski with the special circumstances of multiple murder, lying in wait, and financial gain, in addition to other felony counts. The statement of facts and procedural history below is drawn largely from the opinion of the Court of Appeal.
Prior to trial, the defense served subpoenas duces tecum on a number of third parties. Kling requested the trial court not to disclose information concerning the subpoenas to the prosecution, contending that such information would reveal defense strategies and work product. The prosecution responded that the People "have a right to know the items subpoenaed ... and what the court is contemplating releasing, to determine if the People have standing to object, to alert other persons who may have standing to object, or to join the defendant's attempt to obtain information therein." On February 5, 2008, the trial court ordered that all documents received by the court pursuant to a defense subpoena were "to be logged in the docket, noting the date received and the party supplying the documents." The court stated that it found "no authority supporting the defense request to have no documentation *1073 in the file identifying the receipt of subpoenaed documents and the agency or person from whom they were received" and concluded that such information was not privileged.
The subpoenaed records were delivered to the clerk of the court and examined by the court in camera in the presence of defense counsel. (Pen. Code, § 1326, subd. (c).) The court released the records to the defense and ordered transcripts of the in camera hearings sealed. The People received no notice as to some of these hearings.
On May 20, 2008, relying on our recent decision in People v. Superior Court (Humberto S.), supra, 43 Cal.4th 737, the People requested that the trial court examine the transcripts of all previously closed hearings and unseal any portions of the transcripts that did not reveal defense theories of relevance or other privileged information. The trial court issued an order unsealing the transcripts of in camera hearings held on November 28, 2007, and March 28, April 8, April 28, and May 1, 2008, and a portion of the transcript of the proceedings on February 20, 2008. The court stated that the transcripts it had ordered unsealed contained "nothing but cursory discussions of subpoenaed records, nothing about defense strategy" and announced its intention to review the transcripts of December 27, 2007, and March 6, 2008, and to issue a ruling whether those transcripts should be unsealed as well. The trial court stayed its order unsealing the transcripts to permit defense counsel to seek writ relief.
After Kling filed the instant petition for writ of prohibition and the People filed a return, the Court of Appeal granted relief in a published opinion, declaring that "[n]o statutory or constitutional authority permits disclosure to the prosecution of the names of the third parties to whom defense subpoenas have been issued or the nature of the records produced." The court added that if, following receipt of the documents, a trial court were to conduct an in camera hearing under Penal Code section 1326, subdivision (c), the prosecution's role at such a hearing would be limited: "Unless the prosecutor has been requested by a victim to enforce rights guaranteed by Proposition 9, the prosecutor is not statutorily authorized to argue or otherwise participate in the in camera hearing, but may be available to answer any questions the trial court has."
While the writ was pending, the jury convicted Kling on all counts and found true the multiple-murder special circumstance as well as the lying-in-wait special circumstance as to one of the murders and set the punishment at *1074 death.[1] The Court of Appeal acknowledged that these circumstances "may render the matter moot" but elected to resolve the petition "[b]ecause the issue here is a matter of public importance and may likely recur." Indeed, after the writ issued, the Clerk of the Ventura County Superior Court directed courtroom staff that the docket in criminal cases should no longer identify the third party from whom subpoenaed records have been received.
We granted the People's petition for review.
DISCUSSION
(2) "Documents and records in the possession of nonparty witnesses and government agencies other than the agents or employees of the prosecutor are obtainable by subpoena duces tecum." (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1318 [96 Cal.Rptr.2d 264].) In civil actions, documents produced in response to a subpoena duces tecum for business records may be delivered to the clerk of the court or, at the election of the subpoenaing party, made available for inspection and copying at the witness's business address. (Evid. Code, § 1560, subds. (b), (e).) This rule does not apply, however, in criminal actions. As we have explained, "[t]he issuance of a subpoena duces tecum pursuant to section 1326 of the Penal Code ... is purely a ministerial act and does not constitute legal process in the sense that it entitles the person on whose behalf it is issued to obtain access to the records described therein until a judicial determination has been made that the person is legally entitled to receive them." (People v. Blair (1979) 25 Cal.3d 640, 651 [159 Cal.Rptr. 818, 602 P.2d 738], citation omitted; see also People v. Superior Court (Humberto S.), supra, 43 Cal.4th at p. 751 ["It is undisputed that trial courts are authorized, indeed obligated, to regulate the use of subpoenas to obtain privileged third party discovery."].)
(3) Thus, "[i]n a criminal action, no party, or attorney or representative of a party, may issue a subpoena commanding the custodian of records or other qualified witness of a business to provide books, papers, documents, or records, or copies thereof, relating to a person or entity other than the subpoenaed person or entity in any manner other than that specified in subdivision (b) of Section 1560 of the Evidence Code" (Pen. Code, § 1326, subd. (c)), which provides for delivery of the materials to the clerk of court. (See also Pen. Code, § 1326, subd. (b) [the option of making the documents available for inspection and copying at the witness's business address (Evid. Code, § 1560, subd. (e)) "shall not apply to criminal cases"].) This restriction maintains the court's control over the discovery process, for if the third party *1075 "objects to disclosure of the information sought, the party seeking the information must make a plausible justification or a good cause showing of need therefor." (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1045 [130 Cal.Rptr.2d 672, 63 P.3d 228] (lead opn. of Werdegar, J.); see also id. at p. 1057 (conc. & dis. opn. of Moreno, J.).)
These provisions concerning third party subpoenas apply equally to the People and the defense. The Legislature granted the defense special protections, however, in the last two sentences of Penal Code section 1326, subdivision (c): "When a defendant has issued a subpoena to a person or entity that is not a party for the production of books, papers, documents, or records, or copies thereof, the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents. The court may not order the documents disclosed to the prosecution except as required by Section 1054.3." (See also Concurrence in Sen. Amends. on Assem. Bill No. 1249 (2003-2004 Reg. Sess.) as amended June 9, 2004, p. 1.) Consequently, "the defense is not required, on pain of revealing its possible strategies and work product, to provide the prosecution with notice of its theories of relevancy of the materials sought, but instead may make an offer of proof at an in camera hearing." (Alford v. Superior Court, supra, 29 Cal.4th at pp. 1045-1046 (lead opn. of Werdegar, J.); see also id. at p. 1056 (conc. & dis. opn. of Baxter, J.); id. at p. 1057 (conc. & dis. opn. of Moreno, J.).) We have subsequently clarified that sealing the defense filings is appropriate only if there is "a risk of revealing privileged information" and a showing "that filing under seal is the only feasible way to protect that required information." (Garcia v. Superior Court (2007) 42 Cal.4th 63, 73 [63 Cal.Rptr.3d 948, 163 P.3d 939] [discussing sealing of "Pitchess motion" affidavits (Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305])].)
(4) In People v. Superior Court (Humberto S.), supra, 43 Cal.4th 737, we addressed the role of the People at third party discovery proceedings under Penal Code section 1326 and declared that the People had the right to notice of the hearing and to be present. (43 Cal.4th at p. 749.) We also found that prosecutorial participation in third party subpoena hearings "is not prohibited" (ibid.), observing that "trial courts regularly permit prosecutorial participation in third party discovery," inasmuch as "`open proceedings involving the participation of both parties are the general rule in both criminal and civil cases'" (id. at p. 750). Without deciding whether a trial court is required to do so (id. at p. 750, fn. 9), we concluded that "a trial court is permitted to entertain argument from the opposing party relating to third party discovery" (id. at p. 750, italics added).
In this case, we once again apply these provisions where the defense in a criminal proceeding has issued third party subpoenas. The trial court here *1076 determined that the People were entitled to discover the identity of the subpoenaed party and the nature of the records being subpoenaed as well as to have unsealed those portions of the transcripts of the ex parte hearings that did not disclose defense strategy. Kling argues, and the Court of Appeal agreed, that although the People are entitled to notice of the hearing following the court's receipt of the subpoenaed documents, the People are categorically barred from discovering the identity of the subpoenaed party and the nature of the documents sought (unless or until the defense decides to use them at trial) and from reviewing any portion of the transcripts of the ex parte hearings, regardless of what was discussed. Kling's arguments as to why the People are not entitled to notice of the identity of the subpoenaed party or the nature of the documents sought, however, are based on misconceptions as to the scope and operation of the discovery statutes.
Kling argues first that the identity of the subpoenaed party and the nature of the requested documents must be concealed from the prosecution to compensate for what he calls the "asymmetrical and non-reciprocal" provisions in Penal Code section 1326 that "require a showing of entitlement to discovery from the defense, but not the prosecution." But, as stated above, the rules concerning subpoenas duces tecum in criminal cases are not asymmetrical or nonreciprocal, at least not in any way that disadvantages a criminal defendant. Even prior to the 2004 amendments to section 1326, the law provided that the issuance of a subpoena duces tecum "is purely a ministerial act and does not entitle the person on whose behalf it is issued to obtain access to the records described therein until a judicial determination has been made that the person is legally entitled to receive them." (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1249 (2003-2004 Reg. Sess.) as amended Mar. 28, 2003, p. 2 (Assem. Analysis of Assem. Bill 1249), citing People v. Blair, supra, 25 Cal.3d at p. 651.) The 2004 amendments to section 1326 did not weaken those protections. Rather, as the author of Assembly Bill No. 1249 explained, the proposed amendments were designed "`to better protect the privacy rights of third-party citizens and litigants alike when subpoenas are issued and served in criminal cases, and to re-establish and strengthen judicial control over the release of privileged and confidential records to prosecutors and criminal defendants in criminal cases.'" (Assem. Analysis of Assem. Bill 1249, supra, p. 3, italics added; see also Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1249 (2003-2004 Reg. Sess.) as amended June 9, 2004, p. 1 ["This bill makes it clear that in a criminal case, documents requested through a subpoena duces tecum shall be returned to the court and not to the requesting attorney."].) The same procedures thus apply regardless of whether the subpoena was issued by the prosecution or by the defenseexcept that the defense is afforded two additional protections: (1) when a defendant has issued a subpoena to a nonparty, the hearing at which the defense seeks to *1077 justify its entitlement to the records may be conducted in camera; and (2) the records will not be disclosed to the prosecution unless or until the defendant intends to offer them as evidence at trial. (Pen. Code, §§ 1054.3, subd. (a), 1326, subd. (c).) Contrary to Kling's assumption, there is no need to construe the discovery statutes to bar disclosure of the fact of the third party subpoena and surrounding circumstances simply to enable the scheme "to pass constitutional muster" because of an "alleged lack of reciprocity."
Kling argues next that the People are not entitled to disclosure of the identity of the subpoenaed party or the nature of the documents sought because the discovery provisions of Proposition 115 (Pen. Code, § 1054 et seq.) require disclosure only of persons the defendant "intends to call as witnesses at trial" and of documents or real evidence the defendant "intends to offer in evidence at the trial." (Pen. Code, § 1054.3, subd. (a)(1), (2).) Once again, Kling has misapprehended the applicable law. As the Legislature recognized, and as reiterated in the case law, Penal Code sections 1054 through 1054.7 "do not regulate discovery concerning uninvolved third parties." (Assem. Analysis of Assem. Bill 1249, supra, p. 3; accord, Teal v. Superior Court (2004) 117 Cal.App.4th 488, 491 [11 Cal.Rptr.3d 784]; People v. Superior Court (Barrett), supra, 80 Cal.App.4th at p. 1313; People v. Superior Court (Broderick) (1991) 231 Cal.App.3d 584, 594 [282 Cal.Rptr. 418].) On the other hand, the provisions that do apply suggest that the People would become aware of at least the subpoenaed party's identity when the court opens the sealed envelope containing copies of the records "in the presence of all parties who have appeared in person or by counsel at the trial, deposition, or hearing." (Evid. Code, § 1560, subd. (d); cf. People v. Superior Court (Humberto S.), supra, 43 Cal.4th at p. 749.)
The Court of Appeal expressed concern that disclosure of basic information concerning the third party subpoena would inhibit the defense investigation, but its concern appears overstated. (Cf. Michigan v. Lucas (1991) 500 U.S. 145, 149-151 [114 L.Ed.2d 205, 111 S.Ct. 1743] [upholding Mich. statute requiring the defense to give notice within 10 days after arraignment of its intent to offer evidence of the victim's sexual conduct].) It is true that allowing the prosecution to learn that certain records have been subpoenaed from a third party may cause the defense to face the "difficult decision whether to subpoena the records and run the risk of bringing possibly adverse information to the attention of the prosecutor or to forgo seeking information that could be beneficial to his defense. However difficult that decision may be, we do not see it as impairing the policies behind [a defendant's] right to counsel. In essence it is [the defense] position that the prosecution, by . . . knowing [the records] have been subpoenaed by the defense, will have access *1078 to his attorneys' work product because the prosecutor will be able to `glean' the attorneys' thought processes and determine defense strategy. There is no basis in the law for interpreting attorneys' work product so broadly." (Department of Corrections v. Superior Court (1988) 199 Cal.App.3d 1087, 1097 [245 Cal.Rptr. 293]; see generally People v. Cooper (1991) 53 Cal.3d 771, 816 [281 Cal.Rptr. 90, 809 P.2d 865]; accord, U.S. v. Fox (D.Neb. 2003) 275 F.Supp.2d 1006, 1012 [adopting "the majority view" that "generalized statements about premature disclosure of `strategy' or `work product' will almost never be a good reason for ex parte consideration" of a request for a subpoena duces tecum under Fed. Rules Crim.Proc., rule 17(c), 18 U.S.C.].)
We further agree with the People that disclosure of the identity of the subpoenaed party and the nature of the records sought may, in many circumstances, effectuate the People's right to due process under the California Constitution. (Cal. Const., art. I, § 29; cf. Alford v. Superior Court, supra, 29 Cal.4th at p. 1044 (lead opn. of Werdegar, J.) [discussing "general due process principles" governing the People's role when the defense seeks confidential records of a peace officer].) Discovery proceedings involving third parties can have significant consequences for a criminal prosecution, consequences that may prejudice the People's ability even to proceed to trial. For example, a third party's refusal to produce documents requested by the defense can potentially result in sanctions being applied against the People. (Department of Corrections v. Superior Court, supra, 199 Cal.App.3d at p. 1093, citing Dell M. v. Superior Court (1977) 70 Cal.App.3d 782, 788 [144 Cal.Rptr. 418].) Protracted ex parte proceedings may result in delays, thereby interfering with the People's right to a speedy trial. (Cal. Const., art. I, § 29; Pen. Code, § 1050.) The People, even if not the target of the discovery, also generally have the right to file a motion to quash "so that evidentiary privileges are not sacrificed just because the subpoena recipient lacks sufficient self-interest to object" (M. B. v. Superior Court (2002) 103 Cal.App.4th 1384, 1392 [127 Cal.Rptr.2d 454]) or is otherwise unable to do so. (See People v. Superior Court (Humberto S.), supra, 43 Cal.4th at p. 743.) Even where the People do not seek to quash the subpoena, the court may desire briefing and argument from the People about the scope of the third party discovery." (Id. at pp. 750-751.)[2] Indeed, "a canvass of the underlying proceedings in reported cases suggests trial courts regularly permit prosecutorial participation in third party discovery." (43 Cal.4th at p. 750.) It is difficult to see how the People can have a meaningful opportunity to be heard if they are categorically barred from learning the identity of the subpoenaed party or the nature of the documents requested. (See ibid.) We therefore reject the Court of Appeal's contention that "[n]o statutory or constitutional authority *1079 permits disclosure to the prosecution of the names of the third parties to whom defense subpoenas have been issued or the nature of the records produced."
(5) A trial court's role when presented with materials produced under a defense subpoena duces tecum to a third party, then, is to balance the People's right to due process and a meaningful opportunity to effectively challenge the discovery request against the defendant's constitutional rights and the need to protect defense counsel's work product. The trial court "is not `bound by defendant's naked claim of confidentiality'" but should, in light of all the facts and circumstances, make such orders as are appropriate to ensure that the maximum amount of information, consistent with protection of the defendant's constitutional rights, is made available to the party opposing the motion for discovery. (Garcia v. Superior Court, supra, 42 Cal.4th at p. 72; see also City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1130-1131 [252 Cal.Rptr. 789].) (6) The trial court may order an in camera review of the records produced under the subpoena duces tecum (Pen. Code, § 1326, subd. (c)) and, as the People concede, may conduct some or all of the hearing concerning the defendant's entitlement to those records ex parte in order to safeguard privileged information or attorney work product. (People v. Superior Court (Humberto S.), supra, 43 Cal.4th at pp. 749-750.)
The use of these extraordinary procedures, though, should be limited to that which is necessary to safeguard the rights of the defendant or of a third party, inasmuch as ex parte proceedings are generally disfavored because of their inherent deficiencies. "`The first is a shortage of factual and legal contentions. Not only are facts and law from the defendant lacking, but the moving party's own presentation is often abbreviated because no challenge from the [opposing party] is anticipated at this point in the proceeding. The deficiency is frequently crucial, as reasonably adequate factual and legal contentions from diverse perspectives can be essential to the court's initial decision . . . .'" (People v. Ayala (2000) 24 Cal.4th 243, 262 [99 Cal.Rptr.2d 532, 6 P.3d 193]; cf. People v. Superior Court (Humberto S.), supra, 43 Cal.4th at p. 743 [the defense was erroneously granted pretrial discovery of the eight-year-old complaining witness's psychotherapy records, in violation of People v. Hammon (1997) 15 Cal.4th 1117 [65 Cal.Rptr.2d 1, 938 P.2d 986], because of an ex parte subpoena procedure].) Moreover, "with only the moving party present to assist in drafting the court's order there is a danger the order may sweep `more broadly than necessary.'" (Department of Corrections v. Superior Court, supra, 199 Cal.App.3d at p. 1093.)
In this case, the trial court failed to give the People notice of the in camera hearings regarding the receipt of materials from third parties or to consider what information could be shared with the prosecution. After our decision in *1080 People v. Superior Court (Humberto S.), supra, 43 Cal.4th 737 was brought to its attention, though, the trial court sought to remedy its error by reviewing the transcripts of all previously closed hearings and ordering unsealed those specific portions that did not reveal defense theories of the requested materials' relevance or any other privileged or protected information. The trial court thus attempted to protect Kling's constitutional rights and counsel's work product while, to the extent possible, still providing for open proceedings. (Department of Corrections v. Superior Court, supra, 199 Cal.App.3d at p. 1094.) Whether the trial court properly exercised its discretion in balancing those competing interests and in issuing its order is beyond the scope of our grant of review, and has not yet been considered by the Court of Appeal, which ruled categorically that the People had no entitlement to any portion of the sealed transcripts, regardless of what they contained. On remand, the Court of Appeal may consider whether the trial court, under the legal standards set forth herein, properly unsealed the specified portions of the transcripts.
(7) Finally, we note that our interpretation of the criminal discovery statutes with respect to third party subpoenas duces tecum appears to be consistent with Proposition 9, the Victims' Bill of Rights Act of 2008: Marsy's Law, whichsubsequent to the proceedings in the trial court hereamended the California Constitution to guarantee crime victims a number of rights, including the right "[t]o prevent the disclosure of confidential information or records to the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim's family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law." (Cal. Const., art. I, § 28, subd. (b)(4).) Marsy's Law provides that this right, along with the others enumerated in subdivision (b), may be enforced by "[a] victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim." (Id., art. I, § 28, subd. (c)(1).)
(8) Marsy's Law evidently contemplates that the victim and the prosecuting attorney would be aware that the defense had subpoenaed confidential records regarding the victim from third parties. As the People have observed, "[n]either the prosecution nor the victim can attempt to address the disclosure of records if they do not know what records are being sought." Kling is correct that this proceeding does not present an opportunity for "expansive proclamations regarding implementation of Marsy's Law," but we do agree with the People that a victim's right to notice of a third party subpoena would be consistent with the presumption that court proceedings are open and with the prosecution's right to due process.
*1081 DISPOSITION
The judgment of the Court of Appeal is reversed and the cause is remanded for proceedings consistent with our opinion.
George, C.J., Kennard, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
NOTES
[1] The Ventura County Superior Court has since denied Kling's motion for new trial and imposed a judgment of death.
[2] As in People v. Superior Court (Humberto S.), supra, 43 Cal.4th at page 750, footnote 9, we need not decide here whether the trial court is required to allow argument from the People concerning third party discovery issues. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331304/ | 188 S.E.2d 647 (1972)
14 N.C. App. 531
Alton Lee JARMAN
v.
Betty Dawson JARMAN (now Betty Dawson Jarman Keltz).
No. 723DC365.
Court of Appeals of North Carolina.
May 24, 1972.
Certiorari Denied July 31, 1972.
*649 Cecil D. May, New Bern, for plaintiff appellee.
Robert G. Bowers, New Bern, for defendant appellant.
Certiorari Denied by Supreme Court July 31, 1972.
HEDRICK, Judge.
Since the only exception brought forward on this appeal is to the order awarding custody of the child to the plaintiff, our consideration is limited to the question of whether the findings made by the trial judge support the order and whether error of law appears on the face of the record. Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879 (1957); Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882 (1961); Prince v. Prince, 7 N.C.App. 638, 173 S.E.2d 567 (1970).
In determining whether the findings support the order we refer first to the applicable statute, G.S. § 50-13.2(a) which provides:
"An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child."
"This statutory directive merely codified the rule which had been many times announced by the North Carolina Supreme Court to the effect that in custody cases the welfare of the child is the polar star by which the court's decision must ever be guided." In re Custody of Pitts, 2 N.C.App. 211, 162 S.E.2d 524 (1968). In applying these legal principles to the facts of a particular case, the trial judge is vested with a wide discretion for he has an opportunity to observe the parties and the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. In re Custody of Mason, 13 N.C.App. 334, 185 S.E.2d 433 (1971); In re Custody of Pitts, supra.
It is clear from the findings of fact made by Judge Phillips why he concluded that the best interest and welfare of the child required that the child remain in the custody of her father. The findings reflect the fact that the consent order with the same arrangements with the paternal grandmother had been completely satisfactory and had served the best interest and welfare of the child for more than two years. Although his honor's findings do indicate that the circumstances of the mother have changed since she consented to the order awarding custody of the child to the father, and that she has established a home in Norfolk, Virginia, with facilities satisfactory for a child of Dawn's age, this fact alone did not require a change of the *650 custody, or preclude the judge from awarding the custody of the child to the plaintiff. There is nothing in the record to indicate that the trial judge abused his discretion.
The case of Boone v. Boone, 8 N.C.App. 524, 174 S.E.2d 833 (1970) relied upon by the defendant has no application in the facts of this case. In Boone this Court simply held that the evidence did not support a finding "that the best interest, health and welfare of Daniel Richard Boone, age seven months, and Billy Ray Boone, age two years, would best be served if they were allowed to remain in the custody of the father and to remain at the home of Mr. and Mrs. Wilburn Frye."
In the present case since no exceptions were taken to the admission of evidence or to the findings of fact, the facts found are presumed to be supported by competent evidence and are binding on appeal. Stancil v. Stancil, supra. We hold no error appears on the face of the record and the facts found by the trial judge support his conclusions which in turn support the order awarding custody of Angela Dawn Jarman to the plaintiff with visitation privileges to the defendant.
Affirmed.
BRITT and PARKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331182/ | 125 Ga. App. 747 (1972)
188 S.E.2d 879
HOLTZENDORF
v.
THE STATE.
46955.
Court of Appeals of Georgia.
Submitted March 8, 1972.
Decided March 17, 1972.
J. S. Hutto & Associates, Eugene Highsmith, for appellant.
DEEN, Judge.
Two police officers beginning their evening rounds in the City of Brunswick were informed by another officer off duty that there were two persons in a local restaurant talking loud who might be going to cause a disturbance, and that one of them might be intoxicated. They drove past the restaurant at about 1:30 a. m. and noted that all was quiet. They then cruised in the vicinity and some five blocks away came upon two young men walking on the sidewalk. The officers alighted from the patrol car, demanded identification, and satisfied themselves that the *748 youths were not intoxicated. One of them then demanded of the defendant what he was carrying in a paper bag and the defendant replied that it was a bottle of apple wine. Further questioned he stated that it was his wine and he was 19 years old. Both boys were then placed under arrest for violation of a city ordinance forbidding possession of alcoholic beverages by minors. The defendant was ordered to stand with his back to the officer and hands against the roof of the police car and was subjected to a minute search, in the course of which his pants came unbottoned and he was forced to remove his shoes. A packet of cigarettes was removed from his shirt pocket, and under it a "very small bag rolled up" of plastic containing the contraband for possession of which he was placed on trial.
The State contends that the defendant voluntarily surrendered the bottle of wine which, with the statements that he was a minor and that the wine belonged to him, left no doubt that he was violating the law; that the arrest was therefore legal because the crime was committed in the presence of the officers, that the search was legal as incident to a valid arrest, and that the discovery of the gram or so of marijuana was admissible in evidence.
Code Ann. § 27-301 provides: "When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of (a) protecting the officer from attack; or (b) preventing the person from escaping; or (c) discovering or seizing the fruits of the crime for which the person has been arrested; or (d) ... seizing ... things ... which may have been used, in the commission of the crime for which the person has been arrested," and, if the search is authorized, he may also seize any object the possession of which is unlawful. The defendants were not attempting to escape, and the "fruit" of the crime for which Holtzendorf was arrested was quite obviously in the paper bag already in the officer's possession. A search for weapons would not comprehend the small, soft plastic bag lying beneath the pack of cigarettes in a breast pocket, as will be *749 developed later, and we prefer to leave open the question of the reasonableness under all circumstances of a general, minute, exploratory search on general principles where the arrest is legal. While it has been held by Fourth Amendment standards that the search of premises under these circumstances is limited by its propinquity to the defendant, and may thus be unreasonable where geographically removed (Agnello v. United States, 269 U. S. 20 (46 SC 4, 70 LE 145, 51 ALR 409)), and while "a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope" (Terry v. Ohio, 392 U. S. 1, 18 (88 SC 1868, 20 LE2d 889)), citing Kremen v. United States, 353 U. S. 346 (77 SC 828, 1 LE2d 876) and Go-Bart Importing Co. v. United States, 282 U. S. 344, 356 (51 SC 153, 75 LE 374)), it has also been stated in United States v. Rabinowitz, 339 U. S. 56, 60 (70 SC 430, 94 LE 653): "Yet no one questions the right, without a search warrant, to search the person after a valid arrest. The right to search the person incident to arrest always has been recognized in this country and in England. Weeks v. United States, 232 U. S. 383, 392 (34 SC 341, 58 LE 652, LRA 1915B 834, AC 1915C 1177). Where one had been placed in the custody of the law by valid action of officers, it was not unreasonable to search him." Yet, to be admissible, the evidence must have been obtained by means of a search and seizure reasonably related in scope to the justification for their initiation. Warden v. Hayden, 387 U. S. 294, 310 (87 SC 1642, 18 LE2d 782).
Is the search here, then, justified by the arrest, or did the arrest itself overreach the Constitutional safeguards afforded by our Bill of Rights? At this point we have only the testimony of the two arresting officers, yet it alone raises grave questions as to the reasonableness of the procedure used. While their testimony was that they were directed to a restaurant, they did not enter it and made no inquiry as to whether a disturbance had in fact occurred. They stopped the defendant and his companion while the latter were engaged in the perfectly lawful activity of walking on the *750 sidewalk and indulging in no furtive or suspicious conduct of any kind. The reason given for leaving their automobile and confronting the youths was that they matched the description given by their fellow policeman in that one had long hair and one had short hair. The attitude is obvious from the following portion of the cross examination: "Q. Now, you said `people of this kind' and what you really meant was people with long hair? A. Well, if you want to call it that, or hippy type, whatever you want to call it, that's long hair, isn't it?... Q. But also, the fact that the boy had long hair had something to do with it, too, didn't it? A. Possibly. Anytime you see a long hair, you get a, it goes along with the rest of them. Q. I mean, you and I are human beings that are normal, and long hair is not, it's indicative of something, a movement other than what you and I may agree with? A. That's the way I see it... You can see how I believe." The attitude is also obvious from the severity of the search, which was sufficient to loosen the defendant's pants, and from the statement of one of the officers that he told Holtzendorf, who protested when his pants came loose, to shut up or he'd fill him full of lead.
Again, as stated in Terry v. Ohio, 392 U. S. 1, 16, supra: "It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a `search.' Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a `petty indignity.' It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. The danger in the logic which proceeds upon distinctions between a `stop' and an `arrest,' or `seizure' of the person, and between a `frisk' and a `search' is two-fold. It seeks to isolate from constitutional scrutiny the initial *751 stages of the contact between the policeman and the citizen. And... it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation." It must be said that when the police officers alighted from their car, stopped the defendant and his companion, questioned them, and demanded to see the contents of the paper bag, the youths were at that time "seized" or "arrested" within the meaning of the Constitutional standards set by Terry v. Ohio, supra, and Sibron v. New York, 392 U. S. 40 (88 SC 1889, 20 LE2d 917). Since no circumstances whatever existed (as in Terry) to alert them to further investigation of suspected unlawful behavior or of self-defense, and since they were satisfied that the youths were not intoxicated and were committing no other crime in their presence of which their senses could make them cognizant, it is sheer sophistry to say that Holtzendorf volunteered the facts that he was a minor and that he had wine in the paper bag. Would he have made such a statement to any other stranger who accosted him on the street? Surely not, yet this case depends on whether one may be lawfully convicted of possessing a gram of marijuana obtained by a search without warrant which he verbally protested, justified by an arrest without warrant, justified by a crime discovered only by the "voluntary" statement of a 19-year-old defendant after being stopped, seized or detained without any probable cause whatever. "A prisoner in police custody by reason of an illegal arrest [or any other form of detention, overt or subtle] is in no position to refuse to comply with the demands of the officer in whose custody he is placed whether such demand is couched in the language of a polite request or a direct order. If a command, the prisoner is directly forced to comply, and if a request, he is indirectly forced to comply." Raif v. State, 109 Ga. App. 354, 358 (136 SE2d 169). And see Gomez v. Wilson, 323 FSupp. 87, 91.
Although adjudication here must rest on the law as it was at the time of the seizure and not as of the present, it is interesting to note that mere possession of a bottle of *752 wine by a 19-year-old minor has never been an offense against State law. It was prohibited by an ordinance of the City of Brunswick. The seizure occurred on August 18, 1971, when the age of majority was 21. As of July 1, 1972 (Ga. L. 1972, p. 193) the age of majority has been reduced to 18, following a recommendation contained in the Report of the Governor's Commission on Judicial Processes, Dec. 31, 1971, p. 21, which stated in part: "The arrest and criminal conviction of minors between 18 and 21 (many of them returned veterans) for various acts designed to circumvent the legal drinking age, not only [is] unjustified from any logical or moral standpoint but destructive of respect for the law. Young adults believe that a system which trusts them with a machine gun and a ballot, but not a bottle of beer, is irrational at best... It seems completely inconsistent that this state has long bestowed on persons 18 years of age the right to vote a right of citizenship theoretically requiring the highest exercise of sound discretion and denies to them all other rights of citizenship not specifically bestowed."
The officers had no warrant to arrest or search; no crime was being committed in their presence of which any knowledge was presented to their senses, and the record as a whole indicates that the recovery of the bottle of wine, although no doubt honestly considered by the officers to be a "voluntary" surrender, was strongly tainted by circumstances amounting to duress.
What then of the marijuana uncovered by the subsequent search? This case is practically identical with People v. Collins, 83 Cal. Rptr. 179 (463 P2d 403), except that the reason for the "stop and frisk" in that case was much better documented by the fact that the officers stopped a man meeting a general description of a grand theft auto suspect, and testified that the reason for stopping him included his furtive actions upon their observation of him. The suspect was meticulously searched, and a plastic bag loosely packed with marijuana removed from his pocket after a "little lump" had been felt. He was then charged with drug possession. *753 Contrasting these facts with those in Sibron v. New York, 392 U. S. 40, supra, where the suspects' conduct suggested present criminal activity and the search was confined to a pat-down of the outer clothing until a weapon was actually felt, the court held that merely feeling a soft object in Collins' pocket during a pat-down, absent unusual circumstances, did not warrant the officer's intrusion into his pocket to retrieve it. "An officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulate facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down. Only then can judges satisfy the Fourth Amendment's requirement of a neutral evaluation of the reasonableness of a particular search by comparing the facts with the officer's view of those facts." People v. Collins, 83 Cal. Rptr. 179, 182, supra, citing Terry v. Ohio, supra.
The trial court erred in denying the defendant's motion to suppress evidence of the discovery of marijuana under all circumstances of this case.
Judgment reversed. Clark, J., concurs. Jordan, P. J., concurs in the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331206/ | 375 S.C. 56 (2007)
650 S.E.2d 462
Re INTERIM GUIDANCE REGARDING PERSONAL DATA IDENTIFIERS AND OTHER SENSITIVE INFORMATION IN APPELLATE COURT FILINGS.
Supreme Court of South Carolina.
August 13, 2007.
ORDER
Under the Federal Constitution, our State Constitution, and our common law, court records are presumptively open to the public, and these records may only be sealed by a court based on specific findings that the need for secrecy outweighs the presumption of openness. Ex parte Capital U-Drive-It, Inc., 369 S.C. 1, 630 S.E.2d 464 (2006); Davis v. Jennings, 304 S.C. 502, 405 S.E.2d 601 (1991). Therefore, with some few exceptions,[1] documents filed with this Court or the South Carolina Court of Appeals (appellate court) are available to the public unless sealed by order of the appellate court in which the matter is pending.
Several commercial vendors have recently requested copies of briefs filed with the appellate courts, and it is anticipated that these and other appellate filings will be available electronically from both private and public sources in the future. The ready availability of these documents raises significant privacy concerns. While this problem is currently under review by the Chief Justice's Task Force on Public Access to Court Records, we adopt the following interim guidance regarding personal data identifiers and other sensitive information in documents filed in the appellate courts.
Parties shall not include, or will partially redact where inclusion is necessary, the following personal data identifiers from documents filed with an appellate court:[2]
*57 1. Social Security Numbers. If a social security number must be included, only the last four digits of that number should be used.
2. Names of Minor Children. If a minor is the victim of a sexual assault or is involved in an abuse or neglect case, the minor's name will be completely redacted and a term such as "victim" or "child" should be used. In all other cases, only the minor's first name and first initial of the last name (i.e., John S.) should be used.
3. Financial Account Numbers. If financial account numbers are relevant, only the last four digits of these numbers should be used.
4. Home Addresses. If a home address must be included, only the city and state should be used.
Parties wishing to file documents containing the personal data identifiers listed above may file unredacted documents under seal, together with redacted versions for the public file. The sealed unredacted documents shall be filed in a separate Appendix and the bottom of each page of the Appendix shall be marked "Sealed." No order of the appellate court will be required to file this sealed Appendix. The number of copies of the Appendix to be served and filed shall be the same as that required for the brief, record on appeal, motion or other filing that includes the redacted documents.
If the caption of the case contains any of the personal data identifiers listed above, the parties should file a motion to amend the caption to redact the identifier. This should be done contemporaneously with the filing of the notice of appeal or the commencement of the case with the appellate court. Without a motion to the appellate court, the caption of a juvenile delinquency matter from the family court shall be redacted to only use the juvenile's first name and first letter of the juvenile's last name (i.e., In the Interest of John S., a Juvenile.)
A party seeking to seal material beyond those personal identifiers listed above, must file a motion to seal with the appellate court in which the matter is pending. This is true even if the lower court or administrative tribunal may have *58 issued an order sealing the record. Until the motion is ruled on, the clerk of the appellate court shall treat the material as if it is sealed. Parties and counsel are reminded that the standard established in Ex parte Capital U-Drive-It, Inc. and Davis v. Jennings, supra, must be met before any request to seal all or a portion of a record will be granted. Once sealed by order of an appellate court, the materials will remain sealed before the appellate courts unless otherwise ordered by the appellate court in which the matter is pending.
Parties should exercise caution in including other sensitive personal data in their filings, such as personal identifying numbers, medical records, employment history, individual financial information, proprietary or trade secret information, information regarding an individual's cooperation with the government, information regarding the victim of any criminal activity, or national security information.
Attorneys are expected to discuss this matter with their clients so that an informed decision can be made about the inclusion of sensitive information. The appellate courts and their staff will not review filings for redaction or to determine if materials should be sealed; the responsibility for insuring that information is redacted or sealed rests with counsel and the parties.
IT IS SO ORDERED.
JEAN H. TOAL, C.J., JAMES E. MOORE, JOHN H. WALLER, JR., J.E.C. BURNETT, III, and COSTA M. PLEICONES, JJ.
NOTES
[1] See, e.g., Rule 12 of the Rules for Lawyer Disciplinary Enforcement contained in Rule 413, SCACR; Rule 12 of the Rules for Judicial Disciplinary Enforcement contained in Rule 502, SCACR; Rule 402(n), SCACR; and Rule 403(1), SCACR.
[2] This restriction shall not apply when this information is required or requested by the appellate court. For example, the application for admission to practice law under Rule 402, SCACR, requires many of these personal identifiers to be disclosed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331205/ | 228 Ga. 867 (1972)
188 S.E.2d 861
EVANS
v.
THE STATE.
27086.
Supreme Court of Georgia.
Argued March 13, 1972.
Decided April 6, 1972.
Morton G. Forbes, for appellant.
Andrew J. Ryan, Jr., District Attorney, Andrew J. Ryan, III, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, David L. G. King, Jr., Assistant Attorneys General, for appellee.
UNDERCOFLER, Justice.
Isaiah Evans was convicted in the Superior Court of Chatham County for the offense of armed robbery and was sentenced to serve twenty years in the penitentiary. He appeals to this court. Held:
*868 1. The appellant contends that he was not advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436 (86 SC 1602, 16 LE2d 694, 10 ALR3d 974). The evidence does not show that the appellant made any statement to the investigating officers or that they ever interrogated him about the charges brought against him. The contention is without merit.
2. The appellant contends that the court erred in allowing Robert E. Falligant, Jr., who he contends had previously been appointed to represent him, to participate in the preparation of the State's case; that Falligant had appeared on his behalf at the preliminary hearing; that thereafter Falligant was appointed to the District Attorney's staff; and that Falligant indirectly participated in his prosecution and disclosed privileged and confidential information obtained from him.
The record shows that Falligant's name appeared as attorney for the appellant on the criminal warrant.
Before this trial began, the attorney for the appellant stated to the court that Falligant was the original attorney appointed by the court to represent the appellant. Andrew J. Ryan, III, Assistant District Attorney, who represented the State in this prosecution, then stated to the court that he wanted to "clear up some of the things ... Number one, Mr. Falligant was not appointed to represent this man. Mr. Falligant represented our office the District Attorney's office at the preliminary hearing on June 4, 1970 ..."
The attorney for the appellant insists that Falligant was present in the courtroom when Ryan made this statement and that he has reason to believe that Falligant and Ryan participated jointly in the preparation of the State's case.
There is nothing in this record which shows that Falligant even discussed this case with the appellant or even knew that his name appeared on the criminal warrant as the appointed attorney. The record shows that the prosecution was conducted by Ryan and there is nothing in the *869 record to show that Falligant participated in the prosecution in any way. It follows that this enumeration of error is without merit.
3. The jury was authorized to find from the evidence that Isaiah Evans, Cephas Scott and another man drove into the Spur Service Station in Chatham County in a 1960 black Cadillac on May 23, 1970; that Evans went into the station and bought a pack of cigarettes; that about 11:34 p. m. that same day, the vehicle returned and Evans and Scott went into the station and into the rest room. When they came from the rest room, Scott had a pistol in his hands; they forced the attendant, Warren Austin, to go into the rest room; and that they frisked him and took from him about $10 in change, $15 in bills, and his wallet containing $3. Scott said that there must be more money than that, gave Evans the gun, and went into the other room and rifled the drawers in the office of the station; and that when Scott returned to the rest room, Evans asked him if he should shoot Austin and was told "no." They told Austin to stay in the rest room 15 minutes. A room at the back of the station contained a cot where another attendant, Pat Waddell, was lying down but was not asleep. When the door to this room was opened by the robbers, Waddell saw them pointing a gun at him, he grabbed the gun, a scuffle ensued, he was struck on the side of the head with a pack of cold drinks, he fell back on to the cot; and then Evans shot him in the chest. Waddell had seen Evans in the station several times before but had never sold him a gun. After the robbers left the station, Austin came from the rest room to see about Waddell. Both attendants identified the gun introduced in evidence as being similar to the one used in the robbery. Austin identified the Cadillac as being similar to the one used in the robbery.
The police were called about 11:45 p. m. immediately after the robbery. Descriptions of the robbers and the Cadillac were given to them as well as the amount and kind of money taken in the robbery. The police began patrolling *870 the area and about an hour later saw a Cadillac fitting the description of the vehicle used in the robbery; the vehicle was stopped; and the two occupants fitted the descriptions which had been given the police officers. Isaiah Evans and Cephas Scott were in the car; Evans had a plate of barbecue in his hands and was sitting on the passenger side; they were ordered out of the car by the officers; a .38 caliber snub-nose revolver was in plain view on the floorboard where Evans had been sitting and it had been recently fired. Evans was wearing the clothing formerly described by the victims and a pair of brown suede shoes with an orange strip on them. When Evans walked to the patrol wagon, the officers heard a jingling sound in his shoes and the shoes were removed; the officers found 3 one dollar bills in the left shoe, the right shoe contained six dollars and eighty-four cents in silver, and eight one dollar bills were found in Evans' pocket.
In his unsworn statement the appellant told the jury that he knew Pat Waddell and had recently bought a gun from him for his protection; that he was to pay Waddell $35 for the gun but only had $25 at the time of the purchase and owed Waddell $10 more for the gun; that he went to the station that night to pay Waddell the $10 but Waddell told him that he had not made any payment on the gun; that a scuffle followed during which Waddell was shot; and that he did not rob the station and only went there to settle the payment for the gun.
The trial court properly overruled the motion for new trial on the general grounds.
4. The appellant contends that it was error for the court to admit in evidence over his objection the .38 caliber pistol obtained from the Cadillac at the time of his arrest because there was no evidence that this pistol was the one used in the robbery or that it was the one which injured Waddell. There is no merit in this contention.
In Lively v. State, 178 Ga. 693, 695 (173 S.E. 836) this court said: "It appears without dispute that the crime was *871 committed with a razor, and it would make no material difference whether or not the weapon it was sought to identify was the particular razor with which the homicide was committed. The identification was sufficient to authorize the jury to decide, under the evidence relative to identification, whether or not it was the identical weapon used by the defendant." Katzensky v. State, 228 Ga. 6 (3) (183 SE2d 749).
5. The trial court charged the jury: "A person convicted of armed robbery shall be punished by death or imprisonment for life, or by imprisonment for not less than one nor more than 20 years."
The appellant contends that this charge violates his rights under the Eighth and Fourteenth Amendments of the United States Constitution (Code §§ 1-808, 1-815), because no legal standard is set forth for determining the degree of punishment thereby leaving the jury to capriciously and without substantial reason impose the strictest and most severe penalty allowed by law and because it imposes cruel and unusual punishment. He contends that the fact he received a twenty-year sentence does not bar him from challenging the charge. The charge was based on Code Ann. § 26-1902 (Ga. L. 1968, pp. 1249, 1298; 1969, p. 810).
(a) "In Sims v. Balkcom, 220 Ga. 7, 12 (136 SE2d 766), this court held that the statute fixing the punishment for rape was constitutional as against the attack that it furnished no standards to govern the jury in making its determination of the sentence. In the Sims case we held: `Lawyers experienced in court procedures know that often where guilt is proved mitigating circumstances call for lessening the punishment, and the jury who hears the evidence can better than anyone else properly weigh such matters.' The constitutionality of a similar statute fixing the punishment for murder was challenged on the same basis in Chatterton v. Dutton, 223 Ga. 243 (154 SE2d 213), cert. den. 389 U.S. 914 (88 SC 247, 19 LE2d 266)." Williams v. State, 226 Ga. 140 (2) (173 SE2d 182).
*872 The Supreme Court of the United States in McGautha v. California, 402 U.S. 183, 207 (91 SC 1454, 28 LE2d 711) has held: "In the light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution."
It follows that the charge of the court based on Code Ann. § 26-1902 is not subject to this attack.
(b) Pretermitting the question of whether appellant has standing to contend that the charge violates his rights under the Eighth Amendment of the United States Constitution (Code § 1-808), this court has held: "So long as they [the legislature] do not provide cruel and unusual punishments, such as disgraced the civilization of former ages, and make one shudder with horror to read of them as drawing, quartering, burning, etc., the Constitution does not put any limit upon legislative discretion." Whitten v. State, 47 Ga. 297, 301; Sims v. Balkcom, 220 Ga. 7, 10 (136 SE2d 766); Williams v. State, 226 Ga. 140 (3), supra.
There is no merit in these contentions.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331196/ | 258 S.C. 258 (1972)
188 S.E.2d 379
The STATE, Respondent,
v.
Niles CROWE and Horace Wright, Jr., Appellants.
19404
Supreme Court of South Carolina.
April 21, 1972.
*259 *260 *261 Marshall W. Abercrombie, Esq., of Laurens, for Appellant, Crowe.
William T. Jones, Esq., Sol., of Greenwood, for Respondent.
Richard T. Townsend, Esq., of Laurens, for Appellant, Wright.
*262 William T. Jones, Esq., Sol., of Greenwood, for Respondent.
April 21, 1972.
LEWIS, Justice:
At a term of the General Sessions Court of Laurens County in August 1970, the appellants, Niles Crowe and Horace Wright, Jr., were convicted of the murder of James E. Spearman, a resident of Laurens County. Crowe received a death sentence; and Wright, upon a recommendation of mercy by the jury, was sentenced to life imprisonment. Both have appealed. The theory of the State's case against Crowe was that he fired the fatal shot and, as to Wright, that he was present, aiding and abetting in the commission of the crime.
*263 While there was direct evidence of Crowe's participation in the crime, the testimony against Wright was largely circumstantial. It is undisputed that appellant Crowe fired the fatal shot, but he testified that he shot in self defense. The jury rejected his contention and found that he was guilty of murder. The record amply supports this finding and Crowe does not here contend otherwise. Appellant Wright, however, contends that the evidence was insufficient to sustain his conviction, and this presents the first question to be decided.
In determining whether the evidence was sufficient to support Wright's conviction, the testimony and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the State. Our review of the testimony is governed by this principle.
Appellants were cousins and good friends. After remaining together throughout most of the afternoon of November 22, 1969, they went to the Goodfellows Club, near Laurens, South Carolina, in Crowe's automobile, arriving there about 10 o'clock p. m. The club was an establishment where poker games were operated and this fact was known to appellants.
When appellants entered the club, there was a poker game in progress, operated by Vernon Caldwell, with seven participants, and considerable sums of money in the game and in the possession of the players. At no time during the evening did either of the appellants participate in the game, but they were in and about the poker room.
Appellants carried pistols with them to the club and, about 11:30 p. m., both showed their weapons to a third party. Crowe had on his person a loaded .38 calibre pistol and Wright a .25 calibre automatic. At that time, Crowe asked Wright if his pistol had a bullet in the chamber, to which Wright replied: "I've got one. I always stay ready."
Shortly after 12 o'clock, about thirty to forty minutes after appellants had exhibited their weapons, Crowe, while *264 standing in an entrance doorway, began shooting into the poker room with his .38 calibre pistol. He fired five or six shots into the room, killing the deceased. Two .38 calibre bullets were later removed from the body of the deceased and identified by an expert as having been fired from Crowe's pistol.
During the shooting, witnesses heard the sound from the firing of a smaller calibre weapon. Officers later found two.25 calibre empty cartridges on the floor and these were identified by an expert as having been fired from the .25 calibre automatic gun, previously seen in Wright's possession.
Both weapons were found in the possession of Crowe at the time of his arrest, and he testified that they were owned by him. He further testified that both guns were in his possession at the time of the shooting, but did not remember whether he fired the .25 automatic. Crowe, on leaving, stopped at the front door of the building and reloaded the .38 calibre weapon.
While Crowe was shooting into the poker room, he turned to someone, unidentified, and said, "You start getting their pocketbooks." When the shooting began, the participants in the poker game hurriedly ran out of the building for safety and left considerable money. The deceased had placed money in his pocket shortly before the shooting began. Although the deceased had money in his pocket and considerable money was left by the fleeing players, no money was subsequently found in the poker room, except some small change, and the deceased was found lying on the floor, with his empty pockets turned wrong side out.
Immediately after the shooting, Crowe sent Wright ahead to start the automobile while he held back, as he said, to keep anyone from shooting him. Both hurriedly left the scene in Crowe's automobile with Wright driving.
At the time of the incident, no one saw Wright or saw him shooting a pistol. The testimony, however, placed him in close proximity to the poker room a few minutes before *265 the shooting started and he and Crowe hurriedly left the building together after the shooting stopped.
"Under the modern law, he who is present at a homicide, aiding and abetting, is guilty of the homicide as a principal, even though another does the killing." 40 Am. Jur. (2d), Homicide, Section 28, p. 319. State v. Francis, 152 S.C. 17, 149 S.E. 348, 70 A.L.R. 1133.
It is further well settled that, if two or more combine together to commit an unlawful act, such as robbery, and, in the execution of the criminal act, a homicide is committed by one of the actors, as a probable or natural consequence of the acts done in pursuance of the common design, all present participating in the unlawful undertaking are as guilty as the one who committed the fatal act. This principle was stated in State v. Cannon, 49 S.C. 550, 27 S.E. 526: "The common purpose may not have been to kill and murder, but if it was unlawful, as, for instance, to break in and steal, and in the execution of this common purpose a homicide is committed by one, as a probable or natural consequence of the acts done in pursuance of the common design, then all present participating in the unlawful common design are as guilty as the slayer."
It is reasonably inferable from the testimony that Crowe and Wright, relatives and friends, went to the poker club, with robbery as a motive, each armed with a weapon, Crowe with a .38 calibre pistol and Wright with a .25 automatic; that while Crowe was firing into the poker room, Wright fired his pistol, following which the robbery of the money from the poker room and the pockets of the deceased occurred; and that, in order to make their getaway, Wright went ahead to start the automobile, while Crowe stayed behind to cover their escape.
The facts and circumstances in evidence amply supported the charge that Wright was present, aiding and abetting in the commission of the crime. As such, he was guilty as a principal.
*266 It is next contended that the trial judge erred in refusing the motion of appellants for a change of venue. The motion was based upon the ground that a fair trial could not be had in Laurens County because of the prior newspaper publicity and the fact that the deceased was well known and popular, causing an unusual amount of discussion of the case in the community.
A Motion for a change of venue is addressed to the sound discretion of the trial judge. We find no abuse of discretion in the refusal of the motion in this case.
The trial judge conducted a careful voir dire examination of the jurors to determine the existence of any bias, prejudice, or adverse influence from newspaper publicity and prior discussions of the case in the community. The jurors selected to try the case stated under oath that they were not biased or prejudiced and could give the defendant a fair and impartial trial. It was apparent from the examination of the jurors that the claimed prejudice from newspaper publicity and discussions of the case in the community was not established.
Appellants also charged that the trial judge erred in refusing their motion for separate trials. While the record indicates that such motion was made only by appellant Wright, the Statement agrees that the motion was made by both appellants. Irrespective however, since Crowe received a death sentence, we have considered the motion as if made by both.
Since appellants were jointly charged with the murder of the deceased, they were not entitled to be tried separately as a matter of right. Their motion for separate trials was addressed to the discretion of the trial judge, and only an abuse of that discretion constitutes reversible error. State v. Harvey, 253 S.C. 328, 170 S.E. (2d) 657.
*267 We find no abuse of discretion in the refusal of the motion for a severance and separate trials. The record discloses that Crowe fired the fatal shot and that Wright was present aiding and abetting. Crowe entered plea of self defense and testified. His testimony was generally favorable to Wright. Wright did not testify or offer any testimony, but relied upon his claim that the State had failed to prove his guilt. These defenses were not antagonistic and could be asserted in a joint trial without material prejudice to either defendant. The record discloses no legal prejudice.
It appears that Crowe called the codefendant Wright as a witness. Wright refused to become a witness, asserting his right as a defendant not to testify. The fact that the refusal to sever resulted in the failure of Crowe to have his codefendant testify in his behalf did not constitute reversible error. The record fails to show that Wright would testify if a separate trial were granted or that his testimony would exculpate the codefendant Crowe.
A defendant is not entitled, as a matter of right, to a separate trial, in order to make a codefendant available to testify. State v. Wise, 7 Rich. 412; State v. McGrew, 13 Rich. 316. And in order to justify a reversal on the foregoing ground, some prejudice arising out of the joint trial must be shown. No such prejudice is shown by the record.
Appellant Wright also contends that they should have been tried separately upon the ground that proof of the guilt of his codefendant would establish such a heinous crime as to inflame the passions of the jurors and make it impossible for him to receive a fair and just consideration by the jury of the facts applicable to him. There is no merit in this contention. Regardless of the jury's assessment of the evidence against the codefendant, the guilt of Wright depended upon a determination by the jury of whether he was present aiding and abetting in the commission of the crime. The jury was clearly and plainly so instructed *268 and a determination of that issue did not require a separate trial.
Finally, appellant Wright argues that he was prejudiced by a joint trial because he was thereby deprived of the right to open and close an argument to the jury. The codefendant Crowe introduced testimony. Wright did not. Wright was denied the right to open and close in argument and he contends that he was prejudiced thereby.
In a criminal prosecution, where a defendant is separately tried and introduces no testimony, he is entitled to the closing argument to the jury. However, where defendants are jointly indicted and any one of them introduces evidence, the State is entitled to the closing argument. State v. Huckie, 22 S.C. 298. The latter rule was properly applied by the trial judge in denying the request of the appellant Wright to be allowed the closing argument to the jury.
While not made a ground of his motion for a separate trial, appellant Wright now argues that the resulting denial of the closing argument to him should be considered in determining whether the trial judge erred in requiring a joint trial.
The fact that, upon a trial of defendants jointly indicted, the introduction of evidence by one defendant may operate to deprive a codefendant, who offers no evidence, of the right to the closing argument, to which such codefendant would be entitled if tried separately, affords no ground upon which to order separate trials. The election by a defendant to offer testimony or not is so intertwined with trial strategy, the development of the State's case, and the basic rights of the defendant until the order of argument to the jury can only be finally determined in the light of the facts developed at the trial. The right of defendants to argue to the jury can be adequately protected in a joint trial. No prejudice to appellant's rights in this regard has been shown.
*269 Appellants also charge that the trial judge erred in admitting in evidence, over their objections, the .38 and .25 calibre weapons, used at the time of the shooting, and certain ammunition taken from the appellant Crowe at the time of his arrest. They argue (1) that the foregoing evidence was obtained as a result of an unlawful search and seizure; (2) that there was no evidence to show that the ammunition seized was at the scene of the crime; and (3) that there was no evidence to connect the appellant Wright with the .25 calibre automatic pistol, allegedly fired by him.
After the shooting, appellants left the scene and Crowe was arrested within a few hours thereafter at his home in Spartanburg, South Carolina, under an arrest warrant charging him with murder. Crowe was in bed when the officers entered his bedroom to arrest him. They had no search warrant. When they entered, they saw a .25 calibre automatic pistol and several cartridges lying on a chair by his bed and a .38 calibre pistol was in view on the floor immediately under the bed where he was lying. Other ammunition was seen on a nearby dresser. Both weapons were within easy reach of Crowe at the time.
The foregoing weapons and ammunition were seized by the officers and admitted in evidence at the subsequent trial. Both weapons were identified as those fired at the scene of the crime and the .25 calibre automatic pistol was identified by appellant Crowe as the weapon brought into the building by appellant Wright. Additional ammunition was in the possession of appellant Crowe at the scene.
The evidence sustains the finding of the trial judge that the weapons and ammunition were lawfully seized and therefore admissible in evidence. The weapons and ammunition were in plain view of the officers at the time of arrest and in easy reach of the defendant. The officers were justified in seizing the evidence for their own protection. Since the facts and circumstances so justified the seizure of the weapons and ammunition, they were properly *270 admitted in evidence at the trial. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L.Ed. (2d) 685.
In Chimel the governing principles were thus stated:
"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area `within his immediate control' construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."
Appellant Wright next charges that the trial judge erred in permitting the State to introduce testimony that the appellant Crowe said, at the time of the shooting, "you start getting their pocketbooks." This testimony was properly admitted.
The person to whom Crowe made the foregoing statement was not directly identified. The statement, of course, was most significant when considered in connection with the subsequent robbery of the deceased and the money left by the fleeing participants in the poker game. The jury found, upon ample evidence, that Wright was present, aiding and abetting Crowe in the commission of the crime. It is inferable that the statement in question was made to Wright. Thus, the statement was made during the commission of the crime by *271 Crowe, the principal to Wright, who was present, aiding and abetting, and was clearly admissible against both.
Appellants also charge that the Court of General Sessions of Laurens County was without jurisdiction to try the case because there was no evidence to show that the alleged crime occurred in that county. Appellants simply overlook the testimony of the Sheriff and the reply witness Weersing that the scene of the crime was in Laurens County. There was no testimony to the contrary.
The next question relates to the admission of reply testimony offered by the State. The State was allowed to offer witnesses in reply to contradict appellant Crowe's testimony that he drove his automobile to the scene of the shooting.
The admission of reply testimony rests largely in the discretion of the trial judge and we find no abuse of such discretion in the rulings of the court in this regard.
The final question involves the contention of appellant Crowe that the imposition of the death penalty constitutes cruel and unusual punishment in violation of both the State and Federal Constitutions. We adhere to our previous holdings to the contrary. Moorer v. MacDougall, 245 S.C. 633, 142 S.E. (2d) 46; State v. Gamble, 249 S.C. 605, 155 S.E. (2d) 916; State v. Atkinson, 253 S.C. 531, 172 S.E. (2d) 111. The basis of our rejection of the contention that the death penalty is unconstitutional was succinctly stated in Atkinson as follows: "The statute which prescribes the penalty for murder lawfully expresses the public policy of the State. As stated in Gamble, `the wisdom of this policy is a legislative question, not a judicial one'."
Since appellant Crowe received the death penalty, our consideration of this appeal has been governed by the principle that, in such cases, this Court will search the entire record for any prejudicial error affecting any substantial right of the appellant regardless of whether made the *272 basis of an exception. Such review of the record reveals no prejudicial error.
Judgment affirmed.
MOSS, C.J., and BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331209/ | 650 S.E.2d 165 (2007)
LAWYER DISCIPLINARY BOARD, Complainant,
v.
A. Wayne KING, a member of The West Virginia State Bar, Respondent.
No. 32974.
Supreme Court of Appeals of West Virginia.
Submitted January 9, 2007.
Decided February 16, 2007.
*166 Charles A. Jones, III, Office of Disciplinary Counsel, Charleston, for the Complainant.
Wayne King, Pro Se.
*167 PER CURIAM:
In this lawyer disciplinary matter, A. Wayne King (hereinafter referred to as "Respondent") objects to recommendations of the complainant Lawyer Disciplinary Board (hereinafter referred to as "Board") regarding resolution of the formal charge brought against Respondent on or about January 20, 2006. The complaint against Respondent was that he created the possibility of a conflict of interest because of the manner in which he entered into a loan transaction with a client in violation of Rule 1.8(a) of the West Virginia Rules of Professional Conduct. As a result of its review, the Hearing Panel Subcommittee of the Board recommended: immediate restitution to the client; suspension of Respondent's law license for a period of not less than six months with reinstatement contingent upon completion of twelve additional hours of continuing legal education in the area of ethics; after reinstatement, supervised practice of law for a period of one year; and payment of costs of the proceedings. We conclude from our review that Respondent violated the Rules of Professional Conduct, and we hereby impose the sanctions as recommended by the Board except for the length of the license suspension.
I. Factual and Procedural Background
According to the parties' representations before this Court, the facts are not in dispute. Respondent is a lawyer and active member of the West Virginia State Bar having a law office in the Town of Clay in Clay County, West Virginia, who solicited a loan from a client in June 2003. Respondent had represented the client for a period of years in a variety of legal matters and was representing the client in a fire loss claim at the time the loan was obtained.[1] A written promissory note was prepared by Respondent which provided interest on the loan at the rate of ten percent per annum and stated that Respondent would make monthly payments to the client beginning on August 1, 2003. However, the note did not set forth the amount of the monthly payments[2] and did not establish a date when the entire note was required to be fully paid. On June 4, 2003, the client wrote a check to Respondent for $15,000. Although the promissory note Respondent executed bore the date of June 4, 2003, the client testified that he had not reviewed the contents of the note at the time he wrote his check and did not receive a copy of the note until a few days after June 4. According to the client's testimony, Respondent did not suggest that the client seek advice of independent counsel[3] nor was the client afforded a reasonable opportunity to seek advice of independent counsel with respect to the loan agreement and note. Additionally, no documentary evidence was produced showing that the client consented to the loan agreement and waived any possible conflict of interest.
The client filed an ethics complaint against Respondent with the Board on August 7, 2003. The client attempted to withdraw the complaint on August 13, 2003, but the Board did not act on this request. Because the client renewed his complaint on April 22, 2004, the Office of Disciplinary Counsel (hereinafter referred to as "ODC") merged the complaints and then filed the formal charge against Respondent with this Court on January 20, 2006. Respondent filed his written answer to the charge on February 22, 2006, and the matter proceeded to hearing before the Hearing Panel Subcommittee on June 6, 2006. The Hearing Panel Subcommittee concluded that the evidence supported the charge that a violation of Rule 1.8(a) of the Rules of Professional Conduct occurred because Respondent: entered into a loan agreement and note with a client without fully delineating or disclosing the provisions of the agreement in writing; neglected to give the client a reasonable opportunity to seek advice of independent counsel regarding the loan agreement; and failed to obtain the *168 client's written consent to the loan transaction.
II. Standard of Review
The varying standards of review applied in lawyer disciplinary cases as explained in syllabus point three, Committee on Legal Ethics of the West Virginia State Bar v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), are:
A de novo standard applies to a review of the adjudicatory record made before the [Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful consideration to the [Board's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Board's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.
III. Discussion
Respondent was charged with violating Rule 1.8(a) of the West Virginia Rules of Professional Conduct which provides as follows:
Rule 1.8. Conflict of interest: Prohibited transactions.
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;
(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
(3) the client consents in writing thereto.
This Court held in syllabus point six of Office of Disciplinary Counsel v. Battistelli, 193 W.Va. 629, 457 S.E.2d 652 (1995), that "[a] lawyer who engages in a loan transaction with his or her client must, at a minimum, assure that the arrangement satisfies West Virginia Rule of Professional Conduct 1.8(a)(1) to (3)." It is clear from the facts in the case before us that, as the Board has proposed, all three subdivisions of Rule 1.8(a) were violated.
We are now faced with deciding the proper disciplinary action to prescribe under the circumstances. As we indicated in syllabus point four of Office of Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998), we rely on the factors set forth in Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure in determining the appropriate sanction to impose in a lawyer disciplinary matter. The factors contained in Rule 3.16 are:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer's misconduct; and (4) the existence of any aggravating or mitigating factors.
This Court has further recognized that "[a]ttorney disciplinary proceedings are not designed solely to punish the attorney, but rather to protect the public, to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the administration of justice." Lawyer Disciplinary Bd. v. Taylor, 192 W.Va. 139, 144, 451 S.E.2d 440, 445 (1994).
In contemplating the appropriate sanction in this case, we are mindful that Respondent's conduct in the instant matter is essentially the same conduct that caused us to enter an order on March 8, 2001, admonishing Respondent and directing that he take six additional hours of ethics as part of his continuing legal education requirement. See Lawyer Disciplinary Board v. A. Wayne King, No. 27742. We have formerly held that "[p]rior discipline is an aggravating factor . . . because it calls into question the fitness of the attorney to continue to practice a profession imbued with a public trust." Syl. Pt. 5, in part, Committee on Legal Ethics *169 v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107 (1986). Additionally, the Board asks us to consider the further aggravating factor of Respondent neglecting to report the $15,000 personal loan to the United States Bankruptcy Court in which Respondent had filed as a debtor.
The mitigating factors Respondent asserts in addition to his stated intent to repay the loan include that the loan involved a client who was a relative whom he continues to represent and that his failure to report the loan in his bankruptcy case was due to his lack of knowledge about bankruptcy proceedings. While we appreciate Respondent's explanations, we do not believe that they absolve him from being sanctioned for his pattern of misconduct. However, we take stock in the client's testimony at the hearing and his request that leniency be used in fashioning a sanction. We also note the client's apparent ambivalence in seeking discipline, as clearly evidenced by his withdrawal and reinstatement of the complaint. We give some weight to the fact that the client continues to call on Respondent to represent him in other legal matters despite Respondent's ethical lapse in this case.
Balancing the aggravating and mitigating circumstances in this case, we find that the Board's recommendation of a six month license suspension is unduly severe and instead impose a sixty-day suspension of Respondent's law license. In all other regards, we adopt the recommended sanctions of the Board.
IV. Conclusion
Based upon the above, this Court concludes that the charge against Respondent for violating Rule 1.8(a) of the West Virginia Rules of Professional Conduct has been proven by clear and convincing evidence.[4] Our considered review of the aggravating and mitigating factors in this case causes us to impose the following sanctions for the proven misconduct: (1) Suspension of Respondent's law license for a period of sixty days; (2) completion of twelve additional hours of continuing legal education in the area of ethics before Respondent may petition for license reinstatement; (3) supervision of Respondent's practice of law for a period of one year following reinstatement; (4) full and immediate restitution to Mr. Boggs of the outstanding loan balance plus ten percent interest from the date of the loan; and (5) payment of costs of these proceedings to the Board.
License suspended.
NOTES
[1] Since the loan arrangement at issue occurred, Respondent has represented the client in other legal matters.
[2] According to the testimony of both Respondent and the client, they verbally agreed to a monthly payment of $500.
[3] Respondent testified that he suggested that the client could take the promissory note to another lawyer whose office was in the same building.
[4] See Rule 3.7 of the West Virginia Rules of Lawyer Disciplinary Procedure ("In order to recommend the imposition of discipline of any lawyer, the allegations of the formal charge must be proved by clear and convincing evidence.") | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331198/ | 188 S.E.2d 326 (1972)
281 N.C. 253
STATE of North Carolina
v.
Haywood Lindale PEELE.
No. 110.
Supreme Court of North Carolina.
May 10, 1972.
*330 Robert Morgan, Atty. Gen., by Walter E. Ricks, III, Associate Atty. Gen., for the State.
A. Maxwell Ruppe and Paul G. Mallonee, Fayetteville, for defendant appellant.
HIGGINS, Justice.
The bills of indictment charged armed robbery and murder committed in the perpetration of the robbery. The defendant's witness Calloway had already been tried and entered pleas of guilty on the identical charges. The State's pre-sentence testimony on the charges against Calloway was transcribed and a copy was delivered to the defense counsel in response to the motion for discovery filed at the beginning of the hearing. The disclosure statute, Chapter 1064, Session Laws of 1967, now G.S. § 15-155.4, was enacted after this Court's decision in State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334. According to the statute, a pre-trial order may require the solicitor to produce for inspection and copy "specifically identified exhibits" to be used in the trial and to permit defense counsel to examine "specific expert witnesses" who may be called. The statute does not contemplate anything resembling the demand made by defense counsel in this case. The purpose of the statute is to enable a defendant to guard against surprise documents and surprise expert witnesses. Nothing of that nature was shown to be available or its use contemplated in this case. The order to produce a copy of the pre-sentence hearing would appear to have given defense counsel sufficient information to enable him to guard against surprises. The Assignment of Error No. 1 is not sustained.
By defendant's Assignments of Error Nos. 3 and 4, the defendant challenges the solicitor's leading questions. Examination discloses that questions, if on occasion somewhat leading, were intended to facilitate the hearing. The court was well within its prerogative in allowing them. State v. Bass, 280 N.C. 435, 186 S.E.2d 384; State v. Clanton, 278 N.C. 502, 180 S.E.2d 5; State v. Pearson, 258 N.C. 188, 128 S.E.2d 251. The Assignments of Error Nos. 3 and 4 based on leading questions are not sustained.
The Defendant's Assignment of Error No. 6 is addressed "To the court permitting Detective W. A. Newsome, a State's witness, on cross examination to volunteer information that was not in response to any question." The questions related to the officer's conversations with a witness. It appears that these conversations had occurred on more than one occasion between the officer and Gooding. They concerned the identity of the two men whom he had taken to and from the Icenogle store and the home of Catherine Winborn. The witness in his reply to questions had gone somewhat beyond the answers to the last question. In a long trial it is not unusual for a witness to give testimony somewhat beyond the precise form of a question. "Whether an answer *331 is responsive to a question is not the ultimate test on a motion to strike. If an unresponsive answer produces irrelevant facts, they may and should be stricken and withdrawn from the jury. However, if the answers bring forth relevant facts, they are nonetheless admissible because they are not specifically asked for or go beyond the scope of the question." State v. Ferguson, 280 N.C. 95, 185 S.E.2d 119; State v. Staten, 271 N.C. 600, 157 S.E.2d 225. Assignment of Error No. 6 is not sustained.
Defense counsel in the brief and in the oral argument stressfully contends that the court committed prejudicial error by refusing to admit in evidence the letter dated August 24, 1971, addressed to the defendant at 50 Gates Avenue, Brooklyn, New York. The letter was written forty-two days after the robbery and related to defendant's application for a job without indicating any date on which the application was made. Hence it contained nothing from which any inference may be drawn as to the whereabouts of the defendant on July 12, 1971. The letter was properly excluded as irrelevant. We note the defendant's objection to the letter solely because of the stress and importance defense counsel seemed to attach to it.
Defendant's 8th and final Assignment of Error challenges the sufficiency of the evidence to survive his motion to dismiss at the close of all the evidence. On this motion the State's evidence is deemed to be true. All inconsistencies and contradictions are to be resolved in favor of the State. The defendant's evidence in contradiction is not to be considered. The evidence when properly construed makes out a strong case for the prosecution showing a murder committed in the perpetration of a robbery.
Mrs. Icenogle left her husband alone in the store at 9 o'clock. The cash register was in place. She returned at 10 o'clock in response to a call from the officers. Mr. Icenogle was dead and the cash register missing. The defendant and Anthony Calloway are shown to have entered Icenogle's store just before 10 o'clock at night. A commotion in the store was heard. Calloway and the defendant were seen running from the store carrying a cash register. They appeared at the Winborn home, opened the cash register, divided the money, and left. Just before the robbery, Calloway had borrowed Catherine Winborn's twenty-two calibre pistol. Shortly after the occurrence he returned it. Icenogle's death resulted from a twenty-two calibre bullet. The evidence indicates that Calloway probably did the shooting, but both he and the defendant entered the store together. They left together with the cash register and divided the contents. Both were equally guilty of the murder which one committed in the presence of the other. "Where two or more persons aid and abet each other in the commission of a crime, all being present, each is a principal and equally guilty regardless. . . of which is the actual perpetrator. . . ." Strong's N.C. Index, 2d, Vol. 2, Criminal Law, § 9. See also State v. Aycoth, 272 N.C. 48, 157 S.E.2d 655; and State v. Ham, 238 N.C. 94, 76 S.E.2d 346.
The evidence in its light most favorable to the State, establishes all essential elements of murder committed in the perpetration of armed robbery. State v. Jones, 280 N.C. 60, 184 S.E.2d 862; State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; and State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. In the trial, conviction and sentence on the charge of murder in the first degree we find no error.
However, the face of the record proper requires this Court, of its own motion, to take notice of a fatal defect in the verdict and judgment in No. 71 CR 24751 charging armed robbery. Examination of the indictments, verdicts, and judgments disclose that the armed robbery charge was embraced in and made a part of the charge of murder in the first degree. Wharton's Criminal Law and Procedure, Vol. 1, Section *332 148, states the rule: "It is generally agreed that if a person is tried for a greater offense, he cannot be tried thereafter for a lesser offense necessarily involved in, and a part of, the greater, . . ." Many cases recognize and apply the same principle. Among them are State v. Thompson, 280 N.C. 202, 185 S.E.2d 666; State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892; State v. Parker, 262 N.C. 679, 138 S.E.2d 496; State v. Birckhead, 256 N.C. 494, 128 S.E.2d 838; and State v. Bell, 205 N.C. 225, 171 S.E. 50.
From the foregoing it follows as a matter of course that the judgment must be arrested in the robbery case.
In No. 71 CR 24752No error.
In No. 71 CR 24751Judgment arrested. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331254/ | 125 Ga. App. 537 (1972)
188 S.E.2d 278
WELDING PRODUCTS OF GEORGIA
v.
KUNIANSKY et al.
46874.
Court of Appeals of Georgia.
Argued February 7, 1972.
Decided February 22, 1972.
Peek, Whaley & Haldi, J. Robert Hardcastle, for appellant.
Shoob, McLain & Jessee, M. David Merritt, for appellees.
CLARK, Judge.
This case is an appeal by a plaintiff subtenant who had sustained damage by collapse of a roof from a summary judgment granted to a general contractor who had constructed the building on land owned by him. Construction had been completed in 1966 after which the contractor-owner sold the property on August 1, 1966. The roof collapsed almost four years later on July 22, 1970.
The complaint names as defendants the general contractorowner, the architect and his collaborator in the preparation of the plans and specifications, the roofer and the concern which placed the roof decking on the building, and the contractor who did the structural steel work for support of the roof. The contractor-owner is the sole defendant involved in this appeal.
The pertinent portion of the complaint alleges: "The collapse of said roof was due to the negligent and improper construction of the building and the roof by the co-defendant, Max Kuniansky, M. K. Construction Corp., Tip Top Roofers, Inc., and R. F. Burton Co. and S. D. Mullins Co., Inc., as well as the negligent and improper design of said building, roof and supports of roof by defendants, Norman Jaffe and O. C. Floyd, and the failure of all defendants to exercise reasonable care in inspecting said building and roof as the same was being constructed."
Defendant Kuniansky denied the material allegations of the complaint and moved for summary judgment supported by an affidavit in which he disposed that he, as a general contractor, had constructed the building in 1966 on his own land. He further deposed: "[S]aid building was built in strict compliance to plans and specifications furnished by the defendant, Norman Jaffe, an architect employed by Air Reduction Company, Inc., who was to lease the premises from your affiant. When said building was completed, it was sold on August 1, 1966, by *538 your affiant to Caroline Realty Investments, Inc. The lease with Air Reduction Company, Inc. being assigned to Caroline Realty Investments. Inc. That at no time has your affiant dealt with, had an agreement with, or entered into any relationship with the plaintiff herein ... That your affiant was never aware of any defects in the construction of said building through August 1, 1966, the time said premises were sold to Caroline Investments, Inc." No evidence was offered by the plaintiff in opposition to this defendant's motion.
Under the law of this State, absent fraudulent concealment of known defects, a seller-builder who conveys the realty and improvements thereon after completion is not liable to the purchaser thereof for property damages allegedly resulting from negligent construction. Dooley v. Berkner, 113 Ga. App. 162 (147 SE2d 685). Cf. Amos v. McDonald, 123 Ga. App. 509 (181 SE2d 515); Reynolds v. Wilson, 121 Ga. App. 153 (173 SE2d 256). Where, as here, as a subtenant of the purchaser's tenant complains in negligence against seller-builder we have an a fortiori situation.
Cases such as Hunt v. Star Photo Finishing Co., 115 Ga. App. 1 (153 SE2d 602) and Cox v. Ray M. Lee Co., 100 Ga. App. 333 (111 SE2d 246) relied upon by appellant are inapposite. In Hunt it was held that a design engineer may be held liable for property damage caused by an inherently and intrinsically dangerous roof design. In Cox it was ruled that where the work of an architect or a contractor is accepted by the owner, the former are not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though there was negligence in carrying out the contract, unless (1) the work is a nuisance per se or inherently or intrinsically dangerous or (2) the work done is so negligently defective as to be imminently dangerous to third persons.
For a general survey of the law which obtains in other jurisdictions on the question of a builder-vendor's liability *539 under tort, warranty and contract of sale for loss, injury or damage caused by defective condition, see Annotation in 25 ALR3d 383.
It having been made to appear on summary judgment from the pleadings and evidence submitted there was no genuine issue as to the controlling facts and that the defendant was entitled to judgment, the trial court did not err in granting same. Crutcher v. Crawford Land Co., 220 Ga. 298, 302 (138 SE2d 580).
Judgment affirmed. Jordan, P. J., and Deen, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331445/ | 113 S.E.2d 270 (1960)
252 N.C. 150
Besse N. SWARTZBERG, Executrix of the Estate of Roy E. Swartzberg,
v.
RESERVE LIFE INSURANCE COMPANY.
No. 90.
Supreme Court of North Carolina.
March 16, 1960.
*275 Uzzell & DuMont and William Vance Burrow, Asheville, for plaintiff, appellee.
Van Winkle, Walton, Buck & Wall and Herbert L. Hyde, Asheville, for defendant, appellant.
BOBBITT, Justice.
This is an action at law to recover benefits allegedly owing under the terms of an insurance policy. It is not a controversy without action, submitted upon an agreed statement of facts for the determination of a question in difference between the parties, as authorized by G.S. § 1-250. Dowling v. Southern R. Co., 194 N.C. 488, 140 S.E. 213; Briggs v. Asheville Developers, 191 N.C. 784, 133 S.E. 3.
Absent the stipulations, the action was for trial upon evidence pertinent to the issues raised by the pleadings. The crucial issues were raised by the allegations of defendant's further answer and defense and plaintiff's reply thereto. They were, in substance, as follows: (1) Did defendant issue its policy in reliance upon false statements made by Swartzberg in his application therefor, as alleged by defendant? (2) If so, is defendant's right to rescind the policy barred by estoppel or by waiver, as alleged by plaintiff? (3) Is defendant's right to rescind barred by the statute of limitations? In lieu of having these issues determined upon evidence by the court or a jury, the parties submitted the case for determination by the court on stipulated facts.
G.S. § 58-30 provides: "All statements or descriptions in any application for a policy of insurance, or in the policy itself, shall be deemed representations and not warranties, and a representation, unless material or fraudulent, will not prevent a recovery on the policy."
"Interpreting this statute, it is well settled that a material representation which is false will constitute sufficient ground upon which to avoid the policy." Tolbert v. Mutual Benefit Life Ins. Co., 236 N.C. 416, 419, 72 S.E.2d 915, 917, and cases cited. Under the stipulated facts, Swartzberg's false statements were material to the risk as a matter of law. Equitable Life Assur. Soc. of United States v. Ashby, 215 N.C. 280, 1 S.E.2d 830, and cases cited. Nothing else appearing, defendant was entitled to institute and maintain an action for rescission of the policy upon tender of the amount paid as premiums. George Washington Life Ins. Co. v. Box Co., 185 N.C. 543, 117 S.E. 785.
Defendant excepted to said additional finding of fact. True, unless so authorized by the stipulations under which the case was submitted, the court had no authority to make additional findings of fact. Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273; Ahoskie Production Credit Ass'n v. Whedbee, 251 N.C. 24, 110 *276 S.E.2d 795. However, for the reasons stated below, it is unnecessary to determine whether the stipulations under which the case was submitted are similar in any respect to the stipulations considered in Ahoskie Production Credit Ass'n v. Whedbee, supra.
Whether the doctors who treated Swartzberg would have divulged the falsity of said statements in the application is not determinative. Nor does decision depend upon whether defendant, by questioning these doctors or otherwise, could have discovered, within a reasonable time after January 2, 1952, that Swartzberg's said statements were false.
The conclusions of law to the effect that defendant had waived its right to rescind by its failure to ascertain within six months from January 2, 1952, that said statements were false, and by its acceptance of premiums, are erroneous. The legal principles applicable to waiver are fully discussed in Gouldin v. Inter-Ocean Ins. Co., 248 N.C. 161, 102 S.E.2d 846. As to equitable estoppel, see Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745.
In Gardner v. North State Mut. Life Ins. Co., 163 N.C. 367, 378, 79 S.E. 806, 810, 48 L.R.A.,N.S., 714, Walker, J., quotes with approval this statement from 29 A. & E. Enc. of Law, p. 1093: "There can be no waiver, unless the person against whom it is claimed had full knowledge of his rights and of facts which will enable him to take effectual action for their enforcement. No one can acquiesce in a wrong while ignorant that it has been committed, and that the effect of his action will be to confirm it." Defendant was under no duty, legal or equitable, to question the truth of the applicant's statements or, absent facts sufficient to put it on inquiry, to conduct an investigation to determine the truth or falsity thereof. Hardin v. Liverpool & London & Globe Ins. Co., 189 N.C. 423, 127 S.E. 353.
The burden of proof was on plaintiff to establish facts sufficient to constitute waiver or estoppel. Gouldin v. Inter-Ocean Ins. Co., supra; Peek v. Wachovia Bank & Trust Co., supra. She failed to do so.
When we come to consider the statute of limitations, the shoe is on the other foot. Here, as indicated below, the burden of proof was on defendant.
It is noted that defendant, having paid or tendered a total of $325.30, an amount equal to the premiums paid by Swartzberg, seeks to avoid the policy ab initio and in its entirety. Although called a further answer and defense, defendant's plea is in legal effect a cross action to rescind the policy.
Plaintiff's plea of the statute of limitations was sufficient. McIntosh, North Carolina Practice and Procedure, § 142, and cases cited. Defendant's cause or right of action to rescind accrued on January 2, 1952, immediately after the issuance of the policy. "In general a cause or right of action accrues, so as to start the running of the statute of limitations, as soon as the right to institute and maintain a suit arises, * * *." 54 C.J.S. Limitations of Actions § 109; 34 Am.Jur., Limitation of Actions § 113; Aydlett v. Major & Loomis Co., 211 N.C. 548, 551, 191 S.E. 31; Peal v. Martin, 207 N.C. 106, 176 S.E. 282.
Obviously, defendant's alleged cause of action to rescind is barred by the three year statute of limitations if considered solely as an action for breach of contract. G.S. § 1-52(1). The view most favorable to defendant is that G.S. § 1-52 (9) applies, under which an action "(f)or relief on the ground of fraud or mistake" must be instituted within three years from the date the cause of action accrues, but in such case "the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake." "In the construction of this section, the words, `relief *277 on the ground of fraud,' are used in the broad sense, to apply to all actions, both legal and equitable, where fraud is an element, and to all forms of fraud, including deception, imposition, duress, and undue influence." McIntosh, North Carolina Practice and Procedure, § 183; Little v. Bank of Wadesboro, 187 N.C. 1, 121 S.E. 185; Muse v. Hathaway, 193 N.C. 227, 136 S.E. 633. Whether considered fraud "in the broad sense," or "mistake," we construe G.S. § 1-52(9) as applicable to an action to rescind an insurance policy on the ground of false material statements in the application therefor.
The burden was on defendant to show that it instituted its action to rescind within the period prescribed by statute. Shearin v. Lloyd, 246 N.C. 363, 367, 98 S.E.2d 508, and cases cited. To repel the bar of the statute of limitations, the burden was on defendant to show that it did not acquire knowledge of the falsity of the statements in Swartzberg's application and was not put on notice thereof until a time within the period of three years next preceding the filing of its cross action to rescind the policy. Hooker v. Worthington, 134 N.C. 283, 46 S.E. 726; Tuttle v. Tuttle, 146 N.C. 484, 59 S.E. 1008, 125 Am. St. Rep. 481; Sanderlin v. Cross, 172 N.C. 234, 90 S.E. 213; Taylor v. Edmunds, 176 N.C. 325, 97 S.E. 42; Latham v. Latham, 184 N.C. 55, 113 S.E. 623; Johnson v. Pilot Life Ins. Co., 217 N.C. 139, 7 S.E.2d 475, 128 A.L.R. 1375; Id., 219 N.C. 202, 13 S.E.2d 241; Vail v. Vail, 233 N.C. 109, 116, 63 S.E.2d 202. The North Carolina rule is in accord with the "almost unanimous concensus of judicial opinion." Annotation: 118 A.L.R. 1002, and supplemental decisions. Defendant failed to establish facts sufficient to repel the bar of the three-year statute of limitations.
To resolve crucial factual issues raised by the pleadings, it was necessary to determine when defendant acquired knowledge or notice of the falsity of the statements in Swartzberg's application. As to this, the stipulations are silent. As indicated, with reference to estoppel and waiver, the burden of proof was on plaintiff to show that defendant had paid claims or accepted premiums after it acquired such knowledge or notice; but to repel the bar of the three-year statute of limitations, the burden of proof was on defendant to show that it did not acquire such knowledge or notice until within a period of three years next preceding the filing of its cross action to rescind the policy.
Thus, the stipulations do not provide the answers to crucial factual issues raised by the pleadings. The question arises: When the stipulations are silent as to such facts, are the respective issues to be decided by the court adversely to the party upon whom rests the burden of proof? This was done in Brinson & Kramer v. Norfolk Southern R. Co., 169 N.C. 425, 86 S.E. 371. However, the question was not discussed; and the Brinson case has not been cited as authority on that point. The better view, in our opinion, is this: When a case is submitted for decision on stipulated facts, and no evidence is offered, the court should not proceed to determine the cause unless all facts essential to a determination of the crucial issues raised by the pleadings are included in the stipulations. Rather, in such case, the court should proceed to trial to determine upon evidence the crucial factual issues not covered by the stipulations. In the instant case, the court erred in failing to follow this procedure.
In City of New Bern v. White, 251 N.C. 65, 110 S.E.2d 446, and cases cited, the cause was remanded because the facts stipulated did not answer the crucial issues raised by the pleadings. While, as stated above, the case was not submitted as a controversy without action, yet when a case is submitted on stipulated facts there is equal reason to require that the stipulations contain "the facts upon which the controversy depends." G.S. § 1-250. "An agreed statement must contain every essential element without any omission, * * *." 83 C.J. S. Stipulations § 10f(9), p. 22.
*278 Accordingly, the judgment is vacated and the cause remanded to the end that there may be a determination, in the light of the principles of law stated herein, of the facts necessary to a determination of the issues relating to (1) waiver and estoppel and (2) the statute of limitations. This course seems particularly appropriate when, as here, it appears that the court's decision was based on a misapprehension as to the applicable principles of law.
Judgment vacated, cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1727794/ | 970 So. 2d 832 (2007)
MASKREY
v.
STATE
No. 2D06-2565.
District Court of Appeal of Florida, Second District.
October 10, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331400/ | 113 S.E.2d 720 (1960)
252 N.C. 352
F. W. WATTS, Administrator of the Estate of Malcolm Watts, deceased,
v.
Frederick A. WATTS.
No. 385.
Supreme Court of North Carolina.
April 13, 1960.
*721 Harold R. Wilson, Winston-Salem, for plaintiff appellant.
Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendant appellee.
DENNY, Justice.
The plaintiff assigns as error the ruling of the court below in sustaining the defendant's motion for judgment as of nonsuit.
The plaintiff alleged in his complaint that prior to 9 November 1958 "the *722 defendant had actual knowledge that the emergency brake on said Mercury automobile was not in a safe working and mechanical condition and that the said defendant had purchased parts with which to repair said emergency brake but had failed to do so." The evidence offered in this connection was to the effect that the week before the accident the hand brake cable on the Mercury broke; that the defendant secured a hand brake cable and installed it but did not drive the car thereafter to test it and find out whether or not the emergency brake would hold. It is alleged that plaintiff's deceased pulled up the emergency brake, as required by law, when he parked the car. Even so, no evidence was offered tending to show that the hand brake was properly set, or that it was defective and, therefore, ineffective when so set. There is evidence that before the car could be pulled back off the sidewalk where it came to rest after the accident, it had to be taken out of gear and the emergency brake "pushed down." Unfortunately, the mechanic who repaired the car after the accident and could have testified, no doubt, as to the mechanical condition of the emergency brake immediately after the accident, died a short time before the case was tried. Consequently, the plaintiff was deprived of the benefit of evidence in this respect.
In the case of Harward v. General Motors Corp., 235 N.C. 88, 68 S.E.2d 855, 858, this Court said: "Negligence is never presumed from the mere fact of an accident or injury. The plaintiff has the burden of establishing by appropriate proof not only negligence but that such negligence was the proximate cause of the injury complained of. The plaintiff must also establish by his evidence a causal relation between the alleged negligence and the injury upon which a recovery is sought. Evidence that merely takes the matter into the realm of conjecture is insufficient. Rountree v. Fountain, 203 N.C. 381, 166 S.E. 329; Lynch v. Carolina Telephone & Telegraph Co., 204 N.C. 252, 167 S.E. 847. * * *" Williamson v. Randall, 248 N.C. 20, 102 S.E.2d 381; Parker v. Wilson, 247 N.C. 47, 100 S.E.2d 258.
The plaintiff contends that the defendant by not informing plaintiff's intestate of the defective condition of the hand brake on the Mercury car, created the emergency that was brought about when the car started to roll downhill and that the plaintiff's intestate under those circumstances was not required to pursue the wisest course of conduct in connection with his efforts to reenter the car. Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251.
If, however, plaintiff's intestate brought about the emergency or contributed to its creation by failing to park the car in the manner required by law, the plaintiff may not avail himself of the benefits of the doctrine of sudden emergency. Brunson v. Gainey, 245 N.C. 152, 95 S.E.2d 514; Cockman v. Powers, 248 N.C. 403, 103 S.E.2d 710.
There is no allegation or proof to the effect that when plaintiff's intestate parked the car headed downhill on Vargrave Street that he turned the front wheels of the Mercury automobile towards the curb of the street, as required by G.S. § 20-163 and G.S. § 20-124(b). A violation of these statutes constitutes negligence per se, but such violation must be a proximate cause of the injury to be actionable. Arnett v. Yeago, 247 N.C. 356, 100 S.E.2d 855; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246. In other words, the fact that the Mercury automobile ran down the street for a considerable distance immediately after it was parked, permits the inference that plaintiff's intestate did not turn its front wheels to the curb of Vargrave Street, as required by the above statutes. Arnett v. Yeago, supra.
However, in our opinion, we do not reach the question of contributory negligence. There is substantial variance between some of the essential allegations *723 of the complaint with respect to negligence and the evidence offered in support of such allegations. Moreover, irrespective of any variance in the allegations and proof, we do not think the plaintiff's evidence is sufficient to carry the case to the jury and support a verdict based on actionable negligence. Webster v. Webster, 247 N.C. 588, 101 S.E.2d 325; Harward v. General Motors Corp., supra.
The judgment as of nonsuit will be upheld.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1928554/ | 220 Md. 558 (1959)
155 A.2d 494
PRESSLEY
v.
STATE
[No. 24, September Term, 1959.]
Court of Appeals of Maryland.
Decided November 16, 1959.
Dissenting Opinion filed November 18, 1959.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Bryan B. Haddaway for the appellant.
Clayton A. Dietrich, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, Saul A. Harris, State's Attorney for Baltimore City, and Frank J. Marcellino, Assistant State's Attorney, on the brief, for the appellee.
HAMMOND, J., delivered the opinion of the Court.
Pressley, the appellant, and one Vass were indicted jointly for larceny and receiving stolen goods. At arraignment both pleaded not guilty. Each told the judge, when advised of his right to counsel, that he did not intend to retain a lawyer. The judge appointed counsel for Vass but told Pressley that he was old enough to represent himself or to seek his own lawyer.
*561 When the case came on for trial some eleven days later, the trial judge appointed Vass's lawyer to represent Pressley. Between the time of arraignment and trial, Vass decided to plead guilty to larceny, and after a conference with the lawyer Pressley decided to offer to plead guilty to receiving stolen goods, and the State accepted that plea. Vass was sentenced to two years for larceny, and Pressley, because of his extensive prior criminal record of larcenies and burglaries, to three years for receiving.
Pressley, without the aid of counsel, filed a timely appeal as an indigent person and in his handwritten petition asserted as grounds of error that the value of the stolen goods found in his possession (a sweater and two shirts) "did not warrant a term of three years for receiving same;" that he had no knowledge the clothing had been stolen; that he was not given counsel until the trial and "did not have enough time to fill my counsel in on my case and also the other defendant and I had the same counsel," and further: "It seems to me that I have been convicted of receiving the whole lot of the goods * * * I feel I should have been convicted of the goods that were found in my possession."
The record discloses that the automobile of one Joseph Luger, parked on Henrietta Street near Sharp Street in Baltimore, was entered and a suit, jackets, sweaters, slacks and shirts of the total value of some $280.00 stolen from it.
Vass was picked up near the scene a few days later wearing one of the stolen jackets. Pressley was arrested soon after and in his possession were a shirt and one of the sweaters, which bore the initials of Mr. Luger. Neither Vass nor Pressley took the stand, but Vass gave a statement to the police in which he said Pressley had suggested the larceny and that both had participated in it. A policeman testified, after the guilty pleas, that Pressley, upon arrest, would not make a statement but did say that he had helped Vass carry the clothing from Sharp and Henrietta Streets to 525 S. Sharp Street, that the clothing had come out of a car, and that the policeman's recollection was that Pressley had said he had thought it was stolen.
For the purposes of the decision we may assume, without *562 deciding, that Pressley was entitled to the appointment of counsel under Maryland Rule 723 b, as one charged in a serious case, despite his age, his experience in criminal courts, and the relative simplicity of the facts and law involved, and their interrelation. These considerations and the familiarity of Pressley's counsel with the case, because of his representation of Vass, lead us to conclude that the relatively short period of time the lawyer had to confer with Pressley was adequate under the facts of the case, so that the representation was not illusory or nugatory. People v. Quevreaux (Ill.), 95 N.E.2d 62, 66, cert. den. 340 U.S. 938; Tolbert v. United States (Mun. Ct. App., D.C.), 55 A.2d 91, 93; Slaughter v. United States (Mun. Ct. App., D.C.), 89 A.2d 646, 647. It is to be noted that neither appellant nor his lawyer seemed to find the time given them before trial to confer about the case inadequate. No request for postponement or complaint or objection was made by either prior to or at the trial.
That the same lawyer represented the two defendants is not of itself error. To show prejudice there must be revealed an actual or imminently potential conflict of interest which prevented the lawyer from impartially and adequately representing his clients. Whether there was, or not, such a conflict is a question of fact to be determined in each case.
In the case at bar, the evidence the State was prepared to offer against Vass left him little choice but to plead guilty to larceny. There is no evidence whatsoever that the plea was induced by the State as a promise of leniency or other reward, and at the time his lawyer was appointed to defend Pressley, it would appear that Vass had made his choice. The lawyer's immediate concern then became the proper course for Pressley to take. As indicated by his suggestion to the court that Vass's confession was not evidence against Pressley, the lawyer could not have failed to realize that the State would have difficulty in proving Pressley guilty of larceny, since the testimony of Vass against his accomplice would not of itself have been enough to convict, and there was real doubt of sufficient corroboration. Undoubtedly he knew, too, that Pressley's possession of the recently stolen shirts and the sweater bearing *563 the initials of the owner, and his admission to the police made it very likely that the verdict would be guilty of receiving stolen goods even without testimony from Vass. The decision to plead guilty to receiving stolen goods was logical under the circumstances. Pressley does not suggest that the lawyer pressured or induced him, or that there was any improper influence whatever upon him, to make the guilty plea.
A lawyer appointed to represent two defendants accused of joint criminal activity must determine whether there is, or is likely to be, a conflict of interest. If he finds that there is, he should advise the court and ask to be relieved. If he finds there is not, he properly can continue the joint representation if his clients agree. In the case before us the lawyer evidently found, when Pressley decided to plead guilty, that there was no conflict, and apparently neither Vass nor Pressley saw any. Pressley did not make any objection to the trial judge to Vass's lawyer representing him or claim that Vass's interests and his were antagonistic. There was no inconsistency or conflict between the interests of Vass and Pressley where the former admitted the larceny and the latter the receiving. That there could have been conflict or inconsistency in various hypothetical situations that could have developed if Pressley or Vass, or both, had decided to stand trial, is beside the point. Pressley made a free, voluntary and seemingly intelligent choice to plead guilty and the charge of conflict of interest must be judged in the light of what happened, not what might have happened.
The cases say that if the convicted one did not make known to the trial court his objection to the lawyer appointed for him, or his claim of conflict of interest, and no prejudice is revealed by the record, he cannot successfully maintain on appeal that there was reversible error by reason of the joint representation. In denying leave to appeal, sought on the grounds alleged in the case before us, the Court said in Plater v. Warden, 211 Md. 629, 631: "We think there was no showing of prejudice here, such as was shown in the cases of Glasser v. United States, 315 U.S. 60, and Wright v. Johnston, 77 Fed. Supp. 687. Cf. United States v. Bernett, 103 F. Supp. 39. * * * Nor was there any showing of timely *564 objection on the part of the petitioner to the trial court, on this or any other ground." See also McMahan v. Warden, 215 Md. 600, 601; State v. Tucker (W. Va.), 100 S.E.2d 411, 417, cert. den. 357 U.S. 908; People v. Meacham (Cal.), 190 P.2d 262, 269; Lebron v. United States, 229 F.2d 16, 20, (D.C. Cir.1955), cert. denied 351 U.S. 974; Sanders v. United States, 183 F.2d 748, (4th Cir.1950), cert. denied 340 U.S. 921; Farris v. Hunter, 144 F.2d 63, 65 (10th Cir., 1944); United States v. Rollnick, 91 F.2d 911, 916 (2d Cir., 1937).
Pressley was not represented in this Court by his lawyer below. His new counsel, appointed to represent him here, has faithfully and ably presented his client's claims of error at the trial. Although Pressley, in his petition for appeal, claims he did not know the goods were stolen and pleaded guilty only after he heard they had been, his real complaint looks to be that the sentence was too severe and that he was punished for receiving all the stolen clothing, when actually he received but a small part. His assignment of errors concludes with the statement: "I feel I should have been convicted of the goods that were found in my possession." We find the record to show he was convicted of receiving the goods found in his possession (which almost certainly were worth less than $100.00), that his sentence was authorized by Code (1957), Art. 27, sec. 467 (receiving stolen goods under the value of $100.00), and that his sentence reflected his bad criminal record. His assertions of conflict of interest find no support in the record.
Judgment affirmed.
BRUNE, C.J., filed the following dissenting opinion.
In my estimation this case was one in which the appellant should have had counsel. Counsel was in fact appointed for him, but not until just before the case was scheduled to go on trial; and then the same counsel who had previously been appointed to represent the appellant's co-defendant, Vass, was also appointed to represent the appellant, Pressley. Two questions arise in connection with this appointment a possible *565 conflict of interest between the two defendants and the shortness of time available for consultation both of which are accentuated by the legal questions incident to the testimony of the co-defendant, who would be an accomplice if Pressley were a participant in the larceny. See Cash v. Culver, 358 U.S. 633.
The conflict of interest was, I think, more than theoretical. Vass' statement to the police implicated Pressley as the moving spirit in the larceny. I believe that Vass might have been expected to plead guilty himself and, if Pressley stood trial, to testify against the latter on the charge of receiving stolen goods as well as on the larceny charge. Their joint counsel would scarcely have been in a position to challenge Vass' testimony or to attack his credibility on the basis of his past criminal record, or otherwise. Quite possibly, the evidence against Pressley on the receiving charge would have been sufficient to convict him even without Vass' testimony, and undoubtedly their joint counsel so believed. It is, however, my opinion that Pressley should have had the benefit of the legal advice of counsel other than the lawyer already appointed to represent Vass. It is also my opinion that the time allowed for consultation was unduly short, even after allowing for counsel's familiarity with Vass' version of the case.
Because of the seriousness of the offenses charged and because the legal questions arising out of the prospective testimony of an accomplice were such as would not ordinarily be within the knowledge of a layman (Cash v. Culver, supra), the need for counsel is, I think, apparent. The need for independent counsel also seems to me to have been present (Wright v. Johnson, 77 F. Supp. 687). Because of the legal problems involved, I do not think that Pressley should be charged, by reason of his silence, with having made an understanding waiver of any right to independent counsel and to adequate time for consultation with counsel. Hence it seems to me that his present contention could be raised on appeal.
I, therefore, think that the judgment should have been reversed and the case remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262799/ | 83 Cal.Rptr.2d 903 (1999)
71 Cal.App.4th 582
Karen HOLLISTER, Plaintiff and Respondent,
v.
Jerry S. BENZL, Defendant and Appellant.
No. G022570.
Court of Appeal, Fourth District, Division Three.
April 20, 1999.
Review Denied July 28, 1999.
*904 La Follette, Johnson, De Haas, Fesler & Ames, Schmid & Voiles, Denise H. Greer, Los Angeles, for Defendant and Appellant.
Hardiman & Cahill, Francis X. Hardiman for Plaintiff and Respondent.
OPINION
SONENSHINE, J.[*]
Jerry S. Benzl, a physician, appeals from the court's decision to reconsider and vacate its prior order compelling Karen Hollister to arbitrate her medical malpractice lawsuit.[1] We find the court had sufficient grounds to reconsider its prior order but incorrectly ruled on the matter.
I
In 1984, Hollister purchased a medical benefit plan from FHP, Inc. Ten years later, Hollister's primary care physician referred her to Benzl, a urologic gynecologist specialist. During her first office visit, Benzl's staff asked Hollister to sign an arbitration agreement and make her customary FHP $5 copayment. She did so.
The following year, Hollister was diagnosed with an advanced stage of cervical cancer and filed the underlying complaint alleging medical negligence, fraud and breach of fiduciary duty against FHP, Benzl and several laboratories. She claimed Benzl failed to diagnose and treat her cancer.
After considering the parties' briefs and oral argument, the court granted Benzl's petition to compel arbitration. It stayed Hollister's action against Benzl, stating its tentative ruling was to also stay the remainder of the lawsuit pending completion of the arbitration. It requested additional briefing on the latter issue.
Pursuant to Code of Civil Procedure section 1008, Hollister moved "for reconsideration of [the court's] order compelling arbitration and tentative to stay the action as to FHP as well as to ... Benzl." First, she urged the court not to stay her action against FHP because she was recently given a dismal prediction about her life expectancy. Next, Hollister asked the court to reconsider its order compelling arbitration, arguing new facts had been discovered showing the agreement was unenforceable under the Knox-Keene Health Care Service Plan Act of 1975 (Health & Saf.Code, § 1340 et seq.) (Knox-Keene Act). Benzl opposed the motion, arguing Hollister failed to present any new facts or legal theories for reconsideration of the matter. After a lengthy hearing, the court granted Hollister's motion for reconsideration and vacated its prior arbitration order.
II
We first address Benzl's contention the court exceeded its jurisdiction when it granted Hollister's motion to reconsider its prior order compelling arbitration. He maintains Hollister failed to set forth any new or different facts, circumstances or law as required by Code of Civil Procedure section 1008. The record belies this contention.
In Hollister's opposition to Benzl's petition to compel arbitration, she told the court FHP failed to comply with her discovery requests for documents establishing Benzl's relationship with FHP. She conceded she did not know the significance of these contracts, but asked the court to delay ruling on the petition until she received them. She set her motion to compel production on the same day as the hearing regarding Benzl's petition. The documents were not produced until Hollister's motion for reconsideration was heard. At that time, the court correctly realized this new evidence warranted a second look at its previous ruling. Indeed, it relied on several provisions of Benzl's contract with an FHP Plan Medical Group in vacating its prior order to compel arbitration. Although we conclude the court's reasoning was ultimately incorrect, the court certainly had authority to consider the Code of Civil Procedure section 1008 motion.
*905III
We are asked to decide whether Benzl's arbitration agreement with Hollister is valid. We begin by briefly reviewing the relevant provisions of the Knox-Keene Act. The Act's intent and purpose is to "promote the delivery of health and medical care to the people of the State of California who enroll in, or subscribe for the services rendered by, a health care service plan or specialized health care service plan by accomplishing [ ] the following: [¶] ... [¶] Assuring that subscribers and enrollees are educated and informed of the benefits and services available in order to enable a rational consumer choice in the marketplace ... [¶] ... [and] [promoting effective representation of the interests of subscribers and enrollees...." (Health & Saf.Code, § 1342.)[2]
To facilitate this goal, the Legislature determined plan providers, such as FHP, must use "disclosure forms or materials containing such information regarding the benefits, services, and terms of [FHP's] plan" so the public can easily make "comparisons between plan contracts of the same or other types of plans." (§ 1363, subd. (a).) One matter which must be predisclosed is whether "the plan utilizes arbitration to settle disputes." (§ 1363, subd. (a)(10).) The Legislature recognized waiver of one's right to a jury trial is an important consideration when comparing plan contracts.
Neither FHP nor Benzl mentioned arbitration in FHP's disclosure brochure. Hollister maintains these omissions render her arbitration contract with Benzl void. Relying on Harris v. Superior Court (1986) 188 Cal. App.3d 475, 233 Cal.Rptr. 186, Hollister premises her argument on the theory Benzl is a third party beneficiary of her contract with FHP. Hollister concludes this contractual relationship requires Benzl to comply with the Knox-Keene Act's arbitration predisclosure requirements because he is not entitled to benefits greater than those of the contracting parties. This argument fails because Hollister's premise is incorrect.
Hollister's reliance on Harris is misplaced. There, a family enrolled in Maxicare's health care plan. The father signed an application form containing a binding arbitration clause, stating, "I agree that any claim asserted ... against Maxicare, Hawthorne Community Medical Group ... their employees or other contracting health professionals ... is subject to binding arbitration." (Id. at p. 477, 233 Cal.Rptr. 186.) Thereafter, the wife and daughter filed a malpractice action against Maxicare and their physician, Mansoor Mirsaidi, who was an employee of Hawthorne Community Medical Group (Hawthorne).
The court granted Maxicare's motion to compel arbitration. Plaintiffs then asked the court to also compel Mirsaidi to participate in the arbitration. The trial court declined this request, concluding Mirsaidi was not a party to the arbitration agreement. The appellate court disagreed, holding that although the doctor did not sign the agreement, he was Hawthorne's employee, and "[t]his relationship is sufficient to bind [the doctor] to the arbitration agreement which named Hawthorne." (Harris v. Superior Court, supra, 188 Cal.App.3d at p. 478, 233 Cal.Rptr. 186.) The court explained, "Acting as Hawthorne's employee and on its behalf, Dr. Mirsaidi rendered medical care to plaintiffs. In so doing he was subject to Hawthorne's obligations under the arbitration agreement.... [¶] Familiar principles of contract law also support our decision. A third party beneficiary of a contract can gain no greater rights under that contract than the contracting parties. Dr. Mirsaidi was a third party beneficiary of the contractual provision requiring arbitration of members' claims against `employees or other contracting health professionals' of Hawthorne. Since Maxicare and Hawthorne, the contracting parties which procured this benefit for him, waived their rights to trial and agreed to arbitration instead, Dr. Mirsaidi's rights are no greater." (Id. at p. 479, 233 Cal.Rptr. 186, internal citations omitted.)
There is a glaring distinction between the situation in Harris and the one presented *906 here. Benzl is neither FHP's agent nor its employee. Indeed, FHP's brochure disclosed its participating physicians are independent contractors. Benzl is an independent contractor twice removed. He contracted with an FHP Plan Medical Group, which in turn is an independent contractor of FHP.[3] This relationship neither gave Benzl authority to enforce any of the provisions of the FHP/Hollister contract nor bound him to those provisions.
Furthermore, Benzl has no statutory duty to comply with the arbitration predisclosure requirements of the Knox-Keene Act. The Act was simply not intended to apply to him. On its face, the Act applies to "Health Care Service Plans" defined as "[a]ny person who undertakes to arrange for the provision of health care services to subscribers or enrollees, or to pay for or to reimburse any part of the cost for such services, in return for a prepaid or periodic charge paid by or on behalf of such subscribers or enrollees." (§ 1345, subd. (f).) FHP is a Health Care Service Plan; Benzl is not. Benzl's sole responsibility is to provide medical services.[4] Moreover, Benzl cannot be considered FHP's agent because, as explained above, he is an independent contractor hired by an autonomous Plan Medical Group, not FHP.
Hollister complains such a holding "frustrates the legislative purpose mandating prior disclosure." Not so. The purpose in mandating predisclosure is to educate potential enrollees "[i]f the plan utilizes arbitration to settle disputes." (§ 1363, subd. (a)(10).) FHP, not intending to utilize arbitration, satisfied its statutory duty by correctly informing Hollister of all "benefits, services, and terms of the plan contract." (§ 1363, subd. (a).) Hollister's claims against FHP will not be arbitrated.
Moreover, we note the Legislature enacted other stringent regulations to apply when treating physicians use arbitration agreements. Code of Civil Procedure section 1295 delineates the content and appearance of arbitration clauses in medical services contracts.[5] No one disputes Benzl's arbitration contract with Hollister complied with those requirements. And the record shows Hollister had the option not to sign the agreement [6] or to revoke it 30 days after signing it. She voluntarily agreed to sign the arbitration agreement before receiving medical treatment and is bound by it.
*907 DISPOSITION
The order denying the petition to compel arbitration is reversed.[7] Each party shall bear its own costs on appeal.
CROSBY, Acting P.J., and BEDSWORTH, J., concur.
NOTES
[*] Retired Associate Justice, Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] Benzl correctly asserts denial of a petition to compel arbitration is an appealable order. (Code Civ. Proc. § 1294.)
[2] All further statutory references are to the Health and Safety Code unless otherwise indicated.
[3] FHP's disclosure statement defines "FHP Plan Physician" as "[a] physician who has contracted with or is employed by, an FHP Plan Medical Group to provide services to members. In certain countries, FHP may also contract directly with (but not employ) a physician to provide such services. Participating Physicians are independent contractors and are not employees or agents of FHP." (Italics added.) It defines an "FHP Plan Medical Group" as an entity which contracts "with FHP ... to provide services to members" and are "independent contractors and not the employees or agents of FHP."
[4] Benzl agreed in his contract with an FHP Plan Medical Group, Mission Quality Care (Mission), "to perform `part-time' services on an `as needed' basis ... to patients [Mission] had contracted to provide health care services." Benzl's contract with Mission specified he was not its employee or agent.
[5] Code of Civil Procedure section 1295 provides in relevant part, "(a) Any contract for medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider shall have such provision as the first article of the contract and shall be expressed in the following language...."
We reject Hollister's contention that this provision does not apply because Benzl only offered Hollister an arbitration agreement which was not part of a medical services contract. This same argument was rejected in Hilleary v. Garvin (1987) 193 Cal.App.3d 322, 327, 238 Cal.Rptr. 247. "The clear meaning of the statute is that any contract for health care . .. whether written or oral, express or implied, is within the ambit of the legislation." (Id. at p. 327, 238 Cal.Rptr. 247.) Here, "[T]he parties, as in the traditional doctor-patient relationship, entered into an implied-in-fact contract that [Benzl] would use his best medical judgment to diagnose and treat her condition, and in return, she would follow his prescribed treatment and pay for his services." (Id. at p. 326, 238 Cal.Rptr. 247.)
[6] Indeed, a card attached to the agreement provided, "Attached is an Arbitration Agreement which I urge you to sign ... I hope you will sign the agreement after first reading it carefully."
[7] This time the court need not consider whether to stay the remaining portion of the lawsuit because FHP and the other defendants have settled with Hollister. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262805/ | 306 A.2d 732 (1973)
Betty A. STOREY, Defendant Below, Appellant,
v.
Charles W. CASTNER, Jr. and Carol Castner, his wife, Plaintiffs Below, Appellees.
Supreme Court of Delaware.
January 18, 1973.
Stanley C. Lowicki, of O'Donnell, Hughes & Lowicki, Wilmington, for defendant below, appellant.
John J. Schmittinger, of Schmittinger & Rodriguez, Dover, for plaintiffs below, appellees.
Before CAREY and HERRMANN, JJ., and DUFFY, Chancellor.
*733 HERRMANN, Justice:
The appellees seek dismissal of this appeal on the ground that it was filed too late.
I.
The jury returned a verdict in this negligence action in favor of the appellees. The appellant filed a motion for remittitur or new trial. On June 6, 1972, the Trial Judge filed with the Prothonotary copy of a letter opinion and order denying the motion. The letter was addressed to both counsel; but, in fact, no such letter or other notification of the action taken was ever received by counsel or the parties. The record shows that on June 28, 1972, the Trial Judge filed with the Prothonotary a copy of a second letter opinion and order addressed to counsel, duplicate of the first except for the date and the Prothonotary's receipt stamp which appears on the first but not on the second.
Having no knowledge of the first opinion and order and its filing, the parties considered the June 28 date as the governing date for the purpose of computing the 30 day limitation period for an appeal. This appeal was filed on July 25 within 30 days of the second opinion and order but not of the first. The appellees discovered the first opinion and order accidentally, during a review of the Prothonotary's record in the case. This motion to dismiss the appeal followed.
II.
The appellees base their motion to dismiss the appeal upon Superior Court Civil Rule 77(d), Del.C.Ann. That Rule places upon the Prothonotary the duty of notifying the parties of the entry of an order or judgment; but it provides: "Lack of notice of the entry by the Prothonotary does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed."
The appellees point out that Rule 77(d) was taken almost verbatim from Rule 77(d) of the Federal Rules of Civil Procedure; that the latter contained, however, an "excusable neglect" provision, now in the form of Rule 4(a) of the Federal Rules of Appellate Procedure, which permitted enlargement of the appeal time by the Circuit Court of Appeals under certain circumstances.[1] The appellees suggest that the omission in our Rules of a similar "excusable neglect" provision constitutes a defect in our appellate system fatal to this appeal.
There are two fundamental fallacies underlying the appellees' reliance upon Rule 77(d): (1) Rule 77(d) is a Rule of the Superior Court, not a Rule of this Court; and (2) there is no defect in our appellate system, by reason of the lack of a *734 Rule of this Court similar to Rule 4(a) of the Federal Rules of Appellate Procedure, because there is no power in this Court to enlarge, for any reason, the jurisdictional appeal time established by statute. 58 Del.L. Ch. 21.
Accordingly, we hold that this appeal is not untimely by reason of Rule 77(d).[2]
III.
It is manifest that the Trial Judge, in substituting the second opinion and order for the first, was attempting to rectify some clerical mistake, oversight, or omission which resulted in the failure of counsel to receive the first. While we do not approve of the informal and incomplete procedure followed in so doing, we find the Trial Judge's action proper under Rule 60(a) of the Superior Court Rules of Civil Procedure.[3] We are aware that the United States Supreme Court has indicated that such action was not contemplated by the similar Federal Rule 60(a). Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L. Ed. 283 (1944). Nonetheless, we conclude on the basis of Rule 60(a) that the Trial Judge, in effect, vacated his first opinion and order (although it was never actually withdrawn) and substituted the second for it, thus making the date of the second the effective date for appeal purposes.
Accordingly, the appeal was timely. The motion to dismiss the appeal is denied.
NOTES
[1] Illuminating is the 1946 Committee Note on Federal Rule 77(d):
"Rule 77(d) as amended makes it clear that notification by the clerk of the entry of a judgment has nothing to do with the starting of the time for appeal; that time starts to run from the date of entry of judgment and not from the date of notice of the entry. Notification by the clerk is merely for the convenience of litigants. And lack of such notification in itself has no effect upon the time for appeal; but in considering an application for extension of time for appeal as provided in Rule 73(a), the Court may take into account, as one of factors affecting its decision, whether the clerk failed to give notice as provided in Rule 77(d) or the party failed to receive the clerk's notice. It need not, however, extend the time for appeal merely because the clerk's notice was not sent or received. It would, therefore, be entirely unsafe for a party to rely on absence of notice from the clerk of the entry of a judgment, or to rely on the adverse party's failure to serve notice of the entry of a judgment. Any party may, of course, serve timely notice of the entry of a judgment upon the adverse party and thus preclude a successful application, under Rule 73(a), for the extension of the time for appeal." 7 Moore's Federal Practice ¶ 77.01 [4].
The Rule 73(a) referred to by the Committee is the predecessor of the present Rule 4(a) of the Federal Rules of Appellate Procedure.
[2] We take the occasion, however, to indicate to the Superior Court the desirability of reviewing the last sentence of its Rule 77(d) (providing that the Prothonotary's failure to notify the parties of the entry of an order or judgment does not affect appeal time) in the light of practicality and modern views of procedural due process.
[3] Rule 60(a) provides:
"Rule 60. Relief From Judgment Or Order
"(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262808/ | 207 F.Supp. 191 (1962)
Elizabeth NUDO
and
Elliott Lovering, Co-Administrators of Estate of Margaret Pozzuolo, Deceased,
and
Elizabeth Nudo, Administratrix for Estates of Rose Marie Pozzuolo, Deceased,
and
Gene Louise Pozzuolo, Deceased, Minors
v.
SOCIETE ANONYME BELGE D'EXPLOITATION DE LA NAVIGATION AERIENNE SABENA BELGIAN WORLD AIRLINES (a Belgian Corporation).
Civ. A. No. 31022.
United States District Court E. D. Pennsylvania.
July 2, 1962.
*192 Joseph P. Gorham, Philadelphia, Pa., for plaintiff.
Owen B. Rhoads, Dechert, Price & Rhoads, Philadelphia, Pa., for defendant.
GRIM, Senior District Judge.
This action arises out of the deaths of passengers in an airplane crash in Belgium. Defendant has moved to dismiss on the ground that this court has no jurisdiction of the action. The parties agree that since the airplane was on an international flight the question of jurisdiction is governed by Article 28 of the Warsaw Convention, 49 Stat. 3000:
"(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.
"(2) Questions of procedure shall be governed by the law of the court to which the case is submitted."
Defendant contends that none of the conditions of Article 28 is met. It is agreed that since the immediate destination of the flight was Brussels and the ultimate destination Munich that condition has not been met. It is agreed that the contract was made in Munich and that the domicile of the defendant carrier is in Belgium, so that neither of these conditions has been met.
Plaintiff contends that this court has jurisdiction on the ground that defendant has a principal place of business in Philadelphia, and indeed it appears that defendant maintains a ticket office here where it does a sizeable amount of business. In support of its contention plaintiff cites Winsor v. United Air Lines, 153 F.Supp. 244 (E.D.N.Y.1957). It may be observed that in the Winsor case the court admits that "the question of jurisdiction under Article 28 of the Warsaw Convention is not free from doubt," p. 247, and cites only one authority: Berner v. United Air Lines, 3 A.D.2d 9, 157 N.Y.S.2d 884 (App.Div. 1st Dept. 1956). The court in the Berner case, however, rested its determination squarely on that condition of Article 28 which applies where the carrier "has a place of business through which the contract has been made."
To me the language of Article 28 is clear when it says that the action must be brought before the court of the domicile of the carrier "or of his principal place of business." Under this language there can be only one principal place of business,[1] and defendant's unrefuted affidavits show that defendant's principal place of business is not in this District, or even in the United States.
I find, therefore, that none of the conditions of Article 28 is met and that this court has no jurisdiction of the action.
ORDER
AND NOW, July 2, 1962, defendant's motion to dismiss is granted.
NOTES
[1] I find this buttressed by the original French text, "du siège principal de son exploitation," which can be translated literally as "of the principal seat of its business." See Article 36 as to the language of the Convention. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262811/ | 84 Cal.Rptr.2d 496 (1999)
71 Cal.App.4th 1198
John TRINKLE, Plaintiff and Appellant,
v.
CALIFORNIA STATE LOTTERY, Defendant and Respondent.
No. C029083.
Court of Appeal, Third District.
April 6, 1999.
Review Denied June 23, 1999.
*497 Estrada & Thomson and William D. Thomson, Livermore, for Plaintiff and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, Martin H. Milas, Senior Assistant Attorney General, Marybelle D. Archibald, Supervising Deputy Attorney General, and David I. Bass, Deputy Attorney General, for Defendant and Respondent.
CALLAHAN, J.
Plaintiff John Trinkle sought "restitution of and disgorgement of profits" earned by the California State Lottery (CSL) on the theory that CSL engaged in unfair business competition (Bus. & Prof.Code, § 17200 et seq.) by operating the "illegal" games of Keno and Scratcher. The trial court sustained CSL's demurrer without leave to amend. Trinkle appeals.
We conclude that the CSL, a state agency, is not a "person" within the meaning of California's Unfair Competition Law and that statutory governmental immunity protects CSL from suit on the facts alleged. We will therefore affirm the judgment.
BACKGROUND
Since this is an appeal following an order sustaining a demurrer, we summarize and accept as true all well-pleaded material allegations of the complaint. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 8, fn. 3, 32 Cal.Rptr.2d 244, 876 P.2d 1043; Shoemaker v. Myers (1990) 52 Cal.3d 1, 7, 276 Cal. Rptr. 303, 801 P.2d 1054.)
Plaintiff John Trinkle (Trinkle) is the owner of a partnership known as Galaxy Vending (Galaxy).[1] Galaxy is in the business of operating vending and amusement machines located in bars and similar establishments. Galaxy pays the business establishments a percentage of the revenues in exchange for allowing the machines to operate on their premises.
During 1988-1996 CSL installed in these same types of establishments and in competition with Trinkle's machines, "Keno" terminals which allowed patrons to bet money and win prizes. In June 1996 the California Supreme Court declared Keno an unlawful activity.[2] From 1992-1996, CSL installed 4, 100 "Scratcher" vending machines in competition with Trinkle's machines. In June 1996 the state Attorney General ruled that *498 Scratcher machines "were illegal slot machines in violation of the California Penal Code ..." and ordered them removed.
CSL's Scratcher and Keno games damaged Trinkle's business by causing a "dramatic drop in revenue" due to the diversion of patrons' funds from Trinkle's machines to CSL's machines. In August 1996, Trinkle timely filed a claim with the State Board of Control, which was rejected.
The first amended complaint purports to state only one cause of action ___ for unfair competition in violation of Business and Professions Code section 17200 et seq. Trinkle alleged that the advertising and marketing campaign by CSL was untrue and misleading in that it led the public to wager money on Keno and Scratcher games under the belief they were legal and authorized by statute. Trinkle prayed for "restitution of monies and the disgorgement of profits" obtained by CSL through operation of the two "illegal" games.
CSL filed a general demurrer to the first amended complaint. Trinkle's opposition simply asked the court for leave to file a second amended complaint, adding a new defendant and a new cause of action. The court continued the hearing on its own motion, ordering Trinkle to file a response addressing the merits of CSL's demurrer. Trinkle then filed supplemental points and authorities opposing the demurrer. The court sustained the demurrer without leave to amend on three grounds: (1) CSL is a governmental agency and not a "person" amenable to suit under the Unfair Competition Law; (2) even if CSL were amenable to suit, damages are not available for past conduct; and (3) CSL's decision to proceed with Keno and Scratcher was protected by statutory discretionary immunity. (Gov.Code, § 818.4.)
APPEAL
Although we exercise our independent judgment in reviewing a demurrer to determine whether the factual allegations of the complaint state a cause of action (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706, 42 Cal.Rptr.2d 172), we must affirm if the trial court's decision to sustain the demurrer was correct on any theory. (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1.)
"Under the Unfair Competition Act (UCA) found at Business and Professions Code section 17200 et seq., any unlawful, unfair or fraudulent business act or practice is deemed to be unfair competition. Business and Professions Code section 17200 defines unfair competition as including any `unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500)... of the Business and Professions Code.'" (Podolsky v. First Healthcare Corp. (1996) 50 Cal.App.4th 632, 647, 58 Cal.Rptr.2d 89.)
Government Code section 815 declares that "[e]xcept as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." The statute amounts to a legislative declaration that governmental immunity from suit is the rule and liability the exception. "'Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.'" (Italics in original, Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1339, 243 Cal. Rptr. 463; see also Cal. Government Tort Liability Practice (Cont.Ed.Bar 1992) § 2.8, pp. 76-77; Legis. committee com., 32 West's Ann. Gov.Code (1995 ed.) § 815, p. 167.)
Nowhere in the Unfair Competition Act (UCA; Bus. & Prof. Code, § 17200 et seq.) is there a provision imposing governmental liability for violations of the act. Because there is no statute making public entities liable under the UCA, the general rule of governmental immunity must prevail.
Trinkle claims Government Code section 815.6 (all further unspecified statutory references are to this code), which imposes tort liability upon public entities for violation of "mandatory" duties, provides a statutory basis for overriding governmental immunity. Trinkle discerns such a mandatory duty in sections 8880.24 and 8880.35, which provide *499 that "[i]n decisions relating to advertising and promotion of the Lottery" the CSL Commission and its director "shall" comply with the letter and spirit of laws governing false advertising, including Business and Professions Code section 17500.
The argument fails. Section 815.6 states, "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty...." (Italics added.) Thus, in order to hold the government liable for failure to discharge a mandatory duty imposed by statute, the statute must be intended to protect against the type of injury suffered by the plaintiff. (Cal. Government Tort Liability Practice, supra, § 2.80, p. 156.) Where the harm was not one of the evils sought to be prevented by the statute, there can be no governmental liability. (Shelton v. City of Westminster (1982) 138 Cal.App.3d 610, 620, 188 Cal.Rptr. 205.) Assuming sections 8880.24 and 8880.35 contain mandatory directives to CSL to comply with the false advertising statutes, these enactments are manifestly designed to protect the public, i.e., patrons of the lottery, from misleading or deceptive advertising in the promotion of lottery games. The statute's purpose is clearly not to safeguard the profits of gaming operators such as Trinkle who compete with CSL. Section 815.6 does not apply.
While we believe the above analysis is sufficient to dispose of the question, we uphold the judgment on the alternative ground that a state agency such as CSL is not a "person" within the meaning of the UCA.
The UCA prescribes penalties against "persons" who engage in acts of unfair competition. (E.g., Bus. & Prof.Code, §§ 17203 [injunction], 17206 [monetary penalties].) Business and Professions Code section 17201 defines "person" for the purposes of the unfair competition law: "[T]he term person shall mean and include natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons."
Words of a statute must be given their ordinary meaning and receive a commonsense construction. (Community Memorial Hospital v. County of Ventura (1996) 50 Cal.App.4th 199, 209, 56 Cal.Rptr.2d 732.) The state is neither a natural person, partnership, corporation, association, nor other "organization[] of persons." It is a sovereign entity representing the people. Only through an unreasonable, strained construction can the state be deemed to fall within any of the statute's definitional categories.
Our conclusion finds support in case authority. (Community Memorial Hospital, supra, 50 Cal.App.4th at pp. 209-211, 56 Cal.Rptr.2d 732 [county hospital may not be sued under the UCA]; Santa Monica Rent Control Bd. v. Bluvshtein (1991) 230 Cal. App.3d 308, 281 Cal.Rptr. 298 [Rent Control Board, as a government agency, falls outside the definition of "person" set forth in the UCA].) Recently, the Second District squarely held that CSL, a government entity, is not a "person" within the meaning of the UCA and cannot be sued for violating its provisions. (Janis v. California State Lottery (1998) 68 Cal.App.4th 824, 831, 80 Cal. Rptr.2d 549.)
Trinkle nevertheless urges that we should find CSL amenable to suit for violations of the UCA because (1) even though it is a state agency, CSL operates in the fashion of a private business by competing with Trinkle's customers for game-playing dollars, and therefore liability would not infringe upon the state's sovereign functions, and (2) civil liability for unfair competition is consistent with the spirit of section 8880.24, which requires CSL to comply with laws regulating false and misleading advertising.
These arguments are unavailing. As shown previously, there is no statute in the UCA which overcomes the general rule of governmental tort immunity. If there is to be an exception in this area of regulation, it is the role of the Legislature to carve one out. This court cannot do so by implication, or because we believe that holding governmental entities liable for UCA violations is more in keeping with the "spirit" of the law.
Even if CSL as a state agency is not directly subject to suit under the UCA, Trinkle *500 maintains that it may be vicariously liable for the conduct of its employees pursuant to section 815.2. This section establishes the principle that a public entity may be liable under the doctrine of respondeat superior for the acts of its employee if such acts are not otherwise immune from liability. (Cal. Government Tort Liability Practice, supra, § 2.9, p. 78.)
The complaint does not identify any conduct by CSL employees which was not immune from liability. The wrongful conduct as alleged in the complaint was that CSL's advertising and marketing campaign deceived and misled the public into believing that the Keno and Scratcher games were legal. However, public entities are absolutely immune from suit for any injuries caused by misrepresentation, whether it be negligent or intentional. (§ 818.8.) Consequently, CSL enjoys blanket immunity from liability based on misrepresentation, regardless of whether its employees would be individually liable.[3](Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal. App.4th 30, 43, 37 Cal.Rptr.2d 860.)
Trinkle suggests that the facts alleged in the complaint could give rise to a cause of action on other legal theories such as common law unfair competition or negligent interference with prospective advantage. He does not explain however, how such theories circumvent the barrier of governmental immunity.
Finally, Trinkle asserts the facts pleaded in the complaint are susceptible of amendment to state a cause of action for public nuisance. He is incorrect. A private person cannot recover damages for a public nuisance unless it also constitutes a private nuisance as to him. (11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 144, p. 824; Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124-125, 99 Cal.Rptr. 350 [in order to obtain relief, private person must show special injury different in kind from public generally].) A private nuisance action can be brought only by those who have property rights in respect to the use and enjoyment of land. (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041, 29 Cal.Rptr.2d 664.)
According to Trinkle's complaint, he owns vending machines which are installed in third party business establishments for the amusement of patrons. Trinkle thus has no real property interest upon which to base a cause of action for nuisance.
We conclude that CSL is not amenable to suit under the unfair competition statutes. Since there is no liability as a matter of law, the complaint is not curable by amendment and leave to amend was properly denied. (Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, 77 Cal.Rptr.2d 1.)
DISPOSITION
The judgment is affirmed.
SCOTLAND, P.J., and MORRISON, J., concur.
NOTES
[1] A second plaintiff, Jim Nichols individually and doing business as Stockton Music Company, did not appeal from the judgment.
[2] This allegation is an obvious reference to Western Telcon, Inc. v. California State Lottery (1996) 13 Cal.4th 475, 53 Cal.Rptr.2d 812, 917 P.2d 651, in which the high court concluded that "[b]ecause CSL may conduct only lotteries, and because CSL Keno, as described in the regulations, is not a lottery, CSL is not authorized to conduct its Keno game." (Id. at p. 495, 53 Cal.Rptr.2d 812, 917 P.2d 651.)
[3] No CSL employees are named as defendants in the complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262819/ | 18 Md. App. 184 (1973)
306 A.2d 599
JAMES RAYMOND WATSON AND NAYSI HARRIS
v.
STATE OF MARYLAND.
No. 305, September Term, 1972.
Court of Special Appeals of Maryland.
Decided July 3, 1973.
The cause was argued before THOMPSON, MOYLAN and DAVIDSON, JJ.
Phillip Leventhal and Gary R. Alexander, with whom were Giordano, Alexander, Haas & Mahoney on the brief, for appellants.
Gary Melick, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George's County, and Edward P. Neal, Assistant State's Attorney for Prince George's County, on the brief, for appellee.
MOYLAN, J., delivered the opinion of the Court. DAVIDSON, J., dissents and filed a dissenting opinion at page 198 infra.
The appellants, James Raymond Watson and Naysi Harris, were both convicted in the Circuit Court for Prince George's County by a jury, presided over by Judge Robert B. Mathias, of possession of marihuana and of receiving a stolen television set belonging to the Colony 7 Motor Inn. Watson was, in addition, convicted of a combined burglary and armed robbery perpetrated against Mr. and Mrs. Robert Reed Wallace. Harris was convicted of receiving stolen goods taken from the Wallaces. Watson, upon this appeal, contends:
*186 (1) That he was subjected to an unconstitutional search and seizure;
(2) That he was subjected to an unconstitutional arrest in the District of Columbia; and
(3) That the evidence was legally insufficient to sustain the charges of possession of marihuana and of receiving the stolen goods taken from the Colony 7 Motel. Harris joins in contentions 1 and 3.
The Search and Seizure
At approximately 12:30 a.m. on Sunday, February 14, 1971, a combination burglary and armed robbery was committed by two persons at the apartment of Mr. and Mrs. Robert R. Wallace, Jr., in Suitland, Maryland. A 16-year-old son, Robert R. Wallace, III, was at home and was the victim of the robbery. On February 24, 1971, Detective Vincent Raubaugh of the Prince George's County Police Department was issued a search warrant for apartment 202, 5200 Livingston Terrace, Oxon Hill, Maryland. The supporting affidavit of Detective Raubaugh read as follows:
"I, Vincent Ronald Raubaugh, am a Detective of the Prince George's County Maryland Police Department. I am assigned to the Criminal Investigation Division, Robbery Squad, and am assigned to the Seat Pleasant Station. On this date I have personally interviewed Robert Reed Wallace, Jr., and his statement to me has been reduced to affidavit form. His affidavit has been attached hereto, and is made a part hereof by reference.
I have contacted the Metropolitan Police of the District of Columbia and have determined that D.C. tag 811-432 is listed to James Raymond Watson, Jr., and is listed for a 1967 Thunderbird. From the same source I have determined that D.C. license #753-528 is listed to a 1969 Lincoln Mark III owned by James Raymond Watson, Jr.
Based on this information I believe that the property stolen from Mr. Wallace is now located at the premises for which this warrant is sought."
*187 The supporting affidavit of Robert R. Wallace, Jr., read as follows:
"I, Robert Reed Wallace, Jr., live at 4248 Suitland Road, Suitland, Prince George's County, Maryland, apartment 201. On February 13, 1971, at about midnight, I left my apartment with my wife and went out, leaving the apartment in the care of my son, Robert Reed Wallace, III. My son is sixteen years old. At about one A.M. on the morning of February 14, 1971, I was summoned to return to my home. Upon my return, I talked to my son. He told me that he answered a knock at the door. When he did, he was faced by a man who forced his way in, produced a gun, and asked where the money and jewelry were. He said he would `burn' him if he didn't tell. He took him to the bedroom, tied him, then took him to the bathroom and put a pillowcase over his head. The man then called a second man into the apartment.
My son stated to me that he had overheard the conversation and thought he recognized the voice of the second man as being someone he had heard me talk to. My son stated that when he heard the men leave, he got loose and ran and locked the front door. He then ran to the window and saw a 1967 light green Thunderbird. He stated to me that he recognized the car as `Inkydink's' Thunderbird. `Inkydink' is a nickname for James Watson, Jr. My son has been in the presence of James Watson on numerous occasions and would recognize the voice. Goods valued at approximately eight thousand dollars were taken, this being my property and that of my wife. Among other things taken were a portable color television, an RCA model EL 418, serial 6546; a red coat; a polaroid camera; a diamond faced Omega watch. The television was valued at approximately 329.00 dollars.
On February 18, 1971, a cousin of my wife, who lives in the area, called me to tell me that a man *188 had offered to sell her a coat. The description was similar to that of the one stolen, and she had become suspicious. I told her to proceed with the sale, and my wife and I were present when the sale was to be made. My wife recognized the coat as being hers. I talked with the man who was attempting to sell the coat. He stated to me that he had gotten the coat from `Inkydink' at `Inkydink's' apartment. He told me that he had been inside and had seen this coat there, that he had seen two color television sets, a gray coat, and a diamond watch of the same description as the one stolen from me.
Acting on this information, I went to 5200 Livingston Terrace, apartment 202, Oxon Hill, Prince George's County, Maryland. I know this to be the address of `Inkydink' because I have visited him there. Although the name Harris appears on the door, I know from personal experience that this apartment is occupied by James Raymond Watson, Jr. At that time, I saw a green 1967 Thunderbird parked in front. I took that license number, D.C. 811-432 and have given it to Detective Raubaugh. I know Mr. Watson owns a 1969 Lincoln, and saw that vehicle parked in front of 5200 Livingston Terrace, Oxon Hill, Maryland. I took that license number, D.C. 753-528 and gave it to Detective Raubaugh.
The aforegoing is true to the best of my knowledge and belief, and is given in support of the application of Detective Raubaugh for a search warrant."
Items seized from the apartment when the warrant was executed tied Watson in with the burglary-robbery and formed the basis for the receiving convictions against both appellants. The appellants filed a pretrial Motion to Suppress the evidence as unconstitutionally seized. Their motion was denied. The issue before us is whether the warrant application establishes good probable cause for the search of the apartment and the seizure of goods therefrom.
*189 It is axiomatic that in analyzing the probable cause for the issuance of a search warrant, we are confined to the four corners of the affidavit itself. Smith v. State, 191 Md. 329, 335, 62 A.2d 287; Sessoms v. State, 3 Md. App. 293, 296-297, 239 A.2d 118; Dawson v. State, 11 Md. App. 694, 714-715, 276 A.2d 680.
Aside from determining that two license tags in question were listed to automobiles owned by Watson, the affidavit of Detective Raubaugh was simply formal in nature. The probable cause must be sought in the affidavit of Robert Wallace, Jr. With respect to Wallace, there was no credibility problem since the oath served as the guarantee of credibility. The great bulk of the substance contained in Wallace's affidavit, however, came to him from a number of secondary sources 1) his son, 2) his wife, 3) a cousin of his wife, and 4) an anonymous man who had attempted to peddle his wife's stolen coat. Before we can accept the information passed on from those secondary sources, we must subject those sources, not themselves under oath, to the two-pronged test mandated by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, in order to determine whether 1) they were "credible" or their information otherwise "reliable" and 2) whether there was a sound "basis of knowledge" for their conclusions.
The Aguilarian adequacy of the cousin's hearsay report is irrelevant, since what she passed on, as a mere conduit from the unnamed coat peddler, was later repeated by the peddler to the affiant Wallace himself. The cousin's earlier version, in scantier detail, became a redundancy.
The second-hand information from the wife consisted simply of the wife's recognition of her own recently stolen coat as it was offered for sale by the unnamed peddler. Her "basis of knowledge" under Aguilar is not to be doubted as she observed directly the coat she knew to be her own. Her very status wife of the affiant and victim of the theft and her being named Mrs. Robert Wallace, Jr. (by necessary implication) establishes her "credibility" under Aguilar. King v. State, 16 Md. App. 546, 298 A.2d 446; *190 Thompson v. State, 16 Md. App. 560, 298 A.2d 458; Dawson v. State, 14 Md. App. 18, 33-34, 284 A.2d 861.
The 16-year-old son similarly surmounts Aguilar's "credibility" hurdle as Robert Reed Wallace, III, witness and victim of armed robbery. Nor is there any doubt that the son had a sound "basis of knowledge" passing on only those things which he himself saw with his own eyes and heard with his own ears. Our first real analytical problem is to determine what can properly be made of the son's observations in terms of probable cause.
In making that determination, we are animated by the philosophy permeating the opinions of the Supreme Court on the spirit in which applications for warrants must be reviewed. As that Court said in United States v. Ventresca, 380 U.S. 102, at 108, 85 S.Ct. 741, at 746, 13 L.Ed.2d 684:
"These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting."
In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, the Supreme Court pointed out that the preference for warrants is so marked, that less persuasive evidence will justify the issuance of a warrant than would justify a warrantless search or warrantless arrest.[1] As the Court there said, at 378 U.S. 111:
*191 "Thus, when a search is based upon a magistrate's, rather than a police officer's, determination of probable cause, the reviewing courts will accept evidence of a less `judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,' ibid., and will sustain the judicial determination so long as `there was substantial basis for [the magistrate] to conclude that narcotics were probably present....'."
This preference was reiterated in Ventresca, 380 U.S. at 109:
"However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, 362 U.S. [257], at 270, [80 S.Ct. 725, at 735, 4 L.Ed.2d 697, at 707, 78 A.L.R.2d 233]."
See also Henderson v. State, 243 Md. 342, 221 A.2d 76; Tucker v. State, 244 Md. 488, 224 A.2d 111; Scott v. State, 4 Md. App. 482, 243 A.2d 609; Hall v. State, 5 Md. App. 394, 247 A.2d 548; Johnson v. State, 8 Md. App. 187, 259 A.2d 97; State v. Swales, 12 Md. App. 69, 73-74, 277 A.2d 449.
In that spirit, we look at the observations of the son as recited by his affiant father. The son answered a knock at the door and was met by an armed stranger who asked him where the money and jewelry were (thereby suggesting that *192 the robbers had some familiarity with the Wallaces and their worldly goods). The son was threatened with "burning" if he did not reveal the hiding place, was bound, and was put in the bathroom with a pillowcase over his head (strongly suggesting that the confederate yet to enter the apartment feared being recognized, since the stranger who led the interference had taken no steps to conceal his own appearance). The second man then entered the apartment.
The son could overhear the conversation that ensued and he thought that he recognized the voice of the second man as that of someone he had heard his father talk to. (The affiant father recited that his son had, on numerous occasions, been in the presence of the appellant Watson in company with the father, and would recognize Watson's voice.) When the son heard the robbers leave, he immediately got loose and ran to the window. He saw a 1967 light green Thunderbird. (The affiant father confirmed that the appellant Watson owned a 1967 green Thunderbird. Detective Raubaugh independently confirmed that Watson owned a 1967 Thunderbird.) The son recognized the car as "`Inkydink's' Thunderbird." (The father established that the appellant Watson was nicknamed "Inkydink" and was so known to his son.)
Even without looking ahead to the story of the unnamed peddler that items stolen in the course of this robbery were within four days observed in Watson's apartment, but remembering that probable cause "means less than evidence which would justify" conviction, Locke v. United States, 11 U.S. 339, 348, 3 L.Ed. 364, we believe, upon our constitutionally mandated review, that the observations of the son establish a reasonable probability that the appellant Watson was the second robber.
We look finally to the unnamed coat peddler. We know nothing about him his track record or his reputation for truth speaking, his very identity or his status. His "credibility" under Aguilar is absolute zero. Nor is there anything in the circumstances of his confrontation with the affiant Wallace which would reasonably insure trustworthiness which might show informational "reliability" even absent demonstrated "credibility." See *193 Thompson v. State, supra. His situation was defensive as he faced an actual or potential accuser. He could well have had a natural inclination to deflect blame away from himself. He abjectly failed to measure up against Aguilar's "veracity" prong in either of its alternative aspects.
That initial failure, however, does not end the inquiry. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, points out an alternative route to the establishment of "credibility" or "veracity" in an informant. Even where, under traditional Aguilarian analysis, the internal evidence about the informant himself, or about the circumstances under which the information was furnished, fails to establish intrinsically either personal "credibility" or informational "reliability," external evidence, contained elsewhere in the application, may be examined to see what buttressing it provides. Independent observation may tend to verify to corroborate the story as told by the informant. A showing that some of the story has been verified as true lends credence to the remaining unverified portions of the story. Hignut v. State, 17 Md. App. 399, 303 A.2d 173; Dawson v. State, 14 Md. App. 18, 41-42, 284 A.2d 861. Spinelli described the buttressing process, at 393 U.S. 415:
"If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate's decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration?"
We now turn the lens of Spinelli upon the story of the unnamed peddler. The peddler claimed that he had gotten Mrs. Wallace's stolen coat from "Inkydink" at "Inkydink's" apartment. He said that he had seen there, among other things, a color television set and a diamond watch. The affiant Wallace confirmed that a color television set and a *194 diamond watch, matching the description given by the peddler, had been taken in the same robbery that saw the loss of Mrs. Wallace's coat. The son, at the very least, placed "Inkydink's" 1967 Thunderbird at the robbery scene. The son may well have established, in addition, the voice of the second robber as that of "Inkydink." Independent information established that "Inkydink" was familiar enough with the Wallaces to direct the criminal effort toward specific, more valuable chattels. Independent information established that "Inkydink" would have had need to delay his entrance onto the crime stage until the confederate had hooded the victim who might otherwise have recognized him. We think the unnamed peddler's identification of "Inkydink" as the holder of the stolen goods was sufficiently "corroborated by independent sources," with respect to "certain parts" of his story, so as to be "as trustworthy as a tip which would pass Aguilar's tests without independent corroboration." Spinelli, at 393 U.S. 415. As to the unnamed peddler's "basis of knowledge," it is clear that he spoke from first-hand observation.
Looking at the warrant application as a whole, we are persuaded that it established probable cause to believe that fruits and other evidence of the crime would be found in the appellant Watson's apartment. The warrant, therefore, properly issued.
The Arrest of Watson
The appellant Watson claims that he was subjected to an unconstitutional arrest in the District of Columbia by Maryland officers who were not "in fresh pursuit." We do not need to rely upon Maryland Rule 1085 and to point out that the issue was not raised below and is not, therefore, preserved for appellate review. Since no fruits flowed from that arrest, the manner of its execution is palpably immaterial. Matthews v. State, 237 Md. 384, 387-388, 206 A.2d 714; Parker v. State, 5 Md. App. 422, 247 A.2d 552; King v. State, supra, 16 Md. App. at 548; Soles v. State, 16 Md. App. 656, 669, 299 A.2d 502.
*195 The Legal Sufficiency of the Evidence
Possession of Marihuana
A. Failure of the State to Offer the Marihuana Itself
Both appellants complain that the marihuana which was recovered by the police was not physically introduced into evidence. They contend that this makes the evidence against them legally insufficient. Their theory of evidence seems to be: "That is the way it is usually done; therefore, that is the way it must be done." Proof of the element of possession, as proof of any other fact, may be by testimonial evidence as well as by real evidence. Proving the corpus delicti in a possession case no more requires the physical introduction of the thing possessed, as a sine qua non, than proving the corpus delicti in an automobile theft case requires the physical introduction into evidence of the automobile itself or proving the corpus delicti in a murder case requires the physical offering of the corpse itself. Detective Wright recovered a brown paper bag full of suspected marihuana. He turned it over to Detective Snow who performed a field test on the spot which confirmed that the substance was, indeed, marihuana. The substance was later forwarded to the United States chemist, whose fuller analysis confirmed that it was, indeed, five ounces of marihuana. From those facts, the jury could fairly be convinced, beyond a reasonable doubt, that the substance recovered was marihuana. Under the circumstances, the trial judge properly denied the motion for a judgment of acquittal and properly submitted the issue to the jury. Williams v. State, 5 Md. App. 450, 459, 247 A.2d 731; Metz v. State, 9 Md. App. 15, 23, 262 A.2d 331. That Detective Snow subsequently used up the marihuana for training purposes at the Police Academy, though an unusual wrinkle in a possession case, does not erode the legal sufficiency of the inculpatory evidence.
B. Possession as to Harris
When the police proceeded to apartment 202, 5200 Livingston Terrace, Oxon Hill, to execute the search warrant *196 at 8:40 p.m. on February 24, 1971, the appellant Harris was alone in the apartment. The police rapped upon the door and announced themselves as police officers. They were denied entrance. They heard a scurry of activity within the apartment. Detective Raubaugh had had the foresight to station several officers to the rear of the building to cut off possible escape of the suspects. Detective Wright heard a window being opened, looked up and saw the appellant Harris throw out a brown paper bag. He did not so much seize it as catch it in self-defense, as it descended toward his head. The bag contained the five ounces of marihuana. Harris posits the unusual theory that the fleeting control necessary to drop the bag from the window does not constitute "possession" within the contemplation of the law. We cannot subscribe to her theory. She resided in the apartment whence the marihuana was thrown. She was alone in that apartment at the time it was thrown. She was the one to throw it. Any claim of belief in the innocuousness of the jettisoned bag would render her behavior, in the frantic moments before the police came through the front door, inexplicably bizarre. Guilty knowledge permeated her effort to dispose of the contraband. She may no more disclaim prior possession in the jettisoned marihuana than Tinker could have disclaimed erstwhile possession of the ball he passed on to Evers and Chance.
C. Possession as to Watson
The appellant Watson was not present at the apartment at the time it was searched. His efforts to disassociate himself from its contents are, nevertheless, unavailing. There was evidence that he maintained two apartments the one in question and another in the District of Columbia. There was evidence that he had been living at the Livingston Terrace apartment with the appellant Harris for between six months and one year. Watson admitted that he kept clothing and shoes at the apartment. This was substantiated by Harris. Watson admitted paying part of the rent. He admitted to Detective Raubaugh that he "stayed" at the apartment. Photographs of both appellants were found in the *197 apartment. Robert Wallace, Jr., testified, moreover, that he and the appellant Watson had been associated in the business of selling narcotics just prior to the crimes in question. There was further testimony that the appellant Watson had offered to give Wallace narcotics if Wallace would refrain from testifying against him at the trial now under review. Under all of the circumstances, we think the evidence permitted a finding that the appellant Watson had a possessory interest in the apartment and that he was in joint exclusive control of the contraband marihuana. See Folk v. State, 11 Md. App. 508, 275 A.2d 184.
The Legal Sufficiency of the Evidence
Receiving Stolen Goods
The only question raised by both appellants as to the legal sufficiency of the evidence to sustain the conviction for receiving the television set stolen from the Colony 7 Motor Inn goes to the proof of value. The appellants were convicted and sentenced for receiving stolen goods of the value of $100 and upwards. William Pritcher, the manager of the Colony 7 Motor Inn in Laurel, testified that on January 4, 1971, a GE color television was stolen from room 510 of the motel. A check of the serial number confirmed that the GE color television set recovered from the appellants' apartment was that stolen on January 4.
There is some confusion as to the value of the stolen television set, confusion attributable in no small measure to the dogged unwillingness of counsel to let the witness tell his story. With every half line of testimony interrupted by half a page of lawyerly harangue, it was exceedingly difficult for the witness to develop his thesis and the search for truth was well nigh lost in the process. Enough information filtered through, however, to permit the jury to infer that the present market value was $100 or more. At one point, the following questions and answers slipped through the procedural lines:
"Q. What was the value of that television set?
....
*198 A. Three hundred fifty dollars.
Q. And was that the price you paid for it?
A. That is right."
At a later point, another but equally legally sufficient version got into evidence:
"Q. What was the price you paid per unit for the group of GE television sets?
....
THE WITNESS: I cannot state exactly how much these sets cost us because at the time it was an arrangement on a rental basis. We have since purchased all these television sets.
Q. And on that rental basis what was the value of the set, this television set?
....
THE WITNESS: I would say approximately I can't give you the exact value $245 a set, I believe."
It was clearly inferable that the witness was testifying as to purchase price. The confusion stemmed from a somewhat involved rental-purchase plan, which the witness was never permitted to explain. He did point out, however, that the sets had been "just installed throughout the motel." Even though purchase price is not the ultimate standard, we think it clear, under Vucci v. State, 13 Md. App. 694, 700-702, 284 A.2d 646, that the jury could rationally infer that a recently installed television had not depreciated from either a $350 or a $245 starting point, as the case may have been, to a market value of less than $100. We find the evidence legally sufficient to sustain the convictions.
Judgments affirmed.
Davidson, J., dissenting:
I concur in the affirmance of appellant Harris's conviction for the possession of marijuana. I do not agree that the remaining convictions of appellants Harris and Watson should be affirmed.
*199 I
The Search and Seizure
A. The Search Warrant
I disagree that probable cause for the issuance of the warrant exists in the instant case. I agree with the majority that the police officer, the victim, his wife, and his 16-year-old son all satisfy the credibility aspect of Aguilar's veracity prong. I do not agree that the factual premises in the form of direct observations furnished by them are sufficient to support the conclusion that appellant Watson was probably a participant in the crime. Moreover, I disagree that there was sufficient independent verification of the direct observations of the coatseller to satisfy the credibility aspect of Aguilar's veracity prong. I therefore believe that none of the hearsay information provided by him should be relied upon. I conclude that the affidavits fail to furnish probable cause to believe that the stolen goods were located at appellant Watson's alleged residence.
1. The Sufficiency of the Factual Premises to Support the Conclusion that Probable Cause Exists
The majority finds "that the observations of the son [Robert Reed Wallace III] establish a reasonable probability that the appellant was the second robber." In reaching this result the majority initially relies on the statements of Robert Reed Wallace III, his father Robert Reed Wallace, Jr., and Detective Raubaugh. Robert Reed Wallace III was reported by his father to have said that he overheard a conversation between the two men who had entered the Wallace apartment about midnight on 13 February 1971, that he "thought he recognized the voice of the second man as being someone he had heard me [Robert Reed Wallace, Jr.] talk to," and that after the two men had left, he ran to a window and saw a 1967 light green Thunderbird that he recognized as the appellant's. Robert Reed Wallace, Jr., stated that his son had "been in the presence of James Watson on numerous occasions and would recognize the voice," and he further stated that he took the license number *200 of the 1967 green Thunderbird parked in front of James Watson's residence at 5200 Livingston Terrace and gave it to Detective Raubaugh. Detective Raubaugh stated that the tag number given to him by Wallace was listed in the District of Columbia as belonging to James Raymond Watson.
From the statements in the affidavits, the majority finds that Robert Reed Wallace III "may have established the voice of the robber as Inkydink [appellant Watson]." I find nothing to support that conclusion. The affidavits establish that Robert Reed Wallace III did not positively identify the voice he heard at the time of the commission of the crime as that of the appellant. Indeed, he was not even certain that he recognized the voice at all. He "thought" he did. These defects in identification are not cured by the fact that he was familiar with the appellant's voice and would recognize it. Rather, the latter fact raises an inference that it was not appellant's voice that Robert Reed Wallace III heard, for had he recognized the voice as that of Watson, he would undoubtedly have said so.
Moreover, this is not a case in which the absence of a clear and unequivocal statement of a critical fact can be excused because the affidavits were drawn "in the midst and haste of a criminal investigation." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746 (1965). The affidavits here show that ten days elapsed between the date of the perpetration of the crime and the date of the application for the warrant, and that six days elapsed between the time of the alleged sale by the unnamed coatseller and the date of the application for the warrant. During this period, the son had ample time to refresh his recollection, to reflect, to discuss his observations with his father and the police, and to endeavor by every means possible to identify clearly the voice that he had heard. The police had ample time to prepare a proper affidavit. Under these circumstances, the failure of the son to make a positive identification of the voice as that of Watson's, coupled with the attempt of the father to fill the identification gap, leads me to believe that the affidavit did not just inartfully fail to reflect that the *201 son was able to recognize appellant's voice, but rather was deliberately written to state only as much as could in good conscience be represented. If during this period of time Robert Reed Wallace III had identified the voice he heard as Watson's, he should have said so. His failure so to do convinces me that he did not identify the voice. So far as I am concerned, the affidavit establishes that the son did not recognize the voice he heard as Watson's. Therefore the facts that he thought he recognized the voice as being someone he had heard his father talk to and that he would recognize Watson's voice lend no support either to the conclusion that Watson was probably the robber or that probable cause exists to search Watson's alleged residence.
The majority additionally relies on two "suggestions" arising from the statements of the reliable informants. It states that the fact that the first robber asked Robert Reed Wallace III "where the money and jewelry were" suggests that the robbers had some familiarity with the Wallaces and their worldly goods. Notwithstanding the absence of any direct statement in the affidavit showing that Watson knew anything whatsoever about the Wallaces' circumstances, this "suggestion" is nonetheless elevated to the status of "independent information" which establishes that "Inkydink was familiar enough with the Wallaces to direct the criminal effort towards specific, more valuable chattels." This transfigured suggestion is then treated as support for a further inference that Watson was probably the second robber. In my view an inquiry as to the whereabouts of money and jewelry is an ordinary, usual and frequent occurrence in any robbery. I can find nothing unique in the circumstances of this case which converts such an occurrence into a suggestion that the robber knows the victim and his circumstances. So far as I am concerned, there are no facts in or inferences drawable from the affidavit to show that either of the thieves was familiar with the Wallaces' circumstances. Therefore, the fact that the first robber asked where the money and jewelry were lends no support to the conclusion that Watson was in all probability the second robber or that probable cause exists that the stolen goods would be found in his alleged residence.
*202 The majority next relies upon the fact that before the second robber entered the apartment, Robert Reed Wallace III was put in the bathroom with a pillowcase over his head. This circumstance, the majority says, "strongly suggest[s] that the confederate yet to enter the apartment feared being recognized, since the stranger who led the interference had taken no steps to conceal his own appearance." On the basis of information indicating that Watson was previously known to the Wallaces, they further conclude that independent information established "that Inkydink would have had need to delay his entrance onto the crime stage until the confederate had hooded his victim who might otherwise have recognized him." In my view, the fact that the second robber was not told to enter the apartment until after the son was hooded does not necessarily give rise to an inference that the second robber was previously known to the son. It is not uncommon for the degree of courage among thieves to vary substantially and for only one of two confederates, both previously unknown to the victim, to be willing to expose himself to the danger of subsequent identification. But even if such an inference were justified, the fact that Watson had previously been known to the Wallaces would not support the further inference that Watson was, in all probability, the second robber. At best, a coupling of the facts that the second robber was previously known to the Wallaces and that Watson was previously known to them lends credence to the possibility that Watson might have been the second thief.
In my view, the only observation offered by the credible informants tending to show a direct connection between appellant and the commission of the crime, and therefore between appellant and the stolen goods, consists of the fact that subsequent to the commission of the crime, Robert Reed Wallace III looked through a window and saw a car belonging to appellant. But he does not indicate precisely how much time had elapsed between the robbers' departure from the apartment and his seeing the automobile. He does not state that he saw Watson carrying the portable color television set, the red coat, the Polaroid camera, or any of *203 the other stolen goods valued at approximately $8,000; that he saw Watson or anyone else approaching, loading, getting into, sitting within, starting, or driving the car; or that he saw the car fleeing from the scene of the crime. Standing alone, the fact that appellant's car was observed at the scene of the crime at some time subsequent to its commission, a totally innocent circumstance unrelated in any way to any criminal activity, is "palpably insufficient" to establish a reasonable probability either that appellant was the thief or that the stolen goods would be found at his alleged residence. Soles v. State, 16 Md. App. 656, 667, 299 A.2d 502, 509 (1973). The fact of the car's presence becomes little if any more adequate as support for a finding of probable cause when it is bolstered by evidence showing only that it was possible that appellant might be the thief.
I am mindful of the settled principles that probable cause requires only a probability and not a prima facie showing of criminal activity, that information in affidavits is tested by less rigorous standards than those governing the admissibility of evidence at trial, that warrants are to be interpreted in a common sense and not hypertechnical fashion, and that great deference should be paid to the determination of the issuing judge. Hudson v. State, 16 Md. App. 49, 56-57, 294 A.2d 109, 113 (1972). Nevertheless, while probable cause is less than certainty or demonstration, it must be more than suspicion or possibility. Taylor v. State, 17 Md. App. 536, 544, 302 A.2d 646, 650 (1973); Cuffia v. State, 14 Md. App. 521, 525, 287 A.2d 319, 322 (1972); Cleveland v. State, 12 Md. App. 712, 718, 280 A.2d 520, 523 (1971). When all is said and done, as I read these affidavits, they establish at best nothing more than that Watson's car was present at the scene of the crime at some time subsequent to its commission; that the thief was previously known to the Wallaces; and that Watson was previously known to the Wallaces. My common sense tells me that the combination of the otherwise innocent circumstance of Watson's car being present at the scene of a crime at a time subsequent to its commission, coupled with the fact that Watson falls within the class of persons who might have *204 committed the crime, does not add up to a reasonable probability that appellant was a participant in the crime or probable cause to believe that the stolen goods were located at the premises in which he allegedly resided.
2. The Credibility of the Unnamed Coatseller
Having concluded that there was a reasonable probability that the appellant Watson was the second robber, the majority next proceeds to rely on the information provided to the affiant Wallace by an unnamed coatseller. They find his credibility to be established by independent verification from the affiants' direct observations and rely upon his information in determining that there was probable cause to believe that the stolen goods were located at appellant Watson's alleged residence. Since I believe that there was insufficient independent verification to establish the unnamed coatseller's credibility, I think that none of the hearsay information provided by him could be relied upon.
The amount of verification needed to render an unnamed informer's information reliable varies depending upon what is known about him and the circumstances under which the information was offered. "How much verification is needed depends upon how much bolstering the credibility requires." Hignut v. State, 17 Md. App. 399, 411, 303 A.2d 173, 179 (1973); Dawson v. State, 14 Md. App. 18, 41-42, 284 A.2d 861, 873 (1971). More extensive verification is required to establish the credibility of an informant described merely as "reliable" than is needed for an informant described as "reliable and whose information has in the past led to arrests and convictions." Thus, in order to assess the constitutional adequacy of supporting data given to establish the veracity of the unnamed informant, we must look first to what the affidavits tell us about the informant himself and the circumstances under which his information was furnished.
In evaluating the credibility of the unnamed coatseller, the majority states that "we know nothing about him" and determines that his credibility under Aguilar is "absolute zero." The majority further recognizes that his "situation *205 was defensive" and that "he could well have had a natural inclination to deflect blame away from himself." They then conclude that he "abjectly failed" to demonstrate informational reliability.
But credible information contained in the affidavit establishes that the unnamed coatseller was in possession of goods stolen from the Wallaces' home only four days previously. No explanation for his possession of these goods appears in the affidavits. Under Maryland law, his unexplained possession of recently stolen goods supports the rational inference that he himself was the thief and an accomplice to the crime. Devan v. State, 17 Md. App. 182, 194-95, 300 A.2d 705, 711-12 (1973); Jones v. State, 9 Md. App. 455, 460-61, 265 A.2d 271, 274, cert. denied, 258 Md. 728 (1970). As such, his credibility, based on what we know about him from the affidavits themselves is so tarnished that if he were a witness at Watson's trial, his testimony, even under oath, would be insufficient to support a conviction without corroboration.[1]Montgomery v. State, 17 Md. App. 119, 124, 300 A.2d 218, 221-22 (1973); Early v. State, 13 Md. App. 182, 191, 282 A.2d 154, 160 (1971). In my view, his credibility based upon the information about him contained in the affidavits, is not an absolute zero it is a minus. The data concerning the circumstances under which the information was furnished not only fails to establish any informational reliability, but rather leads me to believe that the coatseller had every reason to fabricate his information out of whole cloth.[2] Under these circumstances, extensive *206 independent observations are required to establish his credibility and to permit his information to be utilized in the determination of probable cause.
The modicum of significant detail recounted by the coatseller consists of his statements that:
1) he had been inside Watson's apartment;
2) he had gotten Mrs. Wallace's coat from Watson while at Watson's apartment;
3) while at Watson's apartment he had seen two color television sets, a gray coat and a "diamond watch of the same description as the one stolen from [Wallace]."
The extrinsic evidence relied upon by the majority as verification of these details consists of:
1) affiant Wallace's confirmation of the fact that the red coat in the coatseller's possession, a color television set and a diamond watch of the type described by the coatseller had been stolen from him;
2) the son's having "placed `Inkydink's' 1967 Thunderbird at the robbery scene";
3) the conclusion that "the son may well have established ... the voice of the second robber as that of `Inkydink'";
*207 4) "independent information" which "establishe[s] that `Inkydink' was familiar enough with the Wallaces to direct the criminal effort toward specific, more valuable chattels"; and
5) "independent information" which "establishe[s] that `Inkydink' would have had need to delay his entrance onto the crime stage until the confederate had hooded the victim who might otherwise have recognized him."[3]
Affiant Wallace's affidavit did state that his wife's red coat which the coatseller possessed, a color television set and a diamond watch of the type described by the coatseller had been stolen from him. But the fact that the coatseller was in possession of the stolen goods, which raises the inference that he was the thief, cannot conceivably support or bolster his credibility. In the absence of any detail describing the two color television sets allegedly seen by the coatseller at Watson's apartment, the fact that a television set was stolen from Wallace offers no confirmation of the coatseller's direct observations. As to the watch, the fact that an informant has accurately described stolen goods not in his possession usually would lend credence to the reliability of his information. In the instant case, however, Wallace's information that the watch described by the coatseller was stolen from him cannot be used to support the credibility of the one who, it may be inferred, stole the watch, since if he were the thief, he clearly would be able to describe the stolen goods. That he accurately described the watch, therefore, cannot be used to indicate that his information is reliable.
The remaining items of verification all relate to the identification of Watson as a possible perpetrator of the crime. They do not relate to any of the direct observations of the coatseller. In relying upon them, the majority confuses *208 the dual functions often served by an affiant's direct observations. First, such observations serve as factual premises necessary to support the conclusion that probable cause exists. In addition, they may, under proper circumstances, serve the function of corroborating or verifying hearsay information provided by an informant whose credibility has not otherwise been established. Dawson v. State, 11 Md. App. 694, 703, 276 A.2d 680, 684-85 (1971). But not every direct observation of an affiant tending to show probable cause can automatically also be utilized as verification. Only such observations of an affiant as independently establish the existence of some of the significant direct observations recounted by the informant can serve this purpose, for only "if some of the significant details of the informant's story are shown to be, in fact, true" are we encouraged "to believe that all of the story is probably true." Dawson v. State, 11 Md. App. 694, 704, 267 A.2d 680, 685 (1971). Only if the informant is shown to be right about some facts are we entitled to conclude that he is more probably right about other facts usually the critical and unverified facts. Spinelli v. United States, 393 U.S. 410, 426-27, 89 S.Ct. 584, 594 (1969) (White, J. Concurring).
Here none of the remaining direct observations of the affiants independently establish the existence of the few significant facts recounted by the coatseller. None of them show that any of his observations are in fact true. Had the coatseller described Watson's car or given its tag number, the fact that affiants Wallace and Detective Raubaugh had through their personal observations and investigations independently established that Watson owned a car of that description and tag number would have provided verification of the reliability of the coatseller's information. Had the coatseller stated Watson's address and apartment number, the fact that affiant Wallace, as a result of his own personal observations, knew that 5200 Livingston Terrace, Apartment 202, Oxon Hill, Prince George's County, Maryland, was in fact Watson's residence would have verified and lent credence to the reliability of the coatseller's information. Had the coatseller stated that the name Harris *209 appeared on Watson's apartment door, the fact that affiant Wallace, as a result of his own observations, knew this to be true would serve as verification of a fact recounted by the informant. But the coatseller offered no such descriptions or information. He stated only that he went to Watson's apartment; that he obtained Mrs. Wallace's stolen coat there; and that while there he saw two color television sets and a diamond watch matching the description of the one stolen from Wallace. Neither the son's statement that he saw Watson's 1967 green Thunderbird at the robbery scene, nor the fact that the voice heard by the son might have been that of Watson, nor the fact that the robber was familiar with Wallace and his circumstances, nor the fact that the robber was previously known to the Wallaces and had reason to delay his entrance upon the scene of the crime can establish, independently, that the coatseller went to Watson's apartment, got the wife's coat there and saw there two color television sets and a diamond watch matching the description of the one stolen from Wallace. Given the paucity of the coatseller's direct observations and the absence of any personal observations by the affiants which independently establish the existence of any of the few facts recounted by him, I can only conclude that the extrinsic evidence relied upon by the majority is completely inadequate to overcome the coatseller's negative credibility rating as established in the affidavits. By no stretch of the facts, the inferences or the imagination can I find, as does the majority, that the information provided by the coatseller is "as trustworthy as a tip which would pass Aguilar's tests without independent corroboration." Spinelli v. United States, supra, 393 U.S. at 415, 89 S.Ct. at 588. The coatseller's information, having failed to pass Aguilarian muster, cannot be relied upon.
In the absence of the coatseller's information that he saw the stolen goods at Watson's apartment, there is not enough in these affidavits to furnish probable cause to believe that the stolen goods would be found at Watson's alleged residence. In my opinion, the warrant was improperly issued.
*210 B. The Search and Seizure as Incident to a Lawful Arrest
In denying appellants' motions to suppress, Judge Mathias found not only that there was probable cause for the issuance of the warrant, but also that the search and seizure were justified as incident to a lawful arrest. On this appeal, the State contends that even if the warrant were improperly issued, the search and seizure can be justified as being incident to a lawful arrest.
The record shows that the warrant to search for an RCA portable color television and a woman's gray coat in Apartment 202, Livingston Terrace, Oxon Hill, Maryland was issued on 24 February 1971. About 8:40 p.m. on that date, Detective Raubaugh, a number of other police officers and Mr. Wallace arrived at 5200 Livingston Terrace. Detective Raubaugh "strategically" stationed several officers behind the apartment building. He stationed himself at the ground level front door to the apartment building and dispatched two other officers to the door of Apartment 202, located on the second floor. They knocked at the door and received no response. Hearing movement within the apartment, Detective Raubaugh ran to the rear of the building. He heard the noise of a window being opened, looked up, and saw a woman subsequently indentified as appellant Harris, toss a brown paper bag and an aluminum foil package from a second floor window. Detective Edward Wright caught the brown paper bag. The aluminum foil package fell upon the ground. Both detectives observed, felt and smelled the contents of the paper bag and, based on their experience, concluded that it contained marijuana in an amount sufficient for more than one person's use. Detective Raubaugh instructed Detective Wright to maintain a "chain of custody" with respect to the paper bag and the aluminum foil package; instructed the other uniformed officers stationed behind the apartment building to be careful because it was possible that the person they were looking for was armed; and instructed Detective Daniels, who had remained near the front entrance of the *211 apartment building, to force entry in order to prevent escape or destruction of evidence.
Daniels immediately began to kick at the door to Apartment 202, but to no avail. Within two or three minutes appellant Harris opened the door. She was then standing in the "living room-dining area" of the apartment. She was arrested immediately by Detective Raubaugh and advised of her rights. Various other officers and Wallace arrived on the scene. "A systematic check throughout the entire house for property stolen from Mr. Wallace" was made. The officers seized a television set, some tape decks, some amplifying equipment, some tires mounted on wheels and three mag-chrome wheels in the living room-dining area of the apartment. None of these items belonged to the victim Wallace or the Colony 7 Motor Inn, Inc. A fully-loaded .38 caliber pistol was found in either the living room-dining area or the bedroom of the apartment.[4] Various and sundry other articles were found in the bedroom of the apartment in or on a chest of drawers, a closet and the bed. Among these articles were two watches, a Polaroid camera, some clothing and a blanket, all identified at the time by Wallace as belonging to him. Also among these articles was a GE portable color television, serial number 5HOLO7219, subsequently identified as having been stolen from a motel owned by Colony 7 Motor Inn, Inc., on 5 January 1971. The RCA, portable television and woman's gray coat particularized in the warrant were not found.
It is axiomatic in Maryland that police officers may make a warrantless arrest when a misdemeanor is committed in their presence or where they have probable cause to believe that a felony had been or was being committed and that the person to be arrested committed it. Collins v. State, 17 Md. *212 App. 376, 383, 302 A.2d 693, 697 (1973); Thompson v. State, 15 Md. App. 335, 341, 290 A.2d 565, 568 (1972); Denikos v. State, 9 Md. App. 603, 608, 266 A.2d 354, 357 (1970); Code (1957), Art. 27, § 594B. It is equally axiomatic that a search without a warrant is reasonable if it is incidental to a lawful arrest. Gross v. State, 235 Md. 429, 440, 201 A.2d 808, 814 (1964); Brown v. State, 15 Md. App. 584, 588, 292 A.2d 762, 765 (1972); Richardson v. State, 14 Md. App. 487, 495, 287 A.2d 339, 343 (1972).
The controversy which raged in the Supreme Court between 1927 and 1969 "over the permissible scope ... the range in space the search perimeter of an admittedly proper `search incident,'" Brown v. State, supra, 15 Md. App. at 588, 292 A.2d at 765 was ultimately resolved in Chimel v. California, 395 U.S. 752, 763, 768, 89 S.Ct. 2034, 2040, 2043 (1969).
"There is ample justification, therefore, for a search of the arrestee's person and the area `within his immediate control' construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
"There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The `adherence to judicial processes' mandated by the Fourth Amendment requires no less. (Footnote omitted.)
* * *
"The search here went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of the search warrant, for extending the *213 search beyond that area. The scope of the search was, therefore, `unreasonable' under the Fourth and Fourteenth amendments, and the petitioner's conviction cannot stand." (Footnote omitted.)
Finally, in Coolidge v. New Hampshire, 403 U.S. 443, 465-66 n. 24, 91 S.Ct. 2022, 2038 n. 24 (1971), the Supreme Court, in explicating the "plain view" doctrine, said, with respect to searches incident to valid arrests inside a constitutionally protected area:
"Where, however, the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee."
Thus, the Supreme Court established that the "seizure perimeter was broader than the search perimeter." Brown v. State, supra, 15 Md. App. at 599, 292 A.2d at 770.
Application of these principles to the facts of this case produces a clear result. The record here shows that several officers were lawfully behind the apartment building when they saw appellant Harris toss a brown paper bag from the second floor window. Based on their experience, two officers concluded that the bag contained marijuana in an amount sufficient for more than one person's use. Possession of marijuana in sufficient quantities to indicate an intent to distribute is a felony. Code (1957), Art. 27, § 286. Thus there can be no question but that the police had probable cause to believe that a felony had been committed by appellant Harris, and they were justified in making a warrantless arrest.[5] The marijuana, having been abandoned by her, was *214 admissible in evidence. Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 446 (1924); Peterson, Deal & Hunt v. State, 15 Md. App. 478, 485, 292 A.2d 714, 719, cert. denied, 266 Md. 735 (1972); English v. State, 8 Md. App. 330, 340, 259 A.2d 822, 828 (1969); Scott v. State, 3 Md. App. 429, 440, 239 A.2d 771, 777 (1968), cert. denied, 255 Md. 744 (1969).
The record further shows that an officer immediately after witnessing the commission of the crime arrested appellant Harris, who was then standing in the living room-dining area of the apartment. There can be no question but that the police had the right to make a reasonable search incident to the lawful arrest. However, the scope of that search is limited to the area within which appellant Harris might have obtained either a weapon or something that could have been used as evidence against her, and the scope of the seizure is limited to objects found either within that area or outside of the area but in plain view. The record shows that none of the items found anywhere in the living room-dining area of the apartment belonged to Mr. and Mrs. Robert Reed Wallace, Jr., or to the Colony 7 Motor Inn, Inc. The items allegedly belonging to these parties were found in a bedroom of the apartment, in or on a chest of drawers, a closet and bed. The search and seizure of these items, being both beyond the permissible area of the search incident to the arrest and not within the ambit of seizure permitted by the plain view doctrine, were unreasonable under the fourth and fourteenth amendments. Unless there was a constitutional justification for extending the search beyond the living room-dining area to the bedroom, the appellants' convictions with respect to robbery and receiving stolen goods cannot stand.
In its brief the State contends that the officers were justified in "continuing their search of the apartment for appellant Watson and in this search other articles found in plain view would be within the scope of the legitimate search." The State thus attempts to legitimize an otherwise unlawful intrusion into the bedroom as being necessitated by exigent circumstances and thereby validate the seizure of items in the bedroom that were in plain view. This argument *215 was not raised below and is not properly before us. Maryland Rule 1085. In any event, the contention is totally without merit.
An intrusion into a constitutionally protected area without a warrant can be justified when exigent circumstances are present. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032 (1971); Terry v. State of Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879 (1968); Warden v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 1645-46 (1967); Brown v. State, supra, 15 Md. App. at 603, 292 A.2d at 773; Fellows v. State, 13 Md. App. 206, 209, 283 A.2d 1; 3 (1971), cert. denied, 264 Md. 747 (1972). However, the burden of proof is on the State to show that the warrantless entry was necessitated by exigent circumstances. Coolidge v. New Hampshire, supra; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95 (1951); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193 (1948); United States v. Goldenstein, 456 F.2d 1006, 1009 (8th Cir.1972). In order to justify a warrantless intrusion into a constitutionally protected area, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences drawn therefrom, reasonably warrant that intrusion. Here there is not an iota of evidence to establish the existence of exigent circumstances. None of the police officers testified that the intrusion into the bedroom was the result of an effort on their part to locate appellant Watson. Rather, there was substantial testimony that the intrusion was a result of "a systematic check throughout the entire house" to locate goods allegedly stolen from Mr. and Mrs. Wallace and the Colony 7 Motor Inn, Inc., and was undertaken pursuant to what the officers believed to be a valid search warrant. Under these circumstances, I cannot find that the warrantless intrusion into the bedroom falls within the ambit of the exigency doctrine.
On my independent constitutional appraisal of the record, I find that the lower court erred in its denials of appellants' motions to suppress and in admitting into evidence the articles seized in violation of the fourth and fourteenth amendments. I am unable to say that this evidence did not *216 contribute to appellants' convictions and was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 829 (1967). Consequently, I would reverse appellant Watson's convictions under counts 1 and 2 of indictment 11,170 and count 6 of indictment 11,171 as well as appellant Harris's convictions under counts 1 and 6 of indictment 11,171.
II
Possession of Marijuana By Appellant Watson
The majority finds the evidence sufficient to support a conclusion that the appellant Watson was in joint exclusive control of the contraband marijuana. I do not agree.
Code (1957), Art. 27, § 287 makes it unlawful for any person to possess any controlled dangerous substance. Code (1957), Art. 27, § 279 (a) C 7 includes marijuana within the definition of a controlled dangerous substance. Code (1957), Art. 27, § 277 (s) defines possession as "the exercise of actual or constructive dominion or control over a thing by one or more persons." This Court has held that the term control used in the statute means "to exercise restraining or direct influence over" the substance. Graybeal v. State, 13 Md. App. 557, 563, 284 A.2d 37, 40 (1971); Nutt v. State, 9 Md. App. 501, 507-08, 267 A.2d 280, 284 (1970). Under § 287 the State must adduce evidence which meets the test of legal sufficiency. Williams and McClelland v. State, 5 Md. App. 450, 459, 247 A.2d 731, 737 (1968). Such evidence must show directly or support a rational inference that the accused did in fact possess the drug in the sense contemplated by the statute, that is, that he exercised constructive dominion or control over it, or, more specifically, that he exercised restraint or direct influence over it.
In Davis and Green v. State, 9 Md. App. 48, 52-53, 262 A.2d 578, 581, 582-83 (1970), this Court, in reviewing the sufficiency of the evidence with respect to a conviction of control of marijuana said:
"It has been held that where one has exclusive *217 possession of a home or apartment in which prohibited narcotics are found, it may be inferred, even in the absence of other incriminating evidence, that such person knew of the presence of the narcotics and had control of them; but where the accused has not been in such exclusive possession, it may not be inferred that he knew of the presence of the narcotics and had control of them, unless other incriminating circumstances are shown which tend to buttress such an inference. The Supreme Court of California pointed out in People v. Redrick, 359 P.2d 255, that no sharp line can be drawn to distinguish the congeries of facts which will, and those which will not, constitute legally sufficient evidence that a person had control of a narcotic found in a place to which he had access, but not exclusive access, and over which he had some control, but not exclusive control.
* * *
"The only evidence linking appellant Davis with the marihuana sold by Green to Manzari on February 28, 1968 was that he was a co-lessee of the premises, resided there at least two nights weekly, and had an intimate personal relationship with the co-lessee Green. It was not shown that Davis was on the premises at the time of the sale. There was no evidence or inferences drawable therefrom to show where in the apartment Green kept the marihuana which he sold Manzari, nor was there any evidence showing that Davis knew Green had marihuana on the premises at the time or was using the apartment for the purpose of keeping and/or selling that prohibited narcotic drug. The conviction of Davis for exercising restraining or directing influence over the marihuana sold by Green to Manzari would appear to rest entirely on the fact of his co-occupancy of the apartment and his relationship with Green. To convict Davis because, as a joint occupant of the premises from *218 which the marihuana was sold, he had non-exclusive access thereto is to infer his guilt solely on account of his intimate relationship and association with Green. We think this, without more, too thin a nexus upon which to predicate guilt, and we therefore reverse Davis's conviction of control of narcotics on February 28, 1968."
The record shows that appellant Watson was a joint occupant of the apartment from the window of which the marijuana was thrown. Because the record further shows that he had neither exclusive possession of, exclusive control over or exclusive access to that apartment, this evidence is insufficient, in and of itself, to permit an inference that appellant Watson knew of the presence of the narcotics and had control of them. Davis and Green, supra, see Barksdale v. State, 15 Md. App. 469, 475, 291 A.2d 495, 498 (1972); Puckett v. State, 13 Md. App. 584, 587-88, 284 A.2d 252, 253-54 (1971).
The only other incriminating circumstances shown which might conceivably buttress such an inference consist of Watson's admission that he had been convicted of possession of marijuana in 1968 and the testimony of Robert Reed Wallace, Jr., that appellant Watson and he were associated in the business of selling narcotics prior to November 1970 and that appellant Watson offered to give him narcotics if he would not testify against him at the trial. I think that any or all of these facts, if believed, are too remote in time and too indefinite in character to be sufficient to justify the inference that appellant Watson had knowledge or control of the narcotics found at 5200 Livingston Terrace. So far as I am concerned, there is nothing in this record to show that appellant Watson himself kept, used or sold narcotics on the premises at any time. Nor was it shown that appellant Watson was on the premises at any time that narcotics were visible, in use or being sold. It was not shown that Watson was on the premises at the time the narcotics in question were discovered. There was no direct or indirect evidence to show where in the apartment appellant Harris kept the marijuana which she threw out of the window, or that any *219 other narcotics or narcotic paraphernalia were present at the premises. Nor was there any evidence showing that appellant Watson knew or had reason to know that appellant Harris had marijuana on the premises at any time or was using the apartment for the purpose of keeping that prohibited drug. The conviction here, like that in Davis and Green, supra, appears to rest entirely on the facts of Watson's co-occupancy of the apartment and his relationship with appellant Harris. I think this, without more, too thin a nexus upon which to predicate guilt and would therefore reverse Watson's conviction of possession of narcotics.[6]
NOTES
[1] The definition of "probable cause" remains a constant, of course, applying alike to searches and to arrests, with warrants or without warrants. The "preference" is rather a rule of construction for the resolution of "doubtful or marginal cases.
[1] I am fully cognizant of the established proposition that the standard of probable cause is only the probability and not a prima facie showing of criminal activities. Hudson v. State, 16 Md. App. 49, 56-57, 294 A.2d 109, 113 (1972). I am not suggesting that if the unnamed coatseller were found to be credible, corroboration of his reliable information would be a condition precedent to the establishment of probable cause. I am simply stating the obvious: the fact that one is a thief and an accomplice to a crime detracts from his credibility whether he is giving information as a witness at a trial or as an informant in an affidavit supporting a search warrant.
[2] I am fully cognizant of the established proposition that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, Husdon v. State, supra, and its corollary that information given to the police in a voluntary confession by a co-defendant, naming some other person as a confederate, can afford a basis for probable cause to believe that the person so named was a confederate and a participant in the perpetration of the crime. Thompson v. State, 16 Md. App. 560, 567, 298 A.2d 458, 462 (1973); Edwards v. State, 7 Md. App. 108, 112 n. 1, 253 A.2d 764, 767 n. 1 (1969); Boone v. State, 2 Md. App. 80, 93, 233 A.2d 476, 483 (1967). However, I see a distinct difference between the reliability of information voluntarily given by a confederate in a confession to the police and the reliability of information given by a confederate to a private party under unknown circumstances. In both instances the confederates are motivated to exculpate themselves by blaming another. But the confessor to the police is further motivated to tell the truth by the certain knowledge, imparted to him by the police, that the veracity of his statements will be subjected to scrutiny by the prosecutor, a jury and/or a judge. Thus in his case there are some circumstances reasonably insuring the reliability of the information and affording it some degree of persuasiveness. In contrast, the informant relating information to a private party is totally without motivation to do anything other than exculpate himself. The absence of any circumstance reasonably insuring the reliability of such information divests it completely of any persuasive character.
[3] I have explained the areas of my disagreement with the conclusions drawn by the majority from the facts set forth in the affidavits in Section I(A)(1) above. Under my analysis here, the same result would be reached whether the disputed conclusions are included in or excluded from consideration. I therefore assume them to be valid for the purposes of this discussion.
[4] Detective Raubaugh, who did not himself engage in the search but sat at the dining room table as items were brought there for inventorying, testified that the gun was found behind a picture on a television set in the living room-dining area. Officer Daniels, who personally engaged in the search, testified that the .38 caliber pistol, which he had initialed, was found in the bedroom. On cross-examination he stated that Detective Raubaugh would be incorrect if he had testified that the gun was found in the living room-dining area.
[5] Both appellant Watson and appellant Harris were indicted for both possession of marijuana and possession of marijuana in an amount sufficient to show intent to sell. They were convicted of the former. Possession of any quantity of a controlled dangerous substance is a misdemeanor. Code (1957), Art. 27, § 287. The police were justified in making a warrantless arrest for this crime as well, since they had observed appellant Harris committing the misdemeanor in their presence.
[6] My conclusions with respect to appellant Watson make it unnecessary for me to decide the question of the legality of his arrest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262852/ | 124 N.J. Super. 303 (1973)
306 A.2d 483
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT LAND, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued April 2, 1973.
Decided June 20, 1973.
*304 Before Judges FRITZ, LYNCH and TRAUTWEIN.
Ms. Paula G. Roberts argued the cause for the appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).
Mr. David L. Rhoads argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney, Mr. Kenneth P. Ply, Assistant Prosecutor, of counsel).
PER CURIAM.
After indictment defendant was found guilty by a jury of murder in the first degree. He was sentenced to life imprisonment in accordance with N.J.S.A. 2A:113-3 which, as now construed, under State v. Funicello, 60 N.J. 60 (1972), mandates such a penalty for first degree murder.
Defendant's plight stems from his participation in a murder-stabbing incident with robbery overtones.
The main thrust of defendant's argument on this appeal is directed toward the constitutional validity of his sentence. *305 He contends that the penalty provisions of present New Jersey statutes governing murder impose an impermissible burden on an accused's exercise of his right not to incriminate himself under the Fifth Amendment and his Sixth Amendment right to a jury trial. Accordingly, he seeks a remand for reconsideration of sentence. In fine, he says that under a first degree murder charge, a defendant has two plea choices with correspondingly different sentence exposures. If he pleads not guilty and takes his chance with a jury, a conviction mandates life imprisonment. N.J.S.A. 2A:113-4. If he pleads non vult, thus relinquishing his right against self-incrimination and to be tried by a jury, he may, in the sentencing judge's discretion, be sentenced to a term for years or life. N.J.S.A. 2A:113-3. Thus, he says, the same burden or attraction, albeit to a lesser degree, as that which existed prior to United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)[1] and one of its progeny, State v. Funicello, supra, continues to plague one accused of murder in the first degree. The question, stated another way, is Does N.J.S.A. 2A:113-4 (mandatory life sentence upon conviction for first degree murder) and N.J.S.A. 2A:113-3 (a sentence range for a term for years, with the possiblity of immediate probation, to life upon a non vult plea) still embrace the evil of a needless encouragement of guilty pleas? United States v. Jackson, supra, 390 U.S. at 583, 88 S.Ct. 1209. We believe not.
Before we detail our reasons, however, we deal with the threshold question of whether defendant has the requisite *306 standing to raise his main question in light of his actually pleading not guilty and being tried by a jury. Until the New Jersey Supreme Court, on remand, modified the defendant's sentence to life imprisonment in State v. Funicello, supra, it would appear that appellant would not have had the requisite standing to raise the question here posed, State v. Sullivan, 43 N.J. 209, 247 (1964), cert. den. 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed.2d 477 (1966); State v. Reynolds, 43 N.J. 597, 603 (1965); State v. Forcella, 52 N.J. 263, 284 (1968), rev'd and rem. sub nom. Funicello v. State, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971), reh. den. 404 U.S. 876, 92 S.Ct. 31, 30 L.Ed.2d 125 (1971), appeal after remand 60 N.J. 60 (1972), cert. den. sub nom. New Jersey v. Presha, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972). By virtue of the Funicello remand and resentencing we must conclude, however, that the United States Supreme Court accorded standing to the defendant there involved to raise his challenge on constitutional grounds and within a framework identical to those here present. Accordingly, we can do no less and therefore hold that defendant has standing to raise the question of his Fifth and Sixth Amendment rights despite not having incriminated himself or waiving a jury trial.
As regards the validity of the sentence imposed in light of the interdiction of the Fifth and Sixth Amendment, we conclude that Jackson is distinguishable. State v. Hubbard, 123 N.J. Super. 345 (App. Div. 1973). We do not perceive in the present case the type of "needless encouragement of guilty pleas' to the degree referred to in Jackson. Had defendant waived his right to a jury trial and pleaded non vult, he would still have been exposed to a life sentence, albeit within the discretion of the judge. N.J.S.A. 2A:113-3. We, therefore, determine that a remand and resentencing is not justified.
*307 Lastly, defendant contends that there was error in the court's charge on "flight." We have carefully examined the record, and in particular the charge, and find this contention to be without merit.
Affirmed.
NOTES
[1] Jackson held that the Federal Kidnapping Act, 18 U.S.C.A. § 1201, making kidnapping punishable by death if the jury so recommended, while eliminating the death penalty if the defendant pleaded guilty or waived his right to a jury, placed an impermissible burden on the exercise of both Fifth and Sixth Amendment rights. As a consequence, State v. Funicello, supra, was remanded to the New Jersey Supreme Court which, in turn, eliminated the death penalty from our murder statutes but ruled that all pleas to an indictment for murder should continue to be governed by N.J.S.A. 2A:113-3. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262854/ | 84 Cal.Rptr.2d 73 (1999)
71 Cal.App.4th 618
Felipe ESTRADA, Plaintiff and Appellant,
v.
Guadalupe RAMIREZ, Defendant and Respondent.
No. B125812.
Court of Appeal, Second District, Division Four.
April 21, 1999.
As Modified May 4, 1999.
Bander Law Firm, Joel R. Bander and Robert Asa Crook, Los Angeles, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
HASTINGS, J.
This is an appeal from a superior court order imposing discovery sanctions against appellant Felipe Estrada (appellant) and his attorney, Joel R. Bander (Bander). After the sanctions had been ordered, the matter was transferred to the municipal court, where it was ultimately resolved. Despite the fact that final resolution of this matter occurred in the municipal court, appellant lodged this appeal in the Court of Appeal. We conclude that jurisdiction over the appeal properly resides with the appellate division of the superior court and we dismiss.
STATEMENT OF THE CASE
This appeal is being processed pursuant to California Rules of Court, rule 17(b), meaning that respondent has failed to file a brief after notice of default. Upon failure of respondent to file a brief after a 17(b) notice has been mailed, "the court may accept as true the statement of facts in the appellant's opening brief and, unless the appellant requests oral argument, may submit the case for decision on the record and on the appellant's opening brief." (Cal. Rules of Court, rule 17(b); County of Lake v. Antoni (1993) 18 Cal.App.4th 1102,. 1104, 22 Cal. Rptr.2d 804.)[1]
On May 8, 1997, a superior court judge heard three motions that sought to compel appellant to respond to three separate discovery requests. Each motion sought sanctions against appellant and Bander. The superior court judge granted the motions over appellant's opposition and awarded sanctions in the aggregate of $2,214 against appellant and Bander.
Appellant's brief advises us that the matter was "removed to the Los Angeles Municipal Court and Judgment was entered by the Municipal Court upon the entire action...." Appellant offers in support of this statement an uncertified copy of an order of dismissal from the municipal court dated September 4, 1998. The brief states: "Appellant filed Notices of Appeal for appeals to be heard either in the Court of Appeal or the Appellate Division of the Superior Court. The Appellate Division of the Superior Court declined to hear this matter insofar as the sanctions order which is being appealed was made by [a] Superior Court Judge [] prior to the transfer to the Municipal Court." No documents in the appendix support these statements. Rather, a declaration containing this exact language by Robert Asa Crook, counsel *75 for appellant, is appended to the opening brief.[2]
DISCUSSION
It is undisputed that this matter originally resided within the superior court, that a superior court judge issued the subject order, and that the matter was transferred to municipal court and dismissed. The question to be resolved is what forum has jurisdiction to review the appeal.
We begin with Code of Civil Procedure section 396 which, as pertinent, states: "If an action or proceeding is commenced in a court that lacks jurisdiction of the subject matter thereof, as determined by the complaint or petition, if there is a court of this state that has subject matter jurisdiction, the action or proceeding shall not be dismissed ... but shall, on the application of either party, or on the court's own motion, be transferred to a court having jurisdiction of the subject matter that may be agreed upon by the parties, or, if they do not agree, to a court having subject matter jurisdiction that is designated by law as a proper court for the trial or determination thereof, and it shall thereupon be entered and prosecuted in the court to which it is transferred as if it had been commenced therein, all prior proceedings being saved." (Italics added; all further statutory citations are to sections of this code unless otherwise indicated.)
The foregoing italicized language is clear. We are to treat the case, and all prior orders issued, as if the matter had originally been filed in the municipal court. Because municipal courts are courts of limited jurisdiction, appeals from municipal court judgments are to be heard by the appellate division of the superior court. (Sections 85, 86 and 904.2.)
Review of a municipal court judgment by the Court of Appeal is discretionary and is limited to situations where it "appears necessary to secure uniformity of decision or to settle important questions of law." (Section 911, Cal. Rules of Court, rule 62(a).) Transfer from the superior court is effected in one of two ways. First, the superior court may issue a certification that the case is appropriate for transfer, which the court of appeal may accept or deny. Second, the court of appeal may grant its own motion to transfer after review of a published opinion of the appellate division. Neither of these procedures was initiated in this case. Appellant filed a notice of appeal directly in the court of Appeal.
If the sanctions order had been in excess of $5,000, it would have been immediately appealable, and a timely notice of appeal prior to the transfer to the municipal court would have vested this court with jurisdiction. (Section 904.1, subds. (a)(12) and (b).) Because the order is less than $5,000, appellant had a choice of seeking review by means of an extraordinary writ or waiting until a final judgment was entered. (Section 904.1, subd. (b).) Appellant selected the second option.
While we reach no conclusions relating to the alleged attempt to appeal to the appellate division alluded to in counsel's declaration, one of the concerns implicit, if not explicit, in appellant's brief is that the appellate division of the superior court has no jurisdiction to review an order of another department of the superior court. It is true that normally one department of a superior court cannot overturn, enjoin, or declare void an order of another department. (People v. Gonzalez (1996) 12 Cal.4th 804, 815, 50 Cal. Rptr.2d 74, 910 P.2d 1366.) However, this case does not present the normal situation.
The situation here is somewhat analogous to that presented in People v. Gonzalez, supra, 12 Cal.4th 804, 50 Cal.Rptr.2d 74, 910 P.2d 1366. There, at the request of the City Attorney for Los Angeles, a superior court judge issued an injunction prohibiting gang *76 members from engaging in certain activities. The City Prosecutor sought and obtained convictions of contempt against one of the targets of the injunction. The matter was appealed to the appellate division of the superior court, which had originally issued the injunction. The question arose whether the appellate division could entertain the issue of the validity of the original injunction. The Supreme Court answered the question in the affirmative: "The municipal court had jurisdiction to try the charge of misdemeanor contempt for willful disobedience of a superior court's order. [Citations.] A court with jurisdiction over a cause has jurisdiction to resolve all issues before it. [Citations.] The validity of the order defendant is charged with violating is such an issue, for, as we have seen, California law defines misdemeanor contempt as, among other things, disobedience of an order `lawfully issued' by a court. [Citation.] As we have also shown, California law has long established there can be no contempt of an invalid injunctive order. [Citations.] Because under settled law there can be no contempt of a void injunctive order, and because we have long recognized the propriety of collateral attacks on void orders, it seems evident that the trial court is a proper forum in which to raise the issue of the validity of the injunction." (Id. at pp. 820-821, 50 Cal.Rptr.2d 74, 910 P.2d 1366.)
While this case presents a direct attack on a sanctions order, we do not believe a different result should obtain. Section 396 declares that the case, including all orders entered before transfer, is to be treated as if it were originally filed in the municipal court. Thus, procedurally, the result is that the order entered by the superior court is to be treated as if entered by a municipal court judge. Because the matter was transferred to the municipal court, apparently without objection, the municipal court had jurisdiction over the matter, and the appellate division of the superior court is the appropriate forum to determine validity of the sanctions.
DISPOSITION
The appeal is dismissed.
EPSTEIN, Acting P.J., and CURRY, J., concur.
NOTES
[1] Appellant has chosen to proceed by way of appendix pursuant to California Rules of Court, rule 5.1. A majority of the documents in the appendix appear to be copies of documents from counsel's file which are neither conformed nor certified. Some of appellant's arguments rely upon these unconformed and uncertified documents. It is the burden of appellant to provide an accurate record on appeal to demonstrate error. Failure to do so precludes an adequate review and results in affirmance of the trial court's determination. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193.) Because we conclude that this matter must be dismissed, we do not reach the issue whether the record is sufficient to demonstrate error.
[2] While courts of appeal do have discretion to "take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal" (Code Civ. Proc., § 909), we decline to do so here. As previously noted, appellant has chosen to proceed by providing this court with his own appendix. It would have been a simple matter for appellant to provide conformed or certified copies of any and all documents relating to his alleged attempt to appeal this matter to the appellate department of the superior court. Absent such confirming documents, we will not accept counsel's unconfirmed conclusion why the appellate department of the superior court rejected the appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331281/ | 188 S.E.2d 452 (1972)
281 N.C. 242
In the Matter of Appeal of McLEAN TRUCKING COMPANY, Winston-Salem, North Carolina, From an Action of the Forsyth County Board of Commissioners Placing the Taxable Situs of Certain of the Appellant's Over-the-Road Vehicles in Winston-Salem Township (City of Winston-Salem), North Carolina as of January 1, 1969. (All Parties Appealed)
No. 65.
Supreme Court of North Carolina.
May 10, 1972.
*456 Hamrick, Doughton & Newton by Claude M. Hamrick and George E. Doughton, Jr., Winston-Salem, for McLean Trucking Co.
P. Eugene Price, Jr., Winston-Salem, for Forsyth County.
*457 Womble, Carlyle, Sandridge & Rice by William F. Womble and Roddey M. Ligon, Jr., Winston-Salem, for City of Winston-Salem.
LAKE, Justice.
All citations to sections of the General Statutes in this opinion relate, both as to section numbers and as to content, to the statutes in effect in 1969.
G.S. § 105-302(a) provides that, except as otherwise provided in that section, tangible personal property must be listed for taxes in the township wherein the owner has his residence, which, in the case of a corporation, is the township in which it has its principal office in the State. McLean contends that this does not apply to the property here in question because subsection (d) of this statute provides that tangible personal property "shall be listed in the township in which such property is situated, rather than in the township in which the owner resides, if the owner * * * hires or occupies a * * * place for storage * * * for use in connection with such property." This contention cannot be sustained for the reason that the tractors and trailers in question were not "situated" on the lot in Broadbay Township owned by McLean and designated by it as a place for storage of such property. In Re Pilot Freight Carriers, Inc., 263 N.C. 345, 139 S.E.2d 633. As of 1 January 1969, and for many months prior thereto, none of these vehicles was stored upon this lot or elsewhere in Broadway Township if, indeed, they ever were there. Consequently, Winston Township was the tax situs of these tractors and trailers as of 1 January 1969 and they should have been listed for 1969 taxes therein.
The vehicles having been listed improperly in Broadbay Township, the County Board of Equalization and Review had the authority to correct the listing and cause the vehicles to be listed for 1969 taxes in Winston Township. G.S. § 105-327(g)(1), (3). This it could do on its own motion or on sufficient cause shown by any person. Subsection (e) of G.S. § 105-327 provides, however, that the County Board of Equalization and Review "shall hold its first meeting not earlier than the first Monday in April and not later than the first Monday in May following the day on which the tax listing began, but it shall complete its duties on or before the third Monday following its first meeting:" except that it may continue in session for a longer period when necessary or expedient to a proper execution of its responsibilities, "but in no event shall said board sit later than July 1," except for matters not pertinent to this appeal. The time limitation thus imposed upon the County Board of Equalization and Review by this statute is mandatory. Spiers v. Davenport, 263 N.C. 56, 138 S.E.2d 762. Thus, at the time the Tax Supervisor undertook to change the listing of this property, the County Board of Equalization and Review was powerless to take such action.
G.S. § 105-328 provides that when changes made by the County Board of Equalization and Review have been reflected upon the tax records, the members of the board, or a majority thereof, "shall sign a statement at the end of the scroll or tax book to the effect that the scroll is the fixed and permanent tax list and assessment roll for the current year, subject to the provisions of this subchapter."
The County Board of Equalization and Review is identical in membership with the Board of County Commissioners. G.S. § 105-327(a). Nevertheless, after its authority has ceased, by lapse of time, the powers of the County Board of Equalization and Review do not evolve upon the Board of County Commissioners. The authority of the Board of County Commissioners thereafter to make changes in the tax records is limited to that conferred by G.S. § 105-330, the pertinent portion of which provides:
"After the board of equalization has finished its work and the changes effected by it have been given effect on the *458 tax records, the board of county commissioners may not authorize any changes to be made on said records except as follows:
"(5) To add any discovered property under the provisions of this subchapter. * * *" (Emphasis added.)
Thus, there was no authority in the Board of County Commissioners, and a fortiorari, none in the Tax Supervisor, to change the listing of McLean's vehicles from Broadbay Township to Winston Township unless these vehicles constituted "discovered property." Nothing else appearing, the Legislature is presumed to have used the words of a statute to convey their natural and ordinary meaning. Hatteras Yacht Co. v. High, Commissioner of Revenue, 265 N.C. 653, 144 S.E.2d 821; Southeastern Baptist Theological Seminary, Inc. v. Wake County, 251 N.C. 775, 112 S.E.2d 528. The ordinary meaning of "discovered" is newly found, not previously known. G.S. § 105-331 (a) makes it clear that "discovered property," as used in the Machinery Act, G.S. Chapter 105, Subchapter II, means property which has not been listed for taxation. Even if this term could be construed to include property improperly listed (see, Smith v. Dunn, 160 N.C. 174, 76 S.E. 242), we think G.S. § 105-330 makes it clear that the authority of the Board of County Commissioners to change the listing extends no further than a change as to property "discovered" after the County Board of Equalization and Review has finished its work and ceased to function. In the present instance, it is clear that the matter came to the attention of both the county and the city at some time prior to 22 April 1969. Nothing in the record indicates that the county and the city were not fully aware of the facts governing the tax situs of the property in question prior to the date on which the County Board of Equalization and review ceased to function. Thus, the tractors and trailers listed by McLean in Broadbay Township cannot be deemed "discovered property," within the meaning of G.S. § 105-330, as of the date of the attempted listing of these properties in Winston Township by the Tax Supervisor and such attempted listing was without legal effect.
The power conferred by G.S. § 105-331 (e) upon cities and towns is, by the terms of that statutory provision, no more extensive than the power conferred by that section and by G.S. § 105-330 upon the Board of County Commissioners.
Having concluded that the attempted listing of the property in Winston Township for 1969 taxes was ineffectual, we do not reach, in this case, the question of whether McLean was entitled in 1969 to have the full tax value of these vehicles apportioned so as to subject only part of it to taxation in Forsyth County.
The judgment of the superior court affirming the decision of the State Board of Assessment is, therefore, reversed, and the matter is remanded to the Superior Court of Forsyth County for the entry by it of a judgment in accordance with this opinion.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331286/ | 125 Ga. App. 753 (1972)
188 S.E.2d 905
THOMPSON
v.
FROST et al.
46989.
Court of Appeals of Georgia.
Argued March 9, 1972.
Decided March 17, 1972.
*755 Anderson & Trapnell, L. C. Anderson, Neville & Neville, William J. Neville, for appellant.
Williams, Smith, Shepherd & Gray, Sidney B. Shepherd, for appellees.
DEEN, Judge.
1. Demurrers filed prior to the effective date of the Civil Practice Act will be passed on as motions to dismiss for failure to state a claim. Banks v. Champion, 118 Ga. App. 79 (1) (162 SE2d 824); Dean v. Gainesville Stone Co., 118 Ga. App. 142 (5) (162 SE2d 858). The petition will not be dismissed unless the averments disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim. Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260). Demurrers 1, 2 and 4 are therefore equivalent to motions to dismiss under Code Ann. § 81A-112 (b) (6), and the remaining special demurrers go to matters of form no longer necessary under present pleading requirements.
2. Was there a performance of the contract as described by the plaintiffs' petition sufficient to remove it from the plea of the Statute of Frauds under Code § 20-402 (3)? The partnership sets up as its sole obligations: (1) accepting a deed to one half the land purchased by Thompson; (2) funding and building a service station thereon; (3) turning it over to the defendant to operate; (4) deeding it back after full performance. All of these things except the last were done. The defendant's obligations were to (1) make the initial purchase: (2) deed the corner lot to the plaintiffs; (3) move his business on to the lot retained by him; (4) operate the plaintiff's business: (5) pay the mortgage notes as they *756 came due; (6) execute and pay a note on any construction balance over $45,000. The first three operations were performed; the fifth and sixth were not. There was accordingly almost full compliance by the plaintiffs and a substantial compliance by the defendant. The petition stated a claim and the contract was not within the Statute of Frauds. Hudson v. Carmichael, 181 Ga. 317 (4) (181 SE 853); Mabrose v. Ambrose, 94 Ga. 655 (19 SE 980); Baxley Hardware Co. v. Morris, 165 Ga. 359 (140 SE 869); Armstrong v. Reynolds, 36 Ga. App. 594 (1) (137 SE 637).
3. The evidence showed without conflict that the plaintiffs had a franchise with Phillips 66 and that the filling station was funded by money supplied by that corporation; that the defendant did purchase the land for $13,500 supplied by the plaintiffs from this source and that he retained for his own use approximately 40% less a small triangular easement, deeding the larger corner lot to the plaintiffs. The testimony of the latter generally substantiated the facts alleged in the petition. Thompson, however, testified that the house was given to him because it had to be moved; that there was never any discussion of his paying a note in excess of $45,000; that there were oral negotiations concerning the drawing up of a contract under which Thompson would run the completed service station with Phillips 66 products procured by the plaintiffs, pay off the mortgage and receive a deed back when the mortgage was paid, but that no contract was ever executed because of confusion over the cost of the building which the plaintiffs were in the process of erecting. He also testified that the plaintiffs themselves opened the station in his absence; that he did attempt to run it for a short period of time but failed to generate business, and that Hill then agreed he "might as well take it back over," which he did; that until suit was filed the plaintiffs had never asked him $6,000 for the lot he retained but that when he informed them he was not going to purchase or run the filling station Hill wanted to know how much he was going to pay for that lot and stated it should be worth $2,000 or $3,000.
*757 Thus, the testimony as a whole would support a jury inference that there was a consummated oral contract for the purchase and division of the land which was intended to lead into a written contract for the defendant's repurchase of the filling station after the buildings were erected; that the latter contract never developed into a binding agreement because of the excess of costs over the estimates and Thompson's inability to run the station, and that there was no meeting of the minds as to the proportionate values of the respective parcels of land. The jury might therefore have found the defendant's only liability to be the smaller lot retained by him, and have placed a value on it of $3,500, which was within the range of the evidence. The rule that one may not recover on quantum merit, if the evidence so warrants, in a contract action no longer obtains. Code Ann. § 81A-115 (b) provides: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment ... may be made ... even after judgment; but failure so to amend does not affect the result of the trial of these issues." Under the identical Federal counterpart to this rule it has frequently been held that amendments may be filed to conform to the evidence even though they technically change the theory of the cause of action, and that in the absence of amendment, where no objection is interposed, the pleading will be considered to have been amended so as to uphold the verdict. Montgomery v. Moreland, 205 F2d 865; Nester v. Western Union Tel. Co., 25 FSupp. 478; Matarese v. Moore-McCormack Lines, Inc., 158 F2d 631; Fireside Marshmallow Co. v. Frank Quinlan Construction Co., 199 F2d 511. Hamill v. Maryland Cas. Co., 209 F2d 338, 340 held specifically that the plaintiff may recover upon any theory legally sustainable under the established facts, regardless of the demand in the pleadings.
The plaintiffs' failure to prove that the oral contract on which they declared included anything more than procurement of the land and an agreement to work toward an *758 agreement under which the defendant would repurchase the corner lot with improvements, at an unspecified price, does not preclude them from recovering a reasonable value for land paid for by them and retained by the defendant.
Judgment affirmed. Jordan, P. J., and Clark, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331311/ | 215 Ga. 656 (1960)
113 S.E.2d 100
ADAMS et al.
v.
RAY et al.
20680.
Supreme Court of Georgia.
Argued October 13 and 14, 1959.
Decided January 8, 1960.
Rehearing Denied February 11, 1960.
*657 Bloch, Hall, Groover & Hawkins, Moise, Post & Gardner, Irving K. Kaler, for plaintiffs in error.
Eugene Cook, Attorney-General, G. Hughel Harrison, Assistant Attorney-General, contra.
WYATT, Presiding Justice.
1. The petition in this case attempts to attack an act of the General Assembly as being unconstitutional by designating the law under attack as "The Structural Pest Control Act (Ga. Laws 1955, p. 564) as amended." "Ground 4 of the demurrer complains that the act and amendments thereto under which the petition is brought are unconstitutional, in that the same are in violation of the provisions of article 1, section 1, and article 2, section 1, and article 3, section 1, of the Constitution of the United States, and the 5th Amendment to said Constitution, and further violate article 4, section 2, and the 7th Amendment to said Constitution of the United States."
"In order to raise a question as to the constitutionality of a `law' (Code, Ann. Supp., § 2-3704), the statute which the party challenges, and the provision of the Constitution alleged to have been violated, must both be clearly specified, and it must also be shown wherein the statute violates such constitutional provision. Abel v. State, 190 Ga. 651 (10 S. E. 2d, 198); Dade County v. State of Georgia, 201 Ga. 241, 245 (2b) (39 S. E. 2d, 473); Price v. State, 202 Ga. 205 (1) (42 S. E. 2d, 728)." Krasner v. Rutledge, 204 Ga. 380, 382 (49 S. E. 2d 864).
"In order to raise a question as to the constitutionality of a `law' (Code, § 2-3005), the statute which the party challenges, and the provision of the constitution alleged to have been violated, must both be clearly specified, and it must also be shown wherein the statute violates such constitutional provision. . . Since a statute is presumed to be valid and constitutional until the contrary appears, and can not be lawfully set aside by the courts unless the alleged conflict with the constitution is plain and palpable, the burden is upon any party who assails it to present his attack in clear and definite terms, in order to call forth judicial action concerning it. In so grave or important a matter as declaring invalid an act of a co-ordinate department of government, the courts will not act upon vague and uncertain *658 charges, and should decline to do so unless and until a clear and specific contention or question is presented for determination." Abel v. State, 190 Ga. 651, 653 (10 S. E. 2d 198).
"In order to raise a question as to the constitutionality of a `law,' at least three things must always be shown: (1) The statute or part of a statute which the party would challenge must be stated, or pointed out with fair precision; (2) the provision of the Constitution which it is claimed has been violated must be clearly designated; and (3) It must be shown wherein the statute violated such constitutional provision. . . Nothing less would comport with the requirement of good pleading, to the effect that a party shall plainly, fully, and distinctly set forth his cause of action, legal or equitable." Dade County v. State of Georgia, 201 Ga. 241, 245 (39 S. E. 2d 473).
"If we were at liberty to consult our personal inclinations, we might find ourselves endeavoring to oblige, by deciding all of the questions referred to in the petition and discussed in the briefs. Also, it may be desirable, in the public interest, to have all of these questions, or such of them as may remain unsettled, finally and expeditiously determined, and in neither brief do we find any suggestion that we may not now determine them. For reasons, however, that are deemed compelling, we are unable to treat the case as counsel have treated it. We refer to certain well-established principles which must be considered in dealing with attacks upon the constitutionality of statutes, and with other matters that are here involved.
"It is a grave matter for this court to set aside an act of the co-ordinate legislative department, and vague and indefinite attacks cannot be considered. Savannah, Florida & Western Ry. Co. v. Hardin, 110 Ga. 433, 437 (35 S. E. 681). In order to raise a question as to the constitutionality of a `law' (Code, § 2-3005), at least three things must always be shown: (1) the statute or part of a statute which the party would challenge must be stated, or pointed out with fair precision; (2) the provision of the constitution which it is claimed has been violated must also be clearly designated; and (3) it must be shown wherein the statute violates such constitutional provision. . . Nothing less would comport with the requirement of good pleading, to the effect *659 that a party shall plainly, fully and distinctly set forth his cause of action, legal or equitable. Code, § 81-101. While the petition here may have met the second and third requirements above mentioned, none of the attacks were sufficient to meet the first requirement." Stegall v. Southwest Georgia Regional Housing Authority, 197 Ga. 571, 582 (30 S. E. 2d 196).
The rule of law stated in the above-quoted cases has been followed in many other decisions of this court which could be cited. We deem the above to be sufficient. In the instant case, the petition attacks the law of 1955 "as amended." When was it amended? Where was it amended? How was it amended? The petition does not attempt to provide any of this information. Certainly, an act of the legislature can be amended only by an act of the legislature. The petition shows that the act under consideration has at some time been amended in some way, and there is no attack upon any amendment that will meet the requirements of the decisions.
The attempt to attack the 1955 act must fail since the petition shows that the act is not now the law because it has at some time been amended in some way. Certainly this does not meet the requirement that, in order to raise properly a constitutional question, "the statute or part of a statute which the party would challenge must be stated, or pointed out with fair precision."
The attempt to quote certain provisions of the law under attack must fail for the same reasons. There is no way to tell from the allegations of the petition whether or not the quoted portions are from the 1955 act or from some amendatory legislation. Certain of the quoted provisions do not appear at all in the 1955 act, supra. The rule under consideration requires that the attack upon a statute be perfect within itself. In other words, the attack must be such as to point out definitely the act or portion of the act under attack. This the petition does not do.
It is contended that this court is required to take judicial notice of the acts of the General Assembly. This, as a general proposition, is true. But when an attack is made upon an act as being unconstitutional, no such rule applies. The court in that instance is permitted to look only at what is plainly and specifically alleged in the petition. If this were not true, all that *660 would be necessary in any case would be simply to say that an act of the General Assembly is unconstitutional, and it would then be the duty of the court to examine the law and determine that question. Surely, no such rule would ever be permitted in determining the important question of the constitutionality of a law enacted by the General Assembly. This court has repeatedly held that an attack upon a section of the annotated Code which has been incorporated in the Code since the adoption of the Code of 1933 is not an attack upon the constitutionality of any law. Certainly, if the rule of judicial notice is to be applied in determining the sufficiency of an attack upon the constitutionality of a law, this court could very easily determine the law sought to be attacked by referring to the annotated Code section. This court has consistently refused to do so. We therefore hold that the attack upon "The Structural Pest Control Act (Ga. Laws 1955, p. 564) as amended" is insufficient to raise any constitutional question as to any act of the General Assembly.
2. It is contended that paragraphs 19 and 20 of the petition attack certain regulations of the commission upon the ground that the Structural Pest Control Act does not authorize the regulations. Taking into consideration all that is alleged in these paragraphs, it is doubtful that this question is raised, outside of the constitutional question. However, giving the pleader the benefit of the doubt, we will pass upon that question.
Since we have already ruled that no constitutional question is properly raised, we simply have the naked question of whether or not the act authorizes the adoption of the regulations in question. Section 6 of the act of 1957 (Ga. L. 1957, p. 299, 303), amending section 11 of the 1955 act, supra, provides: "Section 11. (a) A license or registration may be suspended or revoked by the majority vote of the commission, after notice and hearing, for any violation of this Act or any rule or regulation promulgated hereunder." Section 6 of the 1955 act, supra, provides: "The commission is hereby authorized and required to: a. Make such reasonable rules and regulations as may be necessary to protect the interest, health and safety of the public and to insure the efficiency of operators to carry out the provisions of this Act. Such rules and regulations shall not be effective until a public *661 hearing shall have been granted and notification of such hearings have been made to all licensees." Under the authority of the acts of the General Assembly, the Structural Pest Control Commission promulgated the following regulation: "Misleading advertising in any form is prohibited." A mere reading of the quotations will disclose beyond doubt that the commission, under the plain provisions of the acts, had authority to promulgate this regulation.
3. From what has been said above, it follows that the judgment complained of was not error for any reason assigned.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331184/ | 125 Ga. App. 658 (1972)
188 S.E.2d 805
M. R. THOMASON & ASSOCIATES, INC.
v.
WILSON et al. (three cases).
46615, 46616, 46617.
Court of Appeals of Georgia.
Argued October 4, 1971.
Decided February 15, 1972.
Rehearing Denied March 7, 1972.
*663 Mundy, Gammage & Cummings, William W. Mundy, for appellant.
Matthews, Walton, Smith, Shaw & Maddox, James D. Maddox, for appellees.
PANNELL, Judge.
These cases are before this court on appeals from the denial of defendant-appellant's motions for summary judgment. The plaintiff-appellees in each of the cases filed complaint for damages arising out of the same alleged incident against Ronald S. Chappell, hereinafter referred to as Chappell; Ledbetter Brothers, hereinafter referred to as Ledbetter; and M. R. Thomason & *659 Associates, Inc., hereinafter referred to as Thomason, as joint defendants, alleging that Chappell, as agent of the other defendants, negligently drove or caused to be driven a 621 T Pan Caterpillar across a named public highway into an automobile driven by one of the plaintiffs, resulting in the alleged, injuries and damages. Ledbetter and Thomason filed answers denying that Chappell was their employee or agent and asserted crossclaims against each other for any sums that might be recovered against them in the actions. The defendant Thomason also filed in each case a motion for a more definite statement relating to certain matters and a motion to dismiss for failure to state a claim, which motions were overruled by the trial judge. Thomason, subsequently, in each case filed a motion for summary judgment, attaching depositions. Certain contract documents showing that Ledbetter was a general contractor on the building of a public highway, and Thomason was a subcontractor, doing what is called "blue-topping" were presented. This contract was amended by which Ledbetter agreed "to assist Thomason forces" in blue-topping the roadway under the conditions that Thomason agrees to pay Ledbetter 85% of the 1969 AED monthly rental rates on all equipment assigned to the blue-topping operation, and will pay all labor, overtime, payroll tax, insurance, etc., plus 15% and to pay for all minor repairs; and furnish all grease and fuel, and service the equipment used in Blue-Topping operation. The actual ministerial payment of the salaries was done by Ledbetter, and the defendant Chappell was primarily an employee of Ledbetter, and the equipment operated by Chappell was Ledbetter's. It was during this operation that the collision occurred. The contract between Ledbetter and Thomason contained other provisions referred to in Headnote 5 of this opinion.
The hearing was had on the motions for summary judgment and briefs filed with the trial judge for his consideration, after which all the original complaints were *660 amended alleging specific grounds of negligence relating to Thomason and Ledbetter separately, which in addition to the negligence of Chappell in operating the vehicle as their agent alleged negligence on the following grounds: "(b) failing to provide signs, signals, flagman, or other such warning to warn passing traffic on the Peeples Valley Road of the danger at the point of collision" and "(c) failing to keep a flagman at the point of collision to warn traffic on the Peeples Valley Road of the dangers caused by construction of a new highway at that point" and "(d) failing to see plaintiff as he approached" and "(e) failing to keep a proper lookout as the driver moved said equipment across the Peeples Valley Road." Subsequently, Thomason filed what it termed a renewal of its motion for summary judgment or in the alternative a motion to strike certain allegations of negligence in the amended petition.
The order of the trial judge denying Thomason's motion for summary judgment reads as follows: "The motion of M. R. Thomason and Associates, Inc. for summary judgment coming on regularly to be heard, and after hearing and submission of briefs by counsel for both of the named defendants, upon consideration thereof and after a careful and painstaking review of the pleadings, depositions and affidavits submitted, the court is of the opinion that an issue of fact results therefrom which would require a determination by a jury." Upon a certificate authorizing review, the defendant Thomason appeals to this court. Held:
1. The complaints were amply sufficient to set forth a claim and the trial court did not err in overruling the motion to dismiss on that ground.
2. The motion for a more definite statement overruled by the trial judge was properly overruled inasmuch as the motion, even if considered a special demurrer under the old practice, would have been properly overruled.
3. It nowhere appears from the record that the renewal of the motions for summary judgment "or in the alternative *661 the motion to strike" certain specific allegations of negligence contained in the amendment to the petition were ever presented to the trial judge for a decision; nor, as contended for by the appellant, can we so construe the orders entered as passing upon the motion to strike, and refusing to grant the same. Accordingly, the enumeration of error that the trial court erred "in failing to grant" the motion to strike is not supported by the record, and no question for decision by this court is presented thereby. Palmer v. Stevens, 115 Ga. App. 398 (8) (154 SE2d 803); West v. State, 120 Ga. App. 390 (3) (170 SE2d 698).
4. The motions for summary judgment, originally and as renewed, were general in their terms, making no particular reference to the main action or to the cross action. However, since appellant in its reply brief, in support of its contention that Ledbetter and Chappell "have no right or basis for opposing the grant of a summary judgment for appellant," for the reason that "the real question is whether the motion for summary judgment pierces the allegations of the plaintiff's complaints, and leaves no issue of fact for the determination of the jury as between the plaintiffs and the appellant" we will limit our rulings accordingly, and construe the motion as being directed solely to the original complaints.
5. The contract between the general contractor, Ledbetter, and the subcontractor, Thomason, provides that Thomason will "furnish and maintain all signs for the duration of the project" and "assumes all responsibility for carrying out the `sequence of operations and traffic control,' as set forth in" the proposal, which sequence of operations and traffic control provides in part "the contractor will provide complete protection to the traveling public and shall assume all responsibility and liabilities for safety of the traveling public..." Such a contract inures to the benefit of the public and the plaintiffs in the actions here are members of that public. See State Constr. Co. v. Johnson, 88 Ga. App. 651 (77 SE2d 240). See also, Smith v. Ledbetter Bros., 111 Ga. App. 238, 240 (141 SE2d 322) *662 where this court said: "A contract between the State Highway Department and a construction company by which the latter undertakes to provide for the safety of the public during the construction of the project inures to the benefit of the public, and a member of the public injured as a result of negligence in failing to do so may sue the contracting party directly. Holland v. Phillips, 94 Ga. App. 361 (94 SE2d 503). Under the same authority, such a contractor is also liable for failure to exercise ordinary care to warn persons using the road of hazards created by its own activities."
The evidence disclosed affirmatively that a warning sign, which had been placed by Thomason, north of the point of collision, was found down after the collision; and further, that there was no flagman on duty at the time of the collision. This evidence was not sufficient to disprove, as a matter of law, the allegations that Thomason was negligent as charged in specifications (b) and (c) in the petitions, nor did it prima facie disprove such allegations. The burden was upon the defendant in its motion for summary judgment to disprove some essential element of the plaintiff's case. Southern Bell Tel. &c. Co. v. Beaver, 120 Ga. App. 420 (2-4) (170 SE2d 737); Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90 (3) (176 SE2d 487); Werbin & Tenenbaum v. Heard, 121 Ga. App. 147 (2, 3) (173 SE2d 114). This the defendant failed to do, as to these essential allegations of negligence, and it was, therefore, not entitled to a summary judgment. This is true, whether or not the operator of the equipment which collided with the plaintiff's automobile was an employee of Thomason. We accordingly affirm the trial judge in refusing the grant of the summary judgment of the defendant Thomason in each case.
Judgments affirmed. Bell, C. J., and Deen, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331188/ | 650 S.E.2d 754 (2007)
MONTGOMERY
v.
MONTGOMERY.
No. A07A0881.
Court of Appeals of Georgia.
August 1, 2007.
*755 Mallory & Trice, Truitt A. Mallory, Thomaston, for appellant.
Richard H. Bishoff, Thomaston, for appellee.
JOHNSON, Presiding Judge.
Following her husband's death, Betty R. Montgomery petitioned the Upson County Probate Court for year's support. The deceased's son, Howard B. Montgomery, filed a caveat. After the probate court awarded Betty Montgomery half interest in the marital home and an automobile, Howard Montgomery appealed to the superior court. The trial court awarded Betty Montgomery the automobile, her personal property, and $14,000, and ordered that a judgment lien be placed against the residence, among other things. On appeal, Betty Montgomery contends that the trial court erred when it denied her demand for a jury trial. We agree and reverse.
Howard Montgomery filed his notice of appeal to the superior court on June 7, 2006. Betty Montgomery demanded a jury trial on August 21, 2006, which the trial court denied because the demand was made more than 30 days after the filing of the appeal and was therefore untimely in light of OCGA § 5-3-30.
Before July 1, 1998, OCGA § 5-3-30 provided that
[a]ll appeals to the superior court or state court shall be tried by a jury at the first term after the appeal has been entered unless good cause is shown for continuance; provided, however, that trial by jury may be waived by the consent of both parties to trial by the court without a jury as provided in Code Section 9-11-39.
Effective July 1, 1998, the foregoing provision was struck and amended to provide:
Upon the filing of an appeal from magistrate court to superior court or state court, the appeal shall be placed upon the court's next calendar for nonjury trial. Such appeals from the magistrate court to superior court or state court shall be tried by the superior court or state court without a jury unless either party files a demand for a jury trial within 30 days of the filing of the appeal or the court orders a jury trial.[1]
The trial court concluded that OCGA § 5-3-30(a) applied to appeals from the probate court notwithstanding that the statute only refers to appeals from the magistrate court. But it is a venerable principle of statutory construction that the express mention of one thing implies the exclusion of another.[2] And the magistrate courts are separate and distinct from the probate courts.[3] Further, "[a]s long as the language is clear and does not lead to an unreasonable or absurd result, it is the sole evidence of the ultimate legislative intent."[4] With these principles in mind, we conclude that OCGA § 5-3-30(a) simply means what it says, and it says nothing about appeals from the probate courts to the superior courts.
*756 Davis v. Hawkins,[5] relied upon by the trial court, does not hold otherwise. The appeal from the probate court to the superior court in that case was taken before the effective date of revised OCGA § 5-3-30, and there were no issues for a jury to decide.[6] In Davis, we refer to the amendment to OCGA § 5-3-30 in a footnote, but note that "appeals from magistrate court to superior court filed after July 1, 1998, are to be tried without a jury unless either party files a demand for a jury trial within 30 days."[7] If it can be inferred from Davis that appeals from the probate court to the superior court on or after July 1, 1998 are governed by OCGA § 5-3-30 in the same manner as appeals from the magistrate court to the superior court or state court, the inference is dicta.[8]
Howard Montgomery argues that if the legislature did not intend to extend revised OCGA § 5-3-30 to probate courts it must have intended to deny a trial by jury in all appeals from the probate courts. We disagree.
"We construe statutes relating to the same subject matter together, and harmonize them wherever possible, so as to ascertain the legislative intendment and give effect thereto."[9] The General Assembly has created two tiers of probate courts.[10] For purposes of OCGA § 15-9-120, "probate court" refers to a probate court of a county having a population of more than 96,000 persons according to the United States decennial census of 1990 or thereafter.[11] A judgment in a civil case in such a probate court is appealable to the Supreme Court or Court of Appeals, depending on the subject matter.[12] In other probate courts, such as the case here, appeals are made to the superior court.[13] The appeal is de novo unless otherwise provided by law, and "all competent evidence shall be admissible on the trial thereof."[14]
For purposes of probate courts in which judgments in civil cases are appealable to the Supreme Court or the Court of Appeals, a "civil case" is defined to include those civil matters "[w]hich, if not for this article and Code Section 5-6-33, could be appealed to superior court for a de novo investigation with the right to a jury trial under Code Sections 5-3-2 and 5-3-29."[15] Further, OCGA § 15-9-121(c) grants the right to a jury trial in probate court under certain conditions, but that "[i]f the civil case could not be appealed to a jury in superior court from a probate court not meeting the definition provided in paragraph (2) of Code Section 15-9-120, the right to a jury trial shall not be available in a probate court which meets such definition."[16]
Given the foregoing, it is apparent that the General Assembly did not intend that by repealing former OCGA § 5-3-30 appeals to the superior court from the probate court would no longer be tried by a jury. For one thing, no case would then be a "civil case" for purposes of OCGA § 15-9-120(1)(C) because no case would otherwise be appealable to the superior court "with the right to a jury trial." *757 Further, it appears from OCGA § 15-9-120(1)(C) that the right to a jury trial in an appeal from the probate court was considered by the General Assembly to be inherent in the general right of de novo appeal to the superior court provided by OCGA §§ 5-3-2 and 5-3-29.[17]
Given that the legislature chose to impose specific conditions on the right to a jury trial in appeals from the magistrate court, but not the probate court, and that the legislature could not have intended to deny a jury trial in appeals from the probate court, we conclude that in repealing former OCGA § 5-3-30 the legislature intended that appeals from the probate court to the superior court would continue without special limitations on the right to a jury trial. Accordingly, the longstanding rule remains that de novo appeals to the superior court from the probate court are to be tried by jury unless the right to a jury trial is waived.[18]
Howard Montgomery argues that Betty Montgomery implicitly waived any right to a jury trial by her conduct. "One may waive the right to trial by jury by conduct indicative of the fact that the right is not asserted."[19] However, Betty Montgomery specifically requested a jury trial, and obtained a written order denying that request.[20] It follows that she is entitled to a jury trial, and that the trial court was without authority to enter its final order following a bench trial.[21] The remaining enumerations of error are therefore moot.
Judgment reversed.
PHIPPS and MIKELL, JJ., concur.
NOTES
[1] (Emphasis supplied.) OCGA § 5-3-30(a). OCGA § 5-3-30(b) was later added, but also concerns appeals from the magistrate courts in particular.
[2] Alexander Properties Group v. Doe, 280 Ga. 306, 309(1), 626 S.E.2d 497 (2006).
[3] See OCGA §§ 15-9-1 et seq.; 15-10-1 et seq.
[4] (Punctuation and footnote omitted.) Ray v. Barber, 273 Ga. 856(1), 548 S.E.2d 283 (2001).
[5] 238 Ga.App. 749, 521 S.E.2d 10 (1999).
[6] Id. at 752(4), 521 S.E.2d 10.
[7] Id. at n. 6.
[8] Mary Radford, Redfearn, Wills and Administration in Georgia (6th ed.2000) takes the position (relying on OCGA § 5-3-30) that appeals to the superior court from the probate court will be tried without a jury unless either party files a demand for a jury trial within 30 days of the filing of the appeal, which is consistent with the trial court's order. Id. at § 6-3, p. 137. In the 2007 pocket part, however, she notes that amended OCGA § 5-3-30 only speaks to appeals from the magistrate court to the superior court or state court, and that "[i]t is unclear what effect this amendment has on appeals from a probate court."
[9] (Punctuation and footnote omitted.) In the Interest of J.V., 282 Ga.App. 319, 321, 638 S.E.2d 757 (2006).
[10] See OCGA §§15-9-120 through 15-9-126; Radford, Redfearn, Wills and Administration in Georgia (6th ed.2000) § 6-1, p. 126.
[11] In addition, such a probate court is one in which the judge has been admitted to the practice of law for at least seven years. Id.
[12] OCGA § 15-9-123.
[13] OCGA § 5-3-2.
[14] OCGA § 5-3-29.
[15] (Emphasis supplied.) OCGA § 15-9-120(1)(C).
[16] (Emphasis supplied.)
[17] See, e.g., Davis v. Harper, 54 Ga. 180, 183 (1875) ("right of appeal [from the court of ordinary] is without restriction, so that, at his option, the defendant may always have a jury trial if he desires it").
[18] See Smith v. Smith, 165 Ga.App. 532, 534(2), 301 S.E.2d 696 (1983).
[19] (Citation and punctuation omitted.) SurgiJet, Inc. v. Hicks, 236 Ga.App. 80, 81(2), 511 S.E.2d 194 (1999).
[20] See, e.g., Camilla Cotton Oil Co. v. C.I.T. Corp., 143 Ga.App. 840, 842(2), 240 S.E.2d 212 (1977) (participation in bench trial did not waive request for a jury trial where appellant obtained a ruling denying the request).
[21] See Smith, 165 Ga.App. at 534(2), 301 S.E.2d 696 (in de novo appeal from probate to superior court, trial court did not have authority to enter final judgment because jury trial was not waived by the parties). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1864144/ | 560 So.2d 20 (1990)
STATE of Louisiana
v.
Clarence J. JACK.
No. 90-KO-0113.
Supreme Court of Louisiana.
April 20, 1990.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331199/ | 125 Ga. App. 707 (1972)
188 S.E.2d 908
DEMPSEY et al.
v.
ELLINGTON.
46890.
Court of Appeals of Georgia.
Submitted February 1, 1972.
Decided February 23, 1972.
Rehearing Denied March 14, 1972.
A. R. Barksdale, for appellants.
Hoyt L. Bradford, for appellee.
HALL, Presiding Judge.
Defendant-appellants are the administrators of an estate which owns certain real property. The land was sold to the other defendants in this action. The lessee at the time of the sale is the plaintiff here. Following some litigation between the administrators and the lessee only, the parties agreed to a consent judgment under which the lease was canceled and the administrators agreed to transfer and convey to the plaintiff the cotton allotment (and right to receive payments) for the next five years.
The administrators signed the transfer form provided by the government but the buyers refused to consent to it and filed suit to enjoin the transfer. (That suit was determined adversely to the buyers who still refuse their consent). The government has also refused to make the transfer pending clarification of the legal claims. The plaintiff brought this action against the buyers and the administrators, alleging the facts outlined above and alleging that the allotment has a cash value of $5,000. The prayer for relief contained these relevant demands: "That the defendants named in this complaint be ordered by the court to perform every act necessary to accomplish the provisions of the consent judgment"; "For relief *708 in the alternative . . . to set aside said order and restore the lease" (this prayer was later struck by amendment); and "For such other and further relief as to the court appears necessary to do complete justice between the parties."
The buyers answered and contested jurisdiction. The administrators did not appear at all. The case was placed on the default calendar and neither set of defendants was present when the case was tried. A jury returned a verdict for plaintiff for $5,000.
1. Plaintiff's motion to dismiss the appeal is denied. The appellants may elect to attack the judgment in the court below or to appeal directly. Code Ann. § 6-702.
2. The administrators appeal from the default judgment, contending that the grant of money damages is different in kind from the relief demanded in the complaint and is therefore error. Code Ann. § 81A-154 (c) states, "A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment." Plaintiff contends that the general prayer ("for such other and further relief, etc."), combined with the allegation of cash value, was sufficient to authorize the judgment for money damages.
We can find no Georgia case construing the "different in kind" test in a default judgment. However, the rule in other jurisdictions seems to require greater specificity than the pleadings here. "Plaintiff's relief in a judgment by default is strictly limited in nature and degree to that specifically demanded in the complaint, even though the allegations or the proofs, or both, would justify, other, additional, or greater relief, as under a prayer for general relief." 49 CJS 378, Judgments, § 214b (2). See also 47 AmJur2d 199, Judgments, § 1176; 6 Moore's Federal Practice 1205, § 54.61 (The prayer must be sufficiently specific that the court can follow the mandate of the rule.)
The reason for this rule was well stated in a Minnesota case. "A defendant should have the right to submit without contest to a judgment specifically demanded by the *709 plaintiff in his complaint; and, where he so submits, the defendant should not be under an obligation to follow the proceedings to see to it that such a judgment is taken against him, but should be protected in the assumption that only such a judgment can and will be granted." Duenow v. Lindeman, 223 Minn. 505, 512 (27 NW2d 421).
This rationale is particularly appropriate under the facts of this case. The administrators had already done what they had agreed to do under the consent judgment. It was the other set of defendants who were holding out. This action appeared to be one to compel the buyer's performance which the administrators would have no reason to contest. We cannot say they would not have answered if it had appeared to be an action for money damages. The court erred in entering a judgment of this kind.
Judgment reversed. Pannell and Quillian, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331241/ | 188 S.E.2d 336 (1972)
281 N.C. 261
STATE of North Carolina
v.
Lionel ANDERSON.
No. 13.
Supreme Court of North Carolina.
May 10, 1972.
*339 Clarence W. Griffin, Williamston, for defendant appellant.
Robert Morgan, Atty. Gen., and Ralph Moody, Raleigh, Sp. Counsel, for the State of North Carolina.
HUSKINS, Justice:
Defendant assigns as error that six jurors were excused for cause when each stated on voir dire examination that he would not vote in favor of the death penalty under any circumstances no matter how aggravated the case and no matter what the facts may be. We said in State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971), that "a venireman should be willing to consider all the penalties provided by State law and he should not be irreparably committed before the trial has begun to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceeding." This accords with the holding in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). The six veniremen in question were properly excused because they were committed to vote against the death penalty before the trial commenced. This assignment is overruled.
Defendant's second assignment is addressed to the consolidation of the two murder cases for trial. This assignment obviously has no merit. When a defendant is charged with crimes of the same class and the offenses are not so separate in time or place and not so distinct in circumstances as to render a consolidation unjust and prejudicial, consolidation is authorized in the discretion of the court by G.S. § 15-152, State v. White, 256 N.C. 244, 123 S.E.2d 483 (1962); State v. Johnson, 280 N.C. 700, 187 S.E.2d 98 (1972).
Appellant's brief sets out no reason or argument and cites no authority in support of defendant's third assignment of error. The assignment is therefore deemed abandoned under Rule 28, Rules of Practice in the Supreme Court. State v. Strickland, 254 N.C. 658, 119 S.E.2d 781 (1961).
The State furnished defense counsel a list of State's witnesses prior to selection of the jury. However, the witness Alton Daniels was unknown to the solicitor and his name was not on the list. The solicitor learned during the trial that Alton Daniels was an eyewitness to the shooting. He informed the court of these facts and was allowed to examine Daniels as a witness for the State over defendant's objection. This constitutes defendant's fourth assignment of error.
The record reveals that before this witness was allowed to testify the court interrogated the jurors and each juror stated that he did not know Alton Daniels by sight or by name. The court found that the name of the witness was not available to the State at the time the jury was selected and that defendant had suffered no *340 prejudice from the fact that the name of this witness was not furnished prior to selection of the jury. The court thereupon in its discretion permitted the witness to testify, and we perceive no error therein. It was a discretionary matter not reviewable on appeal absent abuse of discretion, and no abuse of discretion is shown.
Defendant's fifth assignment of error is based on denial of his motion for nonsuit at the close of the State's evidence. His sixth assignment of error is based on denial of his motion for a directed verdict of not guilty at the conclusion of all the evidence. These assignments are formal and are overruled without discussion.
After the State and defendant had rested their case and after all arguments to the jury had been made, the court in its discretion allowed the State to recall two witnesses who had previously been examined and elicit from them additional evidence. Defendant objected to this procedure, and this constitutes his seventh assignment of error.
It is discretionary with the trial court to permit the introduction of additional evidence after both parties have rested and arguments have been made to the jury, but the opposing party must be given an opportunity to offer additional evidence in rebuttal. State v. Harding, 263 N.C. 799, 140 S.E.2d 244 (1965); State v. Jackson, 265 N.C. 558, 144 S.E.2d 584 (1965). The record shows that defendant was given an opportunity to offer additional evidence in rebuttal but declined to do so. Furthermore, it is noted that the additional evidence in question was inconsequential and could not have prejudiced defendant. Defendant's seventh assignment of error is overruled.
The State again rested its case, and defendant again moved for a directed verdict of not guilty. Denial of his motion constitutes his eighth assignment of error. It has no merit and is overruled without discussion.
Defendant's ninth and tenth assignments of error relate to the same legal question and will be treated jointly. By these assignments defendant challenges the constitutionality of the death sentences imposed upon him and contends that these cases against him should be remanded to the Superior Court of Martin County for imposition of a life sentence in each case. We think defendant's position is sound for the reasons set out below.
On 23 July 1971 the United States Supreme Court entered memorandum decisions in the following North Carolina cases reversing the death sentence imposed by the trial court and affirmed by this Court, to wit: Atkinson v. North Carolina, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859; Hill v. North Carolina, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860; Roseboro v. North Carolina, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860; Williams v. North Carolina, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860; Sanders v. North Carolina, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860; and Atkinson v. North Carolina, 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861. As authority for its decision in each case, that Court cited United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), and Pope v. United States, 392 U.S. 651, 88 S. Ct. 2145, 20 L. Ed. 2d 1317 (1968).
Jackson and Pope stand for the proposition that every defendant has a constitutional right to plead not guilty and that the Federal Constitution does not permit the establishment of a death penalty applicable only to those defendants who assert their constitutional right to contest their guilt before a jury. At the time Atkinson, supra, and the other five North Carolina cases arose, the death penalty in North Carolina was expressed in G.S. § 14-17 and G.S. § 15-162.1.
G.S. § 14-17 provides in pertinent part as follows: "A murder which shall be perpetrated. . . by any . . . willful, deliberate and premeditated killing, or *341 which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury."
G.S. § 15-162.1 provides in pertinent part as follows: "(a) Any person, when charged in a bill of indictment with the felony of murder in the first degree, or burglary in the first degree, or arson, or rape, when represented by counsel, whether employed by the defendant or appointed by the court under G.S. § 15-4 and G.S. § 15-5, may, after arraignment, tender in writing, signed by such person and his counsel, a plea of guilty of such crime; and the State, with the approval of the court, may accept such plea. . . . (b) In the event such plea is accepted, the tender and acceptance thereof shall have the effect of a jury verdict of guilty of the crime charged with recommendation by the jury in open court that the punishment shall be imprisonment for life in the State's prison; and thereupon, the court shall pronounce judgment that the defendant be imprisoned for life in the State's prison."
The decisions in Jackson and Pope apparently condemned as unconstitutional the language of G.S. § 15-162.1 because, with the language of that statute in effect, our death penalty applied only to those defendants who asserted their constitutional right to plead not guilty. To correct that infirmity, G.S. § 15-162.1 was repealed by Chapter 117 of the 1969 Session Laws, effective 25 March 1969. Such repeal left in effect, applicable to all alike, the provisions of G.S. § 14-17; and this Court has consistently upheld the constitutionality of that statute. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971). However, for some obscure reason, the General Assembly reenacted the provisions of G.S. § 15-162.1 by Chapter 562 of the 1971 Session Laws, effective 15 June 1971. Then, apparently to correct the error, G.S. § 15-162.1 was again repealed by enactment of Chapter 1225 of the 1971 Session Laws, effective 21 July 1971. It thus appears that from 15 June 1971 to 21 July 1971 the death penalty provisions of our statutes once again applied only to those defendants who asserted their right to plead not guilty. United States v. Jackson, supra; Pope v. United States, supra; Atkinson v. North Carolina, supra. Here, the murders were committed on 29 June 1971 while the provisions of G.S. § 15-162.1 were in effect, and therefore the death sentences in these cases are unconstitutional and cannot be carried out. Hill v. North Carolina, supra [403 U.S. 948, 29 L. Ed. 2d 860, 91 S. Ct. 2287].
Applying the constitutional principles enunciated in Jackson and Pope, and following the procedure adopted by this Court in State v. Hill, 279 N.C. 371, 183 S.E.2d 97 (1971), the judgments of the Superior Court of Martin County, insofar as they imposed the death penalty, are reversed. These cases are remanded to the Superior Court of Martin County with directions to proceed as follows:
1. The presiding judge of the Superior Court of Martin County will cause to be served on the defendant Lionel Anderson, and on his counsel of record, notice to appear during a session of said superior court at a designated time, not less than ten days from the date of the order, at which time, in open court, the defendant Lionel Anderson being present in person and being represented by his counsel, the presiding judge, based on the verdicts of guilty of murder in the first degree returned by the jury at the trial of these cases at the September 1971 Session, will pronounce judgments that the defendant Lionel Anderson be imprisoned for life in the State's prison, to be served concurrently or consecutively as the judge in his discretion may determine.
*342 2. The presiding judge of the Superior Court of Martin County will issue a writ of habeas corpus to the official having custody of the defendant Lionel Anderson to produce him in open court at the time and for the purpose of being present when the judgments imposing life imprisonment are pronounced.
Remanded for judgment.
HIGGINS and LAKE, JJ., dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331261/ | 125 Ga. App. 581 (1971)
188 S.E.2d 396
COURTENAY et al.
v.
RANDOLPH; and vice versa. GOLFLAND MOTEL, INC. et al.
v.
RANDOLPH; and vice versa.
46604, 46677, 46676, 46678.
Court of Appeals of Georgia.
Argued October 4, 1971.
Decided February 25, 1972.
Gerstein & Carter, Joe W. Gerstein, Richard F. Livingston, Jr., James H. Weeks, for Courtenay.
Neely, Freeman & Hawkins, Thomas H. Harper, Jr., for Golfland.
Holcomb & McDuff, Frank D. Holcomb, Robert McDuff, John H. Ramsaur, for appellee.
PANNELL, Judge.
In these companion cases plaintiff filed two-count complaints against the respective defendants. Count 1 alleged malicious prosecution and Count 2 false imprisonment. The trial court denied defendants's motions for summary judgment as to Count 1 and granted their motions as to Count 2. We are treating these rulings in the reverse order.
1. (Count 2). If the plaintiff was arrested under a void warrant the action is for false imprisonment and if the warrant is valid malicious prosecution is the remedy. Smith v. Embry, 103 Ga. App. 375 (3) (119 SE2d 45); Lowe v. Turner, 115 Ga. App. 503 (154 SE2d 792). Two warrants for the arrest of plaintiff were issued for defrauding an innkeeper. The affidavits both fail to state the time when the crime was committed. Plaintiff contends that this defect voids both warrants. She relies upon the cases of *582 Lowe v. Turner, supra, and Lovett v. State, 111 Ga. App. 295 (141 SE2d 595). Neither case holds that the failure to state the time of commission of the crime in the affidavit, standing alone, will cause an otherwise sufficient affidavit and warrant to be void. In Turner the affidavit failed to state the time of commission, the place of occurrence and a description of the offense. In Lovett the affidavit and warrant only charged the defendant with the offense of misdemeanor on a named date. Here the affidavits sufficiently charged the dates of commission, the places of occurrence including the county, against whom the offense was committed, and a description of the offense of defrauding an innkeeper which is enough to show a strict compliance with Code § 27-103 and 27-103.1. The failure to state the time of commission is a mere technical defect and does not void the warrant. As the warrant is valid, the plaintiff cannot successfully maintain the action for false imprisonment and the grant of the summary judgments as to Count 2 must be affirmed.
2. (Count 1). The only issue presented as to the malicious prosecution count is whether the prior criminal cases terminated in plaintiff's favor. That is an essential element of malicious prosecution. Clark v. Douglas, 6 Ga. App. 489 (65 S.E. 304). The trial court which had jurisdiction over the offenses placed the cases on the court's dead docket. Code § 24-2714 (7). Placing a criminal case on the dead docket postpones the prosecution indefinitely "but [it] may be reinstated any time at the pleasure of the court." Newman v. State, 121 Ga. App. 692, 694 (175 SE2d 144). The provisions of our law in reference to the dead docket (since the Code of 1895, § 797 PC) reads as follows: "A docket of criminal cases, to be known as the dead docket, to which cases shall be transferred at the discretion of the presiding judge, and which shall only be called at his pleasure. When a case is thus transferred, all witnesses who may have been subpoenaed therein shall be released from further attendance until resubpoenaed." *583 Prior to the Code of 1895 and back to our original Code of 1863 ( § 262 (4)), the law in reference to criminal dockets reads as follows: "A docket in which must be entered all criminal cases which have been on the criminal docket for as much as five years without any existing arrest, and which must be inspected by the court, at least once every year, that if necessary, any case may be re-transferred to the criminal docket." Placing a case upon the dead docket certainly constitutes neither a dismissal nor a termination of the prosecution in the accused's favor. A case is still pending which can be called for trial at the judge's pleasure, or upon which the accused can make a demand for trial. Newman v. State, 121 Ga. App. 692, supra. While this court in Newman v. State, in comparing the dead docket law with nolle prosequi without leave in North Carolina made the statement "with both, the prosecution is postponed indefinitely but may be reinstated any time at the pleasure of the court," no reinstatement is required under the Georgia statute relating to the dead docket. No "reinstatement" is necessary, other than a possible "reinstatement" of the cases to the active docket. There is no language whatsoever in the Code section which states that the case can be "reinstated" at the pleasure of the court, or any other language indicating that a case is terminated in favor of the defendant when it is placed upon the dead docket. Even in our practice where a nolle prosequi is entered, the case is still pending for a period of six months and terminates then because that is what the statute provides. Code § 27-601 (4). Since no reinstatement of the case is necessary before it can be called for trial, it must, as a necessity, still be pending in the court. Certainly, where a case needs no reinstatement or rebringing by new accusation or indictment, and can be brought to trial at the pleasure of the judge or upon the demand of the accused as a matter of right. (Newman v. State, 121 Ga. App. 692, supra), it cannot be said to have terminated favorably to the accused; nor can it be said the prosecution *584 has been abandoned so long as the case is pending. We find no other evidence of abandonment of the prosecution. The trial judge erred in overruling the defendant's motion for summary judgment as to Count 1 of the petition.
Judgment affirmed in part; reversed in part. Jordan, P. J., Hall, P. J., Eberhardt, Quillian and Clark, JJ., concur. Bell, C. J., Deen and Evans, JJ., concur in part and dissent in part.
EBERHARDT, Judge, concurring.
We think the majority view is correct, particularly since this type of action is not favored by the courts. "This action is strictly guarded, and the circumstances under which it may be maintained are accurately stated; it is never encouraged, except in plain cases; were it otherwise, ill consequences would ensue to the public, for no one would willingly undertake to vindicate a breach of the public law and to discharge his duty to society, with the prospect of an annoying suit staring him in the face." Ventress v. Rosser, 73 Ga. 534, 541. Accord: Henderson v. Francis, 75 Ga. 178, 181; Joiner v. Ocean Steamship Co., 86 Ga. 238, 245 (12 S.E. 361). "The action is not favored by the law, and especially is this true where the suit is based upon a criminal proceeding against the plaintiff; for public policy favors the exposure of crime, which a recovery against a prosecutor obviously tends to discourage." South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 8 (182 S.E. 61).
With this policy firmly settled in the law there should be no construction of the law or the facts to give rise to an *585 action unless it is clearly and plainly demanded. Consequently, the construction by Judge Pannell of Code § 24-2714 (7), which provides for a "dead docket" for criminal cases, the transfer of cases thereto and that when this has been done the case "shall only be called at [the judge's] pleasure," is in keeping and is correct. Certainly if, as the Code section provides, the judge may call the case for trial at his pleasure it cannot be said that it is at an end. The case is viable alive, though on the dead docket! Nor, under the fixed policy relative to these cases, can we infer an abandonment from a transfer of a case to the dead docket; if there is an inference it must be otherwise.
It should be noted that this conclusion does not deprive the plaintiff of a remedy. He may obtain a termination of the case by filing a demand for trial, after which he must be tried or the prosecution discharged. Code § 27-1901. If he had objected to placing the case on the dead docket it would have been an abuse of discretion and a deprivation of his constitutional rights to do so (Newman v. State, 121 Ga. App. 692, supra), for he could not be denied a speedy trial.
Our judgment, being but a determination of prematurity, will not become res judicata as to the merits.
I am authorized to state that Presiding Judge Hall and Judge Clark join in this concurrence.
BELL, Chief Judge, concurring in part and dissenting in part. I concur in Division 1 but I dissent from Division 2 of the majority opinion. The trial court, which had jurisdiction over the offenses, placed the cases on the court's dead docket. Code § 24-2714 (7). The time factors involved are of significance. Both warrants were issued on June 20, 1968. The orders placing the cases on the dead docket were dated July 16, 1968, and both state: "It appearing that the within defendant being in the common jail of DeKalb County and due to her property [sic] she is unable to make an appearance bond, and further in view of the fact that she has been in jail some twenty-seven (27) days it is of the opinion of the court that the ends of justice would best be met by placing said case upon the dead docket until further order *586 of the court, and it is so ordered." Plaintiff filed her complaints in June, 1970; answers were filed in July of 1970. Motions for summary judgment were filed in January, 1971, in case No. 46676 and in June, 1971, in case No. 46604. Both motions were supported by accompanying affidavits of counsel for respective defendants and state in part that a diligent search of the records of the trial court having jurisdiction of the cases reveals that the last action taken in either case was the order of July 16, 1968, placing the cases on the dead docket. Accordingly, this part of the defendant's proof shows that more than two years elapsed since the dead docketing of the cases and that no further action was taken. Merely placing a criminal case on the dead docket does not necessarily of itself show that the prosecution has or has not ended insofar as malicious prosecution purposes are concerned. Thus, the question is does the dead docketing of the criminal proceedings along with evidence of abandonment of the prosecution permit the conclusion that the case has terminated in the accused's favor authorizing the action of malicious prosecution? In Hartshorn v. Smith, 104 Ga. 235, 237 (30 S.E. 666), the Supreme Court stated: "if a criminal prosecution has been dismissed with no intention of commencing it again, or if delay has been made in commencing the prosecution again, so as to lead the accused to believe that it has been finally terminated, and if he then and at once commences his action for a malicious prosecution, he might probably maintain the same." Abandoning the prosecution before the committing magistrate amounts to a termination of the prosecution when no further action is taken. Page v. Citizens Banking Co., 111 Ga. 73 (5) (36 S.E. 418, 51 LRA 463, 78 ASR 144). In Price v. Cobb, 60 Ga. App. 59 (3 SE2d 131), a nolle prosequi was entered to an indictment and shortly thereafter an action for malicious prosecution was brought. We held that the action could not be maintained as there was neither a showing that the six months statute of limitation under Code § 27-601 (4) had run nor a showing in the petition that defendants or the solicitor general had abandoned any *587 further prosecution. The six months limitation on obtaining a new indictment where a nolle prosequi has been entered cannot apply to a proceeding which has been placed on the dead docket. Nonetheless, based upon the above authorities, dead docketing coupled with a lapse of an unreasonable length of time with no further action taken by anyone towards a view to recommencing the prosecution, would authorize the conclusion that the proceedings have been abandoned and thus a favorable termination so as to permit a malicious prosecution suit. The defendants as movants have the burden of proof on summary judgment and the opposing party is given the benefit of all favorable inferences drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442). From defendants' proof that no further action has been taken in the criminal cases in more than two years since the dead docket entries, it can at the very least be justifiably inferred that the criminal proceedings have been abandoned and consequently terminated in plaintiff's favor. The denial of the motions as to Count 1 of the complaints was proper as defendants have not sustained their burden of proof on motion for summary judgment. I would affirm.
I am authorized to state that Judges Deen and Evans concur in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331262/ | 650 S.E.2d 783 (2007)
SIMON
v.
CITY OF ATLANTA et al.
No. A07A0853.
Court of Appeals of Georgia.
August 7, 2007.
*784 Steven D. Simon, pro se.
Hall, Booth, Smith & Slover, Linda Katherine DiSantis, Sean Lamar Gill, Atlanta, for Appellee.
BARNES, Chief Judge.
Steven Simon sued the City of Atlanta and others concerning his arrest and detention in August 2001. The trial court dismissed the action as time-barred because it was not filed within the limitation period established in OCGA § 9-3-33. We find that Simon filed a proper ante litem notice, that he asserted this fact below, and that the statute of limitation did not run during the pendency of his claim before the City. We therefore reverse.
A motion to dismiss for failure to state a claim should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof, and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor.
(Footnote omitted.) McLain v. Mariner Health Care, 279 Ga.App. 410, 411(1), 631 S.E.2d 435 (2006).
So viewed, the record shows that on August 12, 2001, Simon was arrested for taking a gun from a city employee who had booted the limousine Simon was driving and throwing it on the ground. Simon told the arresting officer that he was a diabetic and needed medication. The officer refused to accept the medication from Simon's wife, placed Simon in a holding cell at Grady Hospital, and he remained there, with periodic beatings, for three days. In the medical ward, he was forcibly restrained while a catheter was inserted into his penis. Simon was then taken to the city jail, where the nurse denied his requests for insulin. After he was released from jail, Simon was transported to the St. Joseph's Hospital emergency room. The attending physician determined that had treatment been further delayed, Simon might have died.
On April 14, 2004, Simon filed suit against the City of Atlanta, a number of public officials, and others for torts including false arrest, false imprisonment, battery, and aggravated assault, resulting in damages including insulin shock, the amputation of a toe, and his wife's loss of consortium. In its answer, the City of Atlanta claimed that Simon's *785 action was time-barred under OCGA § 9-3-33, which provides that "[a]ctions for injuries to the person shall be brought within two years after the right of action accrues[.]" Noting that "there appear[s] to be no opposition filed herein," the trial court granted the City's motion to dismiss on this ground.
1. Simon's pro se brief provides no citations to the record, and nearly all of his 15 asserted errors either reallege matter from his complaint or recite law without any application to the facts. See Court of Appeals Rule 25(c)(2), (c)(3)(i) (asserted error must be supported by citation to authority and the record). "It is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record." (Citation, punctuation and footnote omitted.) Magnolia Court Apts. v. City of Atlanta, 249 Ga.App. 6, 8, 545 S.E.2d 643 (2001). Although Simon is proceeding pro se, that status does not relieve him of the obligation to comply with the substantive and procedural requirements of the law, including the rules of this court. Campbell v. McLarnon, 265 Ga.App. 87, 90(3), 593 S.E.2d 21 (2003)
In his sixth enumeration, however, Simon asserts that his action is not time-barred because he sent the City a timely ante litem notice on December 3, 2001. See OCGA § 36-33-5(b) (ante litem notice must be given to municipal corporation within six months of incident giving rise to claim).
The City erroneously states that the ante litem notice of December 3, 2001, is not included in the record. In fact, Simon identified the notice as an exhibit to the brief filed with his complaint and attached it as such. Indeed, the City itself filed a copy of the ante litem notice with its motion for a protective order. Other parts of the same filing include the City's acknowledgment of Simon's claim in a letter of December 13, 2001, documents concerning settlement negotiations, the City Council's denial of the claim at its meeting of March 3, 2003 and the City's letter of March 17, 2003 notifying Simon of the adverse result. The record also shows that Simon filed a "Response to [the City]'s Motion for Default Judgment and Dismissal" on September 17, 2004, and that this response raised the matter of the ante litem notice, including the City's receipt of it.
The stated purpose of the letter of December 3, 2001, which was prepared by counsel, was to give "Ante Litem Notice of Claim/Written Demand pursuant to OCGA § 36-33-5" concerning Simon's "Injury and Claim of Police and Custodial Brutality and Loss of Consortium" arising from the events of "August 12-18, 2001." The letter details the events at issue over three pages, and was clearly sufficient to alert the City of Simon's claim. See Washington v. City of Columbus, 136 Ga.App. 682, 691(5)(a), 222 S.E.2d 583 (1975) (substantial compliance with OCGA § 36-33-5 is all that is required).
The City points out that Simon's complaint failed to allege compliance with the ante litem requirement. Cases long predating the passage of the Civil Practice Act in 1966 suggest that this flaw can be fatal. See, e.g., Saunders v. City of Fitzgerald, 113 Ga. 619, 620, 38 S.E. 978 (1901) (where petition failed to state that ante litem notice had been given, it "set out no cause of action"). More recent authority examines the record, however, to determine whether the municipality actually received sufficient notice. See Brackett v. City of Atlanta, 149 Ga.App. 147, 148, 253 S.E.2d 786 (1979) (reversing grant of motion to dismiss where "the record does not show on its face that the ante litem notice was given more than six months after the happening of the event upon which the claim is predicated"); City of Rome v. Rigdon, 192 Ga. 742, 748, 16 S.E.2d 902 (1941) (distinguishing Saunders on the ground that it did not rule on the adequacy of any actual notice, and noting that "[i]f the question of bar had been raised . . ., the court would no doubt have held that the statute of limitations was suspended, and that the action was not barred").
Having received adequate ante litem notice, the City cannot show here that it was prejudiced by the complaint's omission of an allegation of such notice. See Washington, supra, 136 Ga.App. at 691(5)(a), 222 S.E.2d 583 (city was not prejudiced by an "improper designation" of an ante litem notice in the *786 complaint). The 15 months during which Simon's claim was pending before the City (December 2001 through March 2003) must therefore be subtracted from the 32 months between the accrual of Simon's cause of action in August 2001 and the filing of his suit in April 2004. See OCGA § 36-33-5(c), (d) (municipality shall act on claim within 30 days of its presentation, and statute of limitation is suspended during pendency of demand); City of Rome, supra, 192 Ga. at 747, 16 S.E.2d 902 (plaintiff may wait to file suit until municipality denies claim). Since the remaining period is seventeen months, or substantially less than two years, Simon's complaint is not time-barred under OCGA § 9-3-33. The trial court therefore erred when it granted the City's motion to dismiss.
2. The City also urges us to affirm the trial court's order on grounds raised but not ruled on below, including that none of the named defendants is subject to suit. We leave such matters for later proceedings. See, e.g., Carter v. Glenn, 249 Ga.App. 414, 415-417(1)-(3), 548 S.E.2d 110 (2001) (affirming grant of summary judgment where city's purchase of liability insurance did not waive immunity, and where no question of fact remained concerning city officials' actual malice in hiring and retaining a police officer who raped the plaintiff); compare Murphy v. Bajjani, 282 Ga. 197, 203-204(4), 647 S.E.2d 54 (2007) (allegations of school officials' actual malice were properly disposed of on a motion to dismiss where alleged facts amounted to only deliberate wrongdoing with reckless disregard).
3. Simon's motion designated as a "Motion in Emergencies" in which he appears to request that this Court expedite the rendering of a decision in his appeal is dismissed as Moot.
Judgment reversed.
SMITH, P.J., and MILLER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331447/ | 113 S.E.2d 723 (1960)
252 N.C. 339
FRANKLIN NATIONAL BANK
v.
Sudie Jewell RAMSEY, Rocky Mount Motors, Inc., and Planters National Bank & Trust Company.
No. 243.
Supreme Court of North Carolina.
April 13, 1960.
*726 L. L. Davenport and Roy A. Cooper, Jr., Nashville, for plaintiff, appellant.
T. A. Burgess, Rocky Mount, for defendant Sudie Jewell Ramsey, appellee.
W. S. Wilkinson, Rocky Mount, for defendant Rocky Mount Motors, Inc., appellee.
Calvin W. Bell, Rocky Mount, for defendant Planters Nat. Bank & Trust Co., appellee.
BOBBITT, Justice.
The briefs deal largely with whether the stipulated facts and testimony suffice to support Judge Bone's findings of fact to the effect that the automobile acquired a situs in this State within the meaning of Sections (a) and (b) of G.S. § 44-38.1 (1959 Cumulative Supplement.) In this connection, see Home Finance Co. of Georgetown, Inc. v. O'Daniel, 237 N.C. 286, 74 S.E.2d 717. The basis of decision, stated below, renders consideration and discussion of this question unnecessary.
In Mack International Truck Corp. v. Wilkins, 219 N.C. 327, 13 S.E.2d 529, it was held that title retention contracts, properly executed, registered and indexed in the State of Florida, on personal property then located therein, had priority over the liens of attachments subsequently issued against the same property in this State. The basis of decision is stated by Schenck, J., as follows: "The general rule of comity, in the absence of a modifying statute, protects the lien of a retention title contract or chattel mortgage on personal property duly registered and indexed in the State wherein it was executed and the property was then located, after the removal thereof to another state without registration in the latter state." Also, see Applewhite Co. v. Etheridge, 210 N.C. 433, 187 S.E. 588; General Finance & Thrift Corp. v. Guthrie, 227 N.C. 431, 42 S.E.2d 601.
*727 Under Chapter 1190, Session Laws of 1953, now codified as G.S. § 47-20 in the 1959 Cumulative Supplement, "No * * * conditional sales contract of personal property in which the title is retained by the vendor, shall be valid to pass any property as against * * * purchasers for a valuable consideration from the * * * conditional sales vendee, but from the time of registration thereof as provided in this article." (Our italics.) The 1953 Act, in substance, consolidated the provisions theretofore included in two statutes, to wit, G.S. § 47-20 and G.S. § 47-23 in G.S. Vol. 2A, recompiled in 1950. These statutes, in respect of conditional sales contracts, modified the rule of the common law. Friendly Finance Corp. v. Quinn, 232 N.C. 407, 61 S.E.2d 192; Universal C. I. T. Credit Corp. v. Walters, 230 N.C. 443, 53 S.E.2d 520, 10 A.L.R. 2d 758.
While G.S. § 47-20 and G.S. § 47-23 (G.S. Vol. 2A, recompiled 1950) did not relate expressly to a factual situation involving property moved into this State when subject to a chattel mortgage or conditional sale contract properly executed and filed for registration in the state from which the property was removed, the question was raised as to whether these statutes required registration in this State in the event the property came to rest or acquired a situs in this State. General Finance & Thrift Corp. v. Guthrie, supra; Associates Discount Corporation v. McKinney, 230 N.C. 727, 55 S.E.2d 513.
The cases heretofore cited, except Home Finance Corp. of Georgetown, Inc. v. O'Daniel, supra, were either decided or related to factual situations occurring prior to the enactment of Chapter 1129, Session Laws of 1949, thereafter codified as G.S. § 44-38.1 (G.S. Vol. 2A, recompiled 1950), which provided: "No mortgage, deed of trust, or other encumbrance created upon personal property while such property is located in another state is or shall be a valid encumbrance upon said property which has been, or may be, removed into this State as to purchasers for valuable consideration without notice to (sic) creditors, unless and until such mortgage, deed of trust, or other encumbrance is or was actually registered or filed for registration in the proper office in the state from which same was removed."
Chapter 251, Session Laws of 1951, effective July 1, 1951, provides in Section 1 thereof: "Chapter 1129 of the Session Laws of 1949 is hereby amended by rewriting Section 1 to read as follows:" The 1951 Act then sets forth the provisions which, as amended, are now codified in the 1959 Cumulative Supplement to the General Statutes as G.S. 44-38.1.
If the automobile here involved acquired a situs in this State within the meaning of Sections (a) and (b) of G.S. § 44-38.1, plaintiff's conditional sale contract would be valid as against a purchaser for a valuable consideration from the conditional sale vendee "only upon fulfilling all of the following conditions: (1) That such encumbrance was properly registered in the state where such property was located prior to its being brought into this State; and (2) That such encumbrance is properly registered in this State within ten days after the mortgagee, grantee in a deed of trust, or conditional sale vendor has knowledge that the encumbered property has been brought into this State; and (3) That such registration in this State in any event takes place within four months after encumbered property has been brought into this State." The stipulations and unchallenged findings of fact disclose that plaintiff's conditional sale contract did not fulfill these conditions.
On the other hand, if the automobile did not acquire a situs in this State within the meaning of Sections (a) and (b) of G.S. § 44-38.1, as plaintiff contends, Section (c) of G.S. § 44-38.1 applies. Section (c) provides: "When personal property covered by a deed of trust, mortgage or conditional sale contract is brought into this State and no situs is acquired in this State, *728 the encumbrance is valid as against lien creditors of, or purchasers for valuable consideration from, the grantor, mortgagor or conditional sale vendee only from the date of due registration of such encumbrance in the proper office in the state from which the property was brought."
When Rocky Mount Motors, Inc., purchased the automobile from Levine, the conditional sale vendee, for a valuable consideration, plaintiff's conditional sale contract had not been filed for registration in the State of New York.
Section 65 of the New York Personal Property Law, McKinney's Consol.Laws, c. 41, provides: "Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale. This section shall not apply to conditional sales of goods for resale." Plaintiff contends that, since it was filed for registration within the ten-day period, the conditional sale contract must be treated as filed for registration as of the date of the execution thereof.
It is noted that the quoted New York statute contains the provisions of Section 5 of the Uniform Conditional Sales Act. (The last sentence appears only in the New York statute.) 2 Uniform Laws Annotated 6.
While, in respect of transactions within the State of New York, the quoted New York statute may provide absolute protection to a conditional sale vendor for a period of ten days after the making of the contract as against a person who purchases for a valuable consideration from the conditional sale vendee within the tenday period, this provision of the New York statute is not controlling in North Carolina if in conflict with G.S. § 44-38.1.
"* * * comity is not permitted to operate within a State in opposition to its settled policy as expressed in its statutes, or so as to override the express provisions of its legislative enactments." Universal C. I. T. Credit Corp. v. Walters, 230 N.C. 443, 53 S.E.2d 522, supra; Associates Discount Corporation v. McKinney, supra; 13 A.L.R. 2d 1312, 1341 et seq.
Under Section (b)(1) of G.S. § 44-38.1, a conditional sale contract is valid against a purchaser for a valuable consideration from the conditional vendee only if "properly registered in the state where such property was located prior to its being brought into this State." (Our italics.) Under Section (c) of G.S. § 44-38.1, a conditional sale contract is valid as against a purchaser for a valuable consideration from the conditional sale vendee "only from the date of due registration of such encumbrance in the proper office in the state from which the property was brought." Under G.S. § 47-20, a conditional sale contract is not valid as against a purchaser for a valuable consideration from the conditional sale vendee "but from" the registration thereof as provided therein. Our registration statutes contemplate that a purchaser for a valuable consideration from a conditional sale vendee acquires title free and clear of an unrecorded conditional sale contract.
The provisions of G.S. § 44-38.1, in this respect, modify and supersede the general rule of comity; and Rocky Mount Motors, Inc., having purchased for a valuable consideration from the conditional sale vendee before the conditional sale contract was actually filed for registration in New York, acquired title from the conditional sale vendee free and clear of the then unrecorded conditional sale contract.
Since the other defendants derive their title from Rocky Mount Motors, Inc., it follows that plaintiff may not enforce its conditional sale contract as against them. *729 "After property has passed into the hands of a bona fide purchaser, every subsequent purchaser stands in the shoes of such bona fide purchaser and is entitled to the same protection as the bona fide purchaser, irrespective of notice, unless such purchaser was a former purchaser, with notice, of the same property prior to its sale to the bona fide purchaser." 77 C.J.S. Sales § 296d, quoted with approval by Ervin, J., in Handley Motor Co. v. Wood, 238 N.C. 468, 475, 78 S.E.2d 391, 397.
Frequently, in cases of this kind, loss falls upon an innocent victim, either the owner of the conditional sale contract or the purchaser for a valuable consideration from the conditional sale vendee. Their respective legal rights must be determined in accordance with the provisions of G.S. § 44-38.1.
For the reasons stated, the judgment of Judge Bone is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331440/ | 113 S.E.2d 241 (1960)
Patricia Ann LAWRENCE, an Infant, etc.
v.
Jack William NELSON.
No. 11069.
Supreme Court of Appeals of West Virginia.
Submitted January 26, 1960.
Decided March 8, 1960.
Concurring Opinion March 14, 1960.
*244 Steptoe & Johnson, Carl F. Stucky, Jr., Charleston, W. Va., for plaintiff in error.
Lane & Preiser, John J. Lane, Charleston, W. Va., for defendant in error. *242
*243 BERRY, Judge.
This is an action of trespass on the case brought by the plaintiff, Patricia Ann Lawrence, an infant, who sues by Marguerite Miller, her next friend, to recover damages from the defendant, Jack William Nelson, for personal injuries sustained by the plaintiff as a result of an automobile accident which occurred on the West Virginia Turnpike near Milepost 81. The case was tried in the Common Pleas Court of Kanawha County in May, 1958, before a jury which rendered a verdict of $15,000 for the plaintiff, upon which judgment was entered on September 17, 1958. The Common Pleas Court overruled a motion to set aside the verdict and the Circuit Court of Kanawha County refused to grant a writ of error. Upon petition to this Court, a writ of error and supersedeas was granted on June 9, 1959.
The declaration charged the defendant with exceeding the speed limit, failing to *245 keep on his side of the road, failing to keep his vehicle under proper control and to operate it in a careful and prudent manner.
The evidence as to the cause of the accident is conflicting. It occurred about 10 p. m. on April 15, 1957, on the West Virginia Turnpike near the Marmet overpass and Milepost 81. The plaintiff was a passenger in a 1956 Ford automobile, driven by her husband, Jerry M. Lawrence, and owned by her mother-in-law, Marguerite Miller. The automobile in which the plaintiff was riding was proceeding in a southerly direction from Charleston. The defendant, Jack William Nelson, was driving alone in a 1956 Lincoln automobile, owned by him, in a northerly direction from Beckley toward Charleston. The version of the accident by Lawrence and the plaintiff is that they were following another car about 700 feet ahead of them, and after the defendant, Nelson, met and passed the automobile in front of them, he drove his car over to their side of the road and Lawrence then steered his automobile to the left in order to avoid hitting the Nelson car, and when the Nelson car was about 125 feet away it was turned back onto his, Nelson's, side of the highway, and by the time Lawrence was over on the berm on Nelson's side of the road, Nelson's car was driven off the pavement and collided with the Lawrence car on the berm. The left front of the Nelson car hit the left front of the Lawrence car and both cars were stopped as a result of the impact. There is some conflict in the evidence with regard to how much of the cars was off the concrete part of the road and as to their exact positions, but it appears that both automobiles were either completely or almost completely on the berm of what was the proper side of the highway for the Nelson car, but the wrong side for the Lawrence car, and the cars were stopped almost parallel with each other, with the front ends pointing toward the Kanawha River or the eastern side of the highway. The cars collided almost head-on and considerable damage was done to each car, and as a result of the collision Lawrence was dazed and the plaintiff and Nelson were seriously injured.
The speed limit on the Turnpike at the scene of this accident is 60 miles per hour. Lawrence stated that he was driving about 55 miles per hour and Nelson denies that he was speeding. Nelson was rendered unconscious and lost his memory as a result of the accident and has only partially regained it. What he does remember up to the time of the accident is the direct opposite of Lawrence's testimony. Nelson says he saw two sets of headlights approaching him and that he turned his car to his own side in order to get out of the highway, whereupon, his car was struck. There is a slight curve near the scene of the accident and Nelson states that he saw the two sets of headlights coming toward him as he entered the curve.
Several witnesses testified on behalf of the plaintiff to the effect that they smelled the odor of alcohol on Nelson at the time he was brought into the hospital in Charleston following the accident. However, this testimony was contradicted by several witnesses who testified on behalf of Nelson and who were near him in the hospital, their testimony being that they did not detect any odor of alcohol on Nelson. Nelson was unconscious at the time and nothing was testified to except the odor of alcohol. The defendant offered several witnesses to prove his reputation for sobriety, to which the plaintiff objected, and the court refused to allow such evidence to be considered.
There were no witnesses to the accident other than the occupants of the two cars. The first motorist to arrive on the scene was Frank K. Hereford. Mr. Hereford stated that when he arrived on the scene there was dust settling around the cars; that steam was coming from them and the cars were close together; the plaintiff was lying in the road and the defendant was still in his automobile; Lawrence was *246 standing near where the concrete meets the berm and was waving to stop him; that Lawrence was quite excited and urged him to get an ambulance. Mr. Hereford further stated that within two to five minutes after he arrived on the scene he asked Lawrence what happened, and Lawrence told him that he was proceeding south and observed the other car approaching, that it appeared as though the other car was not going to make the curve and he, realizing that the car was going to strike him, cut his car to the left, and, as he did so, the driver of the approaching car cut its wheels to the right and the two cars collided. This witness further says that he did not observe any skid marks made by the Lincoln car. However, State Trooper Heflin, who testified for the defendant, stated that his investigation disclosed that skid marks of 81 feet and 36 feet were made by the Lincoln automobile on the berm leading up to where the two cars collided.
The statement by Hereford as to what Lawrence told him when he arrived at the scene of the accident is almost identical with that made by Lawrence during the trial. The defendant objected to the admission of this evidence by Hereford on the theory that it was not part of the res gestae, because it was in response to a question and would result in Lawrence testifying twice. However, almost the same statement was introduced in evidence by plaintiff on cross examination of the state police officer, Heflin, who testified on behalf of the defendant, and no objection was made by the defendant to the introduction on cross examination of this statement elicited from his own witness.
The plaintiff introduced Clarence S. Bruce of Ft. Myers, Florida, who testified as an expert witness and who qualified as a "traffic accident analyst", having been employed by the Federal Bureau of Standards during which time he developed formulas and tables relating to the reaction and stopping time, roadability of cars on curves, etc. His duties with the government were to analyze accidents in order to determine who was at fault so that the government could decide whether to pay for damages where a government vehicle was involved in an accident with a private citizen. The defendant objected to the questions asked this witness on the ground that they were not proper hypothetical questions, but later cross examined him and supplied additional facts with regard to the theory of the defendant, and after the witness had completed his testimony and had been excused by the court, a motion was made to strike his evidence and instruct the jury not to consider it on the ground that his calculations were not correct with regard to all the facts. On cross examination Bruce stated, in answer to questions by the attorney for the defendant, that his calculations would not be correct or applicable if the skid marks were made by the defendant's automobile, as testified to by the state trooper, because he had not taken such evidence into consideration in his calculations. No objection was made at any time to the testimony of Bruce as an expert witness. The court overruled the motion made by the defendant relative to this witness.
The plaintiff was seriously injured in the accident. She received cuts on both legs near the knees, leaving large scars, a fractured pelvis, four fractures of the vertebrae, a severely injured thumb and many bruises and abrasions. Some of the injuries are of a permanent nature. She was pregnant at the time of the accident, and as a result of the injuries received, was forced to undergo a Caesarean section operation in the delivery of her child, and, according to testimony given by Dr. Leo M. Seltzer, will be unable to bear other children except by this method.
The defendant assigns thirteen grounds of error in his brief for reversal but many of them are repetitious and can be reduced and summarized as follows: (1) The verdict is contrary to the law and evidence, and is excessive; (2) it was error to admit certain testimony of the witness Hereford because it does not constitute res gestae; *247 (3) it was error to admit the testimony regarding the odor of alcohol and then error to refuse to allow the defendant to introduce evidence with regard to the reputation of defendant as to his sobriety; (4) it was error to allow the jury to consider the expert testimony of the witness Bruce; and, (5) it was error to give instructions 2 and 5, offered by the plaintiff.
We shall consider the assignments of error in the order listed. The first assignment is that the verdict is contrary to the law and evidence, and if this assignment is well taken, there is no need to go any further in the discussion of this case, because then it would be a question of law for the court and a directed verdict should have been given. However, we are of the opinion that this case was one for jury determination. The evidence of the plaintiff and of the defendant, as to the cause of this accident, is in direct conflict. Where this situation exists, the case should be submitted to the jury for its determination. 19 M.J., Verdict, § 32, page 521; Davis v. Pugh, 133 W.Va. 569, 57 S.E.2d 9; Wilson v. Edwards, 138 W.Va. 613, 77 S.E.2d 164. It was held in the second point of the syllabus in the case of Prettyman v. Hopkins Motor Co., 139 W.Va. 711, 81 S.E.2d 78, 79, that: "When the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the question of negligence is for the jury." If the jury had believed the evidence of the defendant, that he was driving his automobile on his side of the highway and did not drive onto the wrong side, or the plaintiff's side, and that the accident occurred on the berm, on defendant's right side, the jury should have found for the defendant and the verdict would not have been set aside. The jury, however, believed the evidence of the plaintiff, that the defendant drove his car onto the wrong side of the highway and then turned back to his right side of the highway where plaintiff's driver had gone to avoid colliding with the automobile of the defendant. Their verdict was based on this evidence and cannot be set aside by this Court unlesss some error of law was committed in the trial of the case. Lawson v. Dye, 106 W.Va. 494, 145 S.E. 817, 63 A.L.R. 271; Gilbert v. Lewisburg Ice Cream Co., 117 W.Va. 107, 184 S.E. 244; Thrasher v. Amere Gas Utilities Co., 138 W.Va. 166, 75 S.E.2d 376; Clay v. Walkup, W.Va., 107 S.E.2d 498.
This question is clearly answered in the case of Gilbert v. Lewisburg Ice Cream Co., supra, with facts quite similar to those in the case at bar concerning the cause of the accident. In the Gilbert case the defendant's truck was about 85 or 90 feet away and on the plaintiff's side of the road when the automobile in which the plaintiff was riding was steered to its left side of the road to avoid a collision, but the defendant's driver turned his truck to the right and the accident resulted. In the case at bar, according to the plaintiff's evidence, the automobile in which the plaintiff was riding was turned to its left, in order to avoid a head-on collision, as in the Gilbert case. The defendant's automobile was about 700 feet away on its right side of the highway and passing another automobile which was in front of the automobile in which the plaintiff was riding when it was first observed by the plaintiff's driver and was steered to its left and driven over to the plaintiff's side of the road. When the defendant's automobile was about 125 feet away it was turned back on its side of the highway where the plaintiff's car had been driven and the cars collided, all of which would have had to be done within a very few seconds, because of the combined speed of the approaching automobiles. It was held in point 1 of the syllabus in the Gilbert case that: "It is ordinarily a question of fact for the jury to determine whether or not a motorist is justified in turning to the left in order to avoid another vehicle coming from the opposite direction on the wrong side of the road." [117 W.Va. 107, 184 S.E. 245.]
The assignment of error with regard to the verdict being excessive apparently *248 was abandoned by the defendant, as it was not discussed in the defendant's brief. However, we are of the opinion that it is without merit because the plaintiff received serious injuries as a result of this accident and the testimony is uncontradicted that some of the injuries are of a permanent nature. Therefore, the verdict is supported by the evidence and there is no indication in this case that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case. Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410; Davis v. Pugh, 133 W.Va. 569, 57 S.E.2d 9.
In the second assignment of error listed above, the defendant claims it was error to allow the witness Hereford to testify as to what Lawrence told him pertaining to the cause of the accident, in answer to his question, when the witness Hereford arrived upon the scene immediately following the accident. It is the contention of the defendant that the statements made by Lawrence to Hereford did not constitute res gestae, and therefore are not admissible as being hearsay evidence. This statement was made soon after the accident occurred, while dust from the accident was settling and steam still coming from the two automobiles, when Lawrence's wife, the plaintiff, was lying on the highway, seriously injured, and Lawrence visibly excited. We are of the opinion that this evidence constituted res gestae under the holdings of decided cases in this state with regard to this question. See Starcher v. South Penn Oil Co., 81 W.Va. 587, 95 S.E. 28. It was held in the case of Blagg v. Baltimore & O. Railroad Co., 83 W.Va. 449, 98 S.E. 526, point 2 of the syllabus, that: "Whenever a statement is made by one under such circumstances that it may be regarded as spontaneous and as the direct result of a transaction to which he was a party, it becomes a part of the transaction itself, and if proof of the fact is material to the inquiry being made, such statement will be received in evidence as tending to establish such fact." Res gestae is an exception to the hearsay evidence rule. Such statements are admitted in the evidence on the theory that the person making a statement under circumstances of stress or excitement would not have the opportunity to make a false statement, and spontaneity rather than contemporaneity is now the generally recognized test of admissibility. The spontaneity of the utterance is the guaranty of its trustworthiness. It would make no difference that the statement in this case was made by Lawrence some five or ten minutes after the accident occurred. Collins v. Equitable Life Ins. Co., 122 W.Va. 171, 8 S.E.2d 825, 130 A.L.R. 287; Robertson v. Coal & Coke Railway Co., 87 W.Va. 106, 104 S.E. 615; Chesapeake & O. Ry. Co. v. Mears, 4 Cir., 64 F.2d 291.
It will be remembered that Lawrence's testimony, which followed that of Hereford, was the same with regard to the statements in question, as well as being the same as the testimony of the state police officer who testified on behalf of the defendant, and who on cross examination read a statement taken from Lawrence, which is almost identical with that testified to by Hereford, without any objections on the part of the defendant. Because of the failure of the defendant to object to such testimony given, even on cross examination, by a witness called by him, it would, no doubt, constitute a waiver of this matter, and in any event, the effect was cumulative and would not be regarded as prejudicial error. Whitten v. McClelland, 137 Va. 726, 120 S.E. 146; Scholz v. Standard Acc. Ins. Co., 145 Va. 694, 134 S.E. 728; Powell v. Young, 151 Va. 985, 144 S.E. 624, (Reversed on rehearing on other grounds, Powell v. Young, 151 Va. 985, 145 S.E. 731.)
The third assignment of error with regard to the admission of evidence with reference to the odor of alcohol being detected on Nelson after the accident, and the refusal of the court to allow him to introduce evidence regarding his reputation for sobriety, is without merit. In the first place, such evidence, if properly proved, *249 would be admissible in determining whether or not due care was used under the circumstances and for the purpose of showing the probability of negligence. 65 C.J.S. Negligence § 143, p. 784; Dokus v. Palmer, 130 Conn. 247, 33 A.2d 315. Also, as a general rule, it is not proper to use witnesses to show the reputation or character of a person in a civil suit unless criminal intent is involved on the part of the defendant. Hess v. Marinari, 81 W.Va. 500, 94 S.E. 968; Horton v. Tyree, 104 W.Va. 238, 139 S.E. 737. In addition to the above discussion with regard to this assignment, the court instructed the jury in Instruction Number 2, offered by the defendant, that there was no evidence in this case upon which it could find that the defendant was intoxicated or driving his automobile at the time of the accident while under the influence of intoxicants. In other words, the court in effect told the jury not to consider this matter, and if there was error with regard to it, it was cured by this Instruction.
The fourth assignment of error deals with the defendant's contention that the testimony of the witness, Bruce, was improperly admitted for jury consideration. This witness is a mechanical engineer who specialized in automotive engineering. He is highly trained as a "traffic accident analyst" and had technical knowledge which the jurors did not have. If proper hypothetical questions were propounded to this witness with facts assumed which had been properly proved, it would appear that he was qualified to answer such questions, and the assumed facts used as a basis for hypothetical questions do not have to be based on undisputed testimony. Fairview Fruit Co. v. H. P. Brydon & Bro., 85 W.Va. 609, 102 S.E. 231; Byrd v. Virginian Railway Co., 123 W.Va. 47, 13 S.E.2d 273. No objection was made by the defendant to this witness testifying as an expert witness during the trial of the case. However, three perfunctory objections were made by the defendant with regard to the form of certain questions, but no rulings were made thereon by the trial court. Therefore, this assignment cannot now be considered by this Court because it was waived. 88 C.J.S. Trials § 114, p. 229; Wilson v. Dalton's Adm'r, 311 Ky. 285, 223 S.W.2d 978. Then too, the defendant cross examined this witness and asked him questions assuming other facts placed in evidence by the defendant which were proper, and answers were obtained which the jury could consider in connection with the weight to be given to the testimony of this witness as to its application after considering all of the evidence dealing with this matter, and it was only after this witness had been excused by the court that a motion was made to strike his evidence and instruct the jury not to consider it. The general reasons given for such motion were that counsel for the defendant did not think his calculations were correct, and that they were based on erroneous assumption of facts. No attempt was made to point out the specific reasons for the statements, and the motion was overruled by the trial court and exceptions taken by the defendant. The matter involved in this motion deals with the weight to be given to the evidence in question, and is a matter for jury determination. Bank v. Hannaman, 63 W.Va. 358, 60 S.E. 242.
The fifth and last assignment of error to be considered is the contention of the defendant that Instructions 2 and 5, offered by the plaintiff and given by the court, constituted reversible error.
Instruction No. 2 of the plaintiff is not argued in the defendant's brief and for this reason it would appear that the assignment of error based on this Instruction has been abandoned. This Instruction merely told the jury that if the defendant violated the statute, such violation constituted prima facie negligence on the part of the defendant, and if the jury found that such prima facie negligence was the proximate cause of the plaintiff's injury, then it may find for the plaintiff. The objection to Instruction No. 2 is that it did not say that the prima facie negligence could be rebutted, but Instruction No. 10, offered *250 by the defendant and given by the court, did tell the jury that this prima facie negligence could be rebutted. Plaintiff's Instruction No. 2 was not a binding instruction and all instructions given to the jury must be taken and read together. Curfman v. Monongahela West Penn, 113 W.Va. 85, 166 S.E. 848; Davis v. Fire Creek Fuel Company, W.Va., 109 S.E.2d 144. Therefore, if there was any error in the giving of plaintiff's Instruction No. 2, it was cured by defendant's Instruction No. 10, given by the court.
The objection to plaintiff's Instruction No. 5, given by the court, is that it told the jury it could take into consideration the age of the plaintiff in estimating damages in connection with her injuries and her inability to perform the normal functions of life in the future, as well as future humiliation and embarrassment when there was no proof introduced during the trial as to the plaintiff's age, and, therefore, the instruction was not supported by the evidence. It is also the contention of the defendant that the jury cannot consider her life expectancy because no mortality tables were introduced. It is true that no mortality tables were introduced in evidence in this case, but this matter usually comes up by objections being made to the introduction of mortality tables and it has been held that it is not error to introduce such tables and they are usually considered a safe guide to be considered, along with other facts and circumstances. Culp v. Virginian Railway Co., 77 W.Va. 125, 87 S.E. 187; Virginia & S. W. Ry. Co. v. Bailey, 103 Va. 205, 49 S.E. 33; 25 C.J.S. Damages § 81, p. 592.
However, it is held that mortality tables are not the exclusive evidence admissible to establish life expectancy and the jury may determine such facts from their own knowledge and from proof of age, health, habits of the person and other facts before them. 25 C.J.S. Damages § 81, p. 594; Donoghue v. Smith, 114 Conn. 64, 157 A. 415; S. A. Gerrard Co. v. Couch, 43 Ariz. 57, 29 P.2d 151; Prettyman v. Topkis, 9 W.W.Harr. 568, 39 Del. 568, 3 A.2d 708.
During the trial of this case a statement was made in the presence of the jury by the trial court that the plaintiff was nineteen years of age, and in response to this statement by the court, the attorney for the plaintiff answered that she was nineteen years of age. No objection to these statements was made by the defendant's attorney and his only response in connection therewith was that she was a married woman. The jury observed the plaintiff for several days and could personally see her physical condition as well as her actions and expressions. Her husband testified during the trial that he was twenty years of age. The declaration, which is available for every purpose of the trial, and need not be formally put in evidence in order to be considered by the jury, showed that the plaintiff was an infant under the age of twenty-one years. All of these factors taken together would be sufficient for the jury to determine the age of the plaintiff in connection with her life expectancy, in order to award damages for future pain and suffering. The uncertain factor of life expectancy would be little varied by a small error in estimation of age. Uncertainty of this factor prevents absolute accuracy in such cases.
It is also the contention of the defendant that plaintiff's Instruction No. 5 is erroneous, because it told the jury that they could take into consideration the plaintiff's life expectancy in considering compensation for future pain and suffering, and that age should not be considered when awarding damages for pain and suffering. It has been repeatedly held that damages can be awarded for future pain and suffering. Bailey v. De Boyd (Transfer Co.), 135 W.Va. 730, 65 S.E.2d 82; Gwaltney v. Reed, 196 Va. 505, 84 S.E.2d 501. The age or life expectancy of the plaintiff would, by necessity, have to be taken into consideration in order to award such damages.
*251 It is true that the future effect of an injury upon the person injured must be shown with reasonable certainty in order to authorize a recovery of damages for a permanent injury. Wilson v. Fleming, 89 W.Va. 553, 109 S.E. 810; Bailey v. De Boyd (Transfer Co.), 135 W.Va. 730, 65 S.E.2d 82. However, this deals with the proof pertaining to the injury being of a permanent nature. In this case there is ample proof of the permanent injuries suffered by the plaintiff. This is clearly shown in the evidence with regard to the fracture and displacement of the pelvis, fractures of four vertebrae, severe cuts and long scars on the legs or knees. Therefore, the giving of plaintiff's Instruction No. 5 does not constitute reversible error.
For the foregoing reasons, the judgments of the Court of Common Pleas of Kanawha County and the Circuit Court of Kanawha County, are affirmed.
Affirmed.
CALHOUN, Judge (concurring).
While I concur in the result reached in the decision of this case, I am unable to agree that the trial court properly admitted, over objection, that portion of the testimony of Frank K. Hereford, in which the witness summarized the narrative statement made to him by Jerry Lawrence concerning the facts leading up to and including the prior collision of the motor vehicles.
The testimony discloses that Jerry Lawrence is the husband of the plaintiff; that he was the driver of the vehicle in which she was a passenger at the time she sustained her injuries; and that he also has an action pending against the defendant to recover for damage caused to his automobile and for medical bills incurred in behalf of his wife as a consequence of the accident involved in the instant case.
The following questions propounded to Frank K. Hereford and the following answers given by him fairly disclose the nature of the testimony thus admitted over objection:
"Q. Mr. Hereford, do you know how soon after the wreck had occurred that you came upon the scene? A. No, sir.
"Q. Can you describe the scene as you arrived there? A. Yes, sir. I felt I got there rather quickly after it had happened because there was dust settling around the cars and there was steam coming from one or both of the cars and they were close together. When I got there there wasn't anyone else there.
* * * * * *
"Q. All right. Who was present at the scene when you arrived there? A. At first I saw the cars and then I saw a young man, let's see, just about on the concrete where it meets the asphalt berm, and he was in motion and I am pretty sure he was waving to stop me, but I had already seen the cars and was beginning to stop and then I guess as I passed that young man I realized there was a body lying on the road and when I got my car parked and put my blinker lights on to try to stop other cars, I walked back and there was a young woman lying there on the road.
* * * * * *
"Q. And was the young man you first saw Mr. Jerry Lawrence, her husband? A. It was.
"Q. What, if anything, did Jerry Lawrence tell you then? A. For a while he was quite excited and for the first few minutes he urged me to get my car and drive on and get an ambulance. That was what he was most insistent about but I wouldn't do that and later on I asked him what happened.
* * * * * *
*252 "Q. By `later on' what do you mean? A. Somewhere from two to five minutes.
* * * * * *
"Q. And was the statement which he made to you then a part of the same conversation which you started with him in which he asked you to go on and move your car?
* * * * * *
"The Witness: I might have difficulty in answering. It was a running conversation. The young man and I talked steadily for some two to four minutes until another car came along to stop. If it please all of you gentlemen, I was in fear of this young woman's life because she was lying there on the concrete and I was trying to get other cars to stop, to use their lights to stop other traffic so that she wouldn't get hit. I had a running conversation with the young Lawrence boy for the duration of two to four minutes.
"Q. And during that conversation which lasted as you say from two to four minutes, did Mr. Lawrence tell you about how the wreck occurred?
* * * * * *
"The Witness: A. Yes, sir.
"Q. What did he tell you, Mr. Hereford? A. I first asked him to give me the name and telephone number of his mother so that I could notify her and then I asked him what happened and he told me.
"Q. What did he tell you? A. He told me he was going south on the Turnpike up the river that a car approaching him going down the river failed to make theor was not making the curve there on the Turnpike and that he, realizing that that car was going to strike him, cut his wheels hard to the left to try to go around him on the other side and that as he did so this car approaching him cut his wheels hard to the right and that they collided."
Whether the narrative statement, on the question of its admissibility, be tested on the basis of the rather indefinite and confusing doctrine of res gestae, or upon the more narrow rule relating to spontaneous utterances, in either event the verbal declaration must meet the test of spontaneity. "But spontaneity rather than contemporaneity is now the generally recognized test of admissibility." Collins v. Equitable Life Ins. Co., 122 W.Va. 171, 173, 8 S.E.2d 825, 826, 130 A.L.R. 287. The basis of the doctrine is, of course, that the spontaneous, impulsive, almost involuntary nature of the utterance supplies the essential guaranty of trustworthiness. Such utterances are admitted only when the declarant is "under such stress of emotion or excitement as to render the declarations spontaneous to the point of being almost involuntary, precluding the reflection that gives rise to falsehood." Reynolds v. W. T. Grant Co., 117 W.Va. 615, 620, 186 S.E. 603, 605.
Reflection is the very antithesis of spontaneity. Innate in an extended narrative of a past event on a question and answer basis is the element of reflection. From this we derive the well-settled propostion that if the declaration or statement is a mere narrative of a past event, such declaration or statement may not be admitted under the rule of evidence now under consideration. Accordingly, in the early case of Corder v. Talbott, 14 W.Va. 277, the Court, in the third point of the syllabus, stated: "When the declarations are merely a narrative of a past occurrence, though made ever so soon after the occurrence, they ought not to be received in evidence, they being in such case no part of the res gestae." The same principle, which is believed to represent a quite general rule, has been recognized in Hawker v. B. & O. R. Co., 15 W.Va. 628, 637; Williams v. Belmont Coal & Coke Co., 55 W.Va. 84, 97-98, 46 S.E. 802, 807; State v. Woodrow, 58 W.Va. 527, 534, 52 S.E. 545, 548, 2 L.R.A.,N.S., 862; Depue v. Steber, 89 W.Va. 78, *253 82-83, 108 S.E. 590, 591-592; Collins v. Equitable Life Ins. Co., 122 W.Va. 171, 174, 8 S.E.2d 825, 826, 130 A.L.R. 287.
The necessity of the element of spontaneity is fully recognized in the prior decisions of this Court cited in the opinion in support of the holding that this testimony was properly admitted by the trial court. Such necessary element of spontaneity is likewise recognized in the fourth point of the syllabus of the opinion.
The statement attributed by the witness to Jerry Lawrence "was a running conversation", on a question and answer basis, an extended "conversation" lasting "some two to four minutes", as distinguished from a spontaneous utterance. Though, for reasons stated in the opinion, a decision of this question was unnecessary to a decision of the case, I fear that the Court's opinion may be regarded as a precedent for an unwarranted application of the rule of evidence. I, therefore, undertake herein briefly to state my position.
I concur in the result, nevertheless, because that which I conceive to have been error was rendered harmless by the testimony of Jerry Lawrence under oath in open court and by the introduction in evidence, without objection, of the written statement taken from him by the investigating officer. | 01-03-2023 | 10-30-2013 |
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