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https://www.courtlistener.com/api/rest/v3/opinions/1331412/ | 650 S.E.2d 618 (2007)
David STANDLEY, Plaintiff,
v.
TOWN OF WOODFIN, an incorporated municipality in the State of NC; and Brett Holloman, Chief of Police, in his Official Capacity, Defendants.
No. COA06-1449.
Court of Appeals of North Carolina.
October 2, 2007.
Cloninger, Elmore, Hensley & Searson, PLLC, by Bruce A. Elmore, Jr., Asheville, for plaintiff.
Ferikes & Bleynat, by Joseph A. Ferikes, Asheville, for defendant.
ELMORE, Judge.
David Standley (plaintiff) appeals a judgment of the Buncombe County Superior Court entered 7 August 2006. For the reasons stated herein, we affirm the decision.
Plaintiff resides with his mother in the Town of Woodfin (Woodfin) in Buncombe County. In 1987, while living in Florida, plaintiff was convicted of attempted sexual battery and aggravated assault against a woman, making him subject to the North Carolina Sex Offender & Public Protection Registry (the Registry). The Registry requires individuals who have committed an offense against a minor or a sexually violent offense to register as sex offenders. N.C. Gen.Stat. §§ 14-208.6(4), 14-208.7(a) (2005). Plaintiff served three and a half years of his nine-and-a-half-year sentence; the remaining six years of his sentence were suspended and he was placed on supervised probation. In 1995, plaintiff was convicted of solicitation of prostitution. As a result, his probation was revoked. In 1999, plaintiff was unconditionally released. In 2004, he moved to Buncombe County, where he registered with the Registry at the sheriff's office as required by N.C. Gen.Stat. § 14-208.7.
Plaintiff suffered a stroke in 1998, as a result of which he never travels without his mother. Plaintiff frequented the Woodfin Riverside Park, always with his mother and sometimes with other family members as well.
Plaintiff challenged an ordinance, enacted on 19 April 2005, that prohibits registered sex offenders from knowingly entering any public park owned and operated by defendant-appellee Woodfin (the ordinance). The ordinance states, in relevant part,
It shall constitute a general offense against the regulations of the Town of Woodfin for any person or persons registered as a sex offender with the state of North Carolina and or any other state or federal agency to knowingly enter into or on any public park owned, operated, or maintained by the Town of Woodfin.
Woodfin, N.C., Ordinances § 130.03 (19 April 2005). Prior to the enactment of the ordinance, two incidents of sexual offenses occurred in or near two of the three public parks in Woodfin. Plaintiff and Woodfin[1] filed motions for judgment on the pleadings and summary judgment. The Buncombe County Superior Court granted Woodfin's motion for summary judgment. Plaintiff appeals.
We review the trial court's decision de novo. Magnolia Mfg. v. Erie Ins. Exchange, 179 N.C.App. 267, 276-78, 633 S.E.2d 841, 847 (2006) (citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004)). "Alleged errors of law are subject to de novo review on appeal." Falk Integrated Tech., Inc. v. Stack, 132 N.C.App. 807, 809, 513 S.E.2d 572, 574 (1999) (citation omitted). Rulings on motions for judgment on the pleadings under N.C. Gen.Stat. § 1A-1, Rule 12(c) are also reviewed de novo. Toomer v. Branch Banking & Tr. Co., 171 N.C.App. 58, 66, 614 S.E.2d 328, 335 (2005) (citations omitted).
Plaintiff first argues that the ordinance violates his fundamental right to travel through "public spaces," protected by the due process clause of the Fourteenth Amendment. He also argues that the ordinance denies him his constitutional freedom to intrastate travel as recognized in Williams v. Fears, 179 U.S. 270, 274, 21 S. Ct. 128, 129, 45 L. Ed. 186, 188 (1900) (finding that "the right, ordinarily, of free transit from or through the *621 territory of any state is a right secured by the 14th Amendment").
Substantive due process is not a blanket protection. In Doe v. City of Lafayette, Ind., the United States Court of Appeals for the Seventh Circuit found that the right to enter public parks for "innocent, recreational purposes" is not a fundamental right. 377 F.3d 757, 771 (7th Cir.2004).
In Willis v. Town of Marshall, N.C., the United States Court of Appeals for the Fourth Circuit noted the division on the issue of whether intrastate travel is a fundamental right, but did not reach a conclusion. 426 F.3d 251, 265 (4th Cir.2005) (comparing Lutz v. City of York, 899 F.2d 255, 259-68 (3d Cir.1990) in which intrastate travel is a recognized fundamental right, with Doe, 377 F.3d at 770-71, which rejects sex offenders' claim to a fundamental right to access public parks). However, the Willis court points to the general rule that courts "must be reluctant to expand the concept of substantive due process because guideposts . . . in this uncharted area are scarce and open-ended," and courts run the risk of turning the due process clause into a personal preference policy instrument for judges. Willis, 426 F.3d at 266-67 (quotations and citations omitted).
The right to intrastate travel is a "right of function." Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir.2002). We therefore hold that the right to enter parks is not encompassed by either the fundamental right of travel or the right to intrastate travel. The ordinance does not infringe upon plaintiff's fundamental right to intrastate travel because it does not impair his daily functions. The ordinance does not prevent plaintiff from enjoying the open air with his mother and his friends in other locations if he so desires: it is restrictive only as to defendant's public parks.
Plaintiff further argues that the ordinance is not rationally related to a legitimate government interest and thus violates his substantive due process rights. He claims that although the intent of the ordinance is to protect children who use Woodfin's park system, the ordinance prohibits all registered sex offenders from entering those parks. The town minutes from a meeting to consider the ordinance recognize child safety as one of the concerns, but do not definitively point to the safety of children as the main purpose of the ordinance. Plaintiff argues that he has never committed a crime against a child, nor has he been accused of engaging in any kind of indecent behavior directed at a child or anyone else while visiting any park in Woodfin.
"[N]arrow tailoring is required only when fundamental rights are involved. The impairment of a lesser interest . . . demands no more than a `reasonable fit' between governmental purpose . . . and the means chosen to advance that purpose." Reno v. Flores, 507 U.S. 292, 305, 113 S. Ct. 1439, 1448-49, 123 L. Ed. 2d 1, 18 (1993). Substantive due process serves to protect individuals from arbitrary government actions that lack "reasonable justification in the service of a legitimate government objective." Dobrowolska v. Wall, 138 N.C.App. 1, 14, 530 S.E.2d 590, 599 (2000) (quotations and citation omitted).
In State v. Stewart, this Court found overbroad a North Carolina law prohibiting motorists from shining light into the area past a roadway during certain hours, effectively prohibiting cars from having their headlights on during those times. 40 N.C.App. 693, 696-97, 253 S.E.2d 638, 640-41 (1979). The law constituted an "arbitrary interference with otherwise innocent conduct and lack[ed] any rational . . . relation to the . . . general welfare." Id. at 697, 253 S.E.2d at 641. Having found the law overbroad, this Court did not consider whether or not intrastate travel was a fundamental right. Id. at 698, 253 S.E.2d at 641.
Plaintiff's assertion that the intended purpose of the ordinance is the protection of children is tenuous. The text of the resolution adopting the ordinance suggests a broader reach:
Whereas the Town of Woodfin maintains a park system that is meant for the peaceful enjoyment of children and other citizens, and;
*622 Whereas it is in the interest of promoting the general welfare and safety of the people of Woodfin. . . .
Thus, plaintiff's claim that the ordinance was intended only to protect children is unpersuasive. Even if we were to find that the right to access public parks is a fundamental right, which we expressly decline to do, the ordinance is rationally related to the legitimate government interest it aims to address.
The United States Supreme Court has specifically recognized the inherent danger of reintegrating sex offenders into society. In Conn. Dep't of Pub. Safety v. Doe, the Court stated that "[s]ex offenders are a serious threat in this Nation. The victims of sex assault are most often juveniles, and when convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sex assault." 538 U.S. 1, 4, 123 S. Ct. 1160, 1163, 155 L. Ed. 2d 98, 103 (2003) (quotations and citations omitted).
By restricting only registered sex offenders from entering public parks, which are frequented by children and other citizens, the ordinance promotes the general welfare and safety of Woodfin's citizens, which is a legitimate government purpose. Thus, we find the ordinance to be rationally related to a legitimate government purpose.
Plaintiff next argues that the ordinance is punitive in a way that would violate the ex post facto clause, and relies on the five-part test adopted in Smith v. Doe: (1) whether it "promotes the traditional aims of punishment"; (2) whether the law was "regarded in history and tradition as punishment"; (3) whether it "imposes an affirmative disability or restraint"; (4) whether it "has a rational connection to a nonpunitive purpose"; or (5) whether it "is excessive with respect to [that] purpose." Smith v. Doe, 538 U.S. 84, 97, 123 S. Ct. 1140, 1149, 155 L. Ed. 2d 164, 180 (2003) (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68, 9 L. Ed. 2d 644, 661 (1963) (considering two additional factors not considered in Smith)).
The Mendoza-Martinez factors should only be used in the absence of conclusive evidence of legislative intent. Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. at 568, 9 L.Ed.2d at 661. "[W]e will reject the legislature's manifest intent only where a party challenging the statute provides the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the State's intention." Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 2082, 138 L. Ed. 2d 501, 515 (1997) (internal quotations, citations, and alterations omitted). As previously noted, the town meeting minutes reveal a non-punitive intention to maintain the parks for the enjoyment and safety of the people of Woodfin.
Plaintiff argues that despite its lack of punitive intent, the ordinance is punitive in effect. Plaintiff focuses mainly on the assertion that the ordinance promotes deterrence and retribution. He also argues that the ordinance has the effect of banishing him from public spaces, which he argues has been traditionally regarded as punishment throughout history. However, the case upon which he relies for this assertion refers to banishment in terms of "forfeiture of citizenship," which is not at issue here. See Mendoza-Martinez, 372 U.S. at 168 n. 23, 83 S.Ct. at 567 n. 23, 9 L.Ed.2d at 661.
Plaintiff also reiterates that the ordinance is not narrowly tailored to serve its nonpunitive purpose. He reasons that it could create a false sense of security because children may be molested by someone that they know. However, in Smith, the Supreme Court found that "[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance." Smith, 538 U.S. at 103, 123 S.Ct. at 1152, 155 L.Ed.2d at 183 (finding that a statute requiring registration of sex offenders was nonpunitive, serving the purpose of public safety).
Restrictions on a person's activities may be imposed without being punitive. The ordinance does not subject registered sex offenders to affirmative disability or restraint; they may still travel freely and attend to their daily functions. Thus, plaintiff's arguments that the ordinance is punitive in effect are not convincing. The ordinance, being neither *623 punitive in intent nor effect, does not violate the ex post facto clause.
"The police power of the State is broad enough to sustain the promulgation and fair enforcement of laws designed to restore the right of safe travel by temporarily restricting all travel, other than necessary movement reasonably excepted from the prohibition." State v. Dobbins, 277 N.C. 484, 499, 178 S.E.2d 449, 458 (1971). This police power "extends to all the compelling needs of the public health, safety, morals and general welfare." Id. at 497, 178 S.E.2d at 457. Though a city does not have inherent police power, this power is delegated by statute to cities in North Carolina: "A city may by ordinance define, prohibit, regulate, or abate acts . . . detrimental to the health, safety, or welfare of its citizens. . . ." N.C. Gen.Stat. § 160A-174 (2005). This Court has held that municipalities may regulate within their boundaries for the purpose of protecting public property. Slavin v. Town of Oak Island, 160 N.C.App. 57, 60, 584 S.E.2d 100, 102 (2003); see also Euclid v. Ambler Realty, 272 U.S. 365, 395, 47 S. Ct. 114, 121, 71 L. Ed. 303, 314 (1926) ("[B]efore the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.") (citations omitted).
The North Carolina Supreme Court held in Dobbins that although individuals have "the right to travel upon the public streets of a city" as protected by the due process clause, this freedom may be regulated "when reasonably deemed necessary to the public safety, by laws reasonably adapted to the attainment of that objective." Dobbins, 277 N.C. at 497, 178 S.E.2d at 456. The Court balances the police power of the State with the right to travel
by the process of locating many separate points on either side of the line. So long as this Court sits, it will be engaged in that process, but it is not necessary or appropriate in the present instance to attempt to draw sharply, throughout its entire length, the line between the right of the individual to travel and the authority of the State to limit travel.
Id. at 497-98, 178 S.E.2d at 457. Here, as in Dobbins, the ordinance falls on the side of a reasonable restriction.
We also note that "[a] facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully." United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697, 707 (1987). "The presumption is that any act passed by the legislature is constitutional, and the court will not strike it down if [it] can be upheld on any reasonable ground." Ramsey v. Veterans Commission, 261 N.C. 645, 647, 135 S.E.2d 659, 661 (1964). Similarly, "[a] municipal ordinance is presumed to be valid. . . ." Currituck County v. Willey, 46 N.C.App. 835, 836, 266 S.E.2d 52, 53 (quotations and citation omitted).
"[T]he burden is upon the complaining party to show its invalidity or inapplicability. And a municipal ordinance promulgated in the exercise of the police power will not be declared unconstitutional unless it is clearly so, and every intendment will be made to sustain it." Id. Plaintiff is required to show that "`the ordinance does not rest upon any reasonable basis, but is essentially arbitrary;' and `[i]f any state of facts reasonably can be conceived that would sustain the ordinance, the existence of that state of facts at the time the ordinance was enacted must be assumed.'" Id. (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S. Ct. 337, 340, 55 L. Ed. 369, 377 (1911)) (alterations omitted). Here, plaintiff has not met his burden of proof.
Because we find the ordinance to be rationally related to its intended purpose of protecting the health and safety of the citizens of Woodfin, we hold that defendant acted within its delegated police power to enact and enforce an ordinance restricting sex offenders from entering Woodfin's public parks for the purpose of promoting citizen safety.
The order of the trial court is therefore affirmed.
Affirmed.
Judge TYSON concurs.
Judge GEER dissents by separate opinion.
*624 GEER, Judge, dissenting.
Because I cannot conclude that the trial court properly entered summary judgment upholding the Town of Woodfin's ordinance, I must respectfully dissent. N.C. Gen.Stat. § 160A-174(b) (2005) provides:
A city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when:
(1) The ordinance infringes a liberty guaranteed to the people by the State or federal Constitution;
. . . .
(5) The ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation. . . .
I would hold that the Woodfin ordinance violates both N.C. Gen.Stat. § 160A-174(b)(1) and (b)(5).
Courts' Obligation to Decline to Rule Unnecessarily Upon Constitutional Questions
As an initial matter, I recognize that plaintiff has stipulated that "[b]ut for the question concerning its constitutionality, . . . the ordinance is valid and enforceable." It is, however, a well established principle of jurisprudence that "appellate courts must `avoid constitutional questions, even if properly presented, where a case may be resolved on other grounds.'" James v. Bartlett, 359 N.C. 260, 266, 607 S.E.2d 638, 642 (2005) (quoting Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002)). See also Brooks v. Taylor Tobacco Enterprises, Inc., 298 N.C. 759, 761, 260 S.E.2d 419, 421 (1979) ("It is an established principle of appellate review that this court will refrain from deciding constitutional questions when there is an alternative ground available upon which the case may properly be decided."); Carillon Assisted Living, LLC v. N.C. Dep't of Health and Human Servs., 175 N.C.App. 265, 271, 623 S.E.2d 629, 634 (declining to address dissent's constitutional argument because case could be resolved on purely statutory grounds), disc. review denied, 360 N.C. 531, 633 S.E.2d 676 (2006), and appeal dismissed, 361 N.C. 218, 641 S.E.2d 802 (2007).
This rule applies even when the parties' appeal makes only a constitutional argument. Thus, in State v. Lueders, 214 N.C. 558, 560, 200 S.E. 22, 23 (1938), the defendant had not unlike Mr. Standley here stipulated at the trial level to the facts because "[t]he purpose of [the] appeal, frankly avowed, [was] to obtain a reconsideration of [a prior Supreme Court decision] and to test again the constitutionality of [a statute]." Nonetheless, our Supreme Court declined to do so since "if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of lesser moment, the latter alone will be determined [as][i]t is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Id. at 561, 200 S.E. at 23 (internal quotation marks and citation omitted).
Likewise, in State v. Wallace, 49 N.C.App. 475, 271 S.E.2d 760 (1980), the defendant based his appeal on his contention that a particular statute was unconstitutional on its face. This Court held:
While defendant's argument is intriguing and unique, on the record before us we are not required to reach any constitutional question. A constitutional question will not be passed upon if there is also present some other ground upon which the case may be decided. If the case can be decided on one of two grounds, one involving a constitutional question, the other a question of lesser importance, the latter alone will be determined. The Court will not decide questions of a constitutional nature unless absolutely necessary to a decision of the case.
Id. at 484-85, 271 S.E.2d at 766. The Court then resolved the appeal on a non-constitutional basis because "[a]lthough counsel do not address [that] question, it arises on the face of the record." Id. at 485, 271 S.E.2d at 766. See also In re Byers, 295 N.C. 256, 259, 244 S.E.2d 665, 668 (1978) (per curiam) (although respondent only raised constitutional issue on appeal, Supreme Court determined *625 that appeal could be resolved on nonconstitutional basis and, therefore, "deem[ed] it inappropriate to consider the constitutional issue presented by respondent's appeal"); State v. Muse, 219 N.C. 226, 227, 13 S.E.2d 229, 229 (1941) (although defendant, on appeal, sought to test constitutionality of act under which he was indicted, Supreme Court refused to address constitutional question because appeal could be resolved "on a question of less moment").
Here, based on these principles, I do not believe that a party should be able to effectively force a court to address a constitutional argument by stipulating that an otherwise unenforceable ordinance is enforceable. We should not leapfrog over the preliminary question of whether the Town of Woodfin had authority to adopt this ordinance in the first place simply because the parties invite us to do so. If the ordinance violates N.C. Gen.Stat. § 160A-174(b)(5), then it is "invalid and unenforceable." Greene v. City of Winston-Salem, 287 N.C. 66, 74, 213 S.E.2d 231, 235 (1975). See also State v. Tenore, 280 N.C. 238, 248, 185 S.E.2d 644, 651 (1972) (if town had no authority to adopt ordinance, it would be void, and no one could be punished for violating it).
As a result, any ruling on the constitutionality of the Town's ordinance would be unnecessary and amount merely to an advisory opinion. Yet, our appellate courts "never anticipate questions of constitutional law in advance of the necessity of deciding them, nor venture advisory opinions on constitutional questions." Lueders, 214 N.C. at 560, 200 S.E. at 23. See also State v. Blackwell, 246 N.C. 642, 644, 99 S.E.2d 867, 868 (1957) ("The constitutionality of a statute will not be considered and determined by the Court as a hypothetical question.").
Moreover, an opinion upholding the constitutionality of the ordinance would undoubtedly result in a flurry of enactments of similar ordinances across the State. Because, as I explain below, allowing municipalities and counties to adopt their own ordinances regulating sex offenders would interfere with the comprehensive state and federal legislation in this area, I do not believe we have the luxury to do as the parties urge and blithely move on to the more interesting constitutional issue.
The Ordinance's Interference with the Comprehensive State and Federal Regulation of Sex Offenders
In Craig v. County of Chatham, 356 N.C. 40, 44, 565 S.E.2d 172, 175 (2002), the Supreme Court addressed N.C. Gen.Stat. § 160A-174(b)(5) and the question of how to determine whether the General Assembly "intended to implement statewide regulation in the area, to the exclusion of local regulation." Municipalities have no inherent legislative powers, but rather "are instrumentalities of state government and possess only those powers the General Assembly has conferred upon them." Craig, 356 N.C. at 44, 565 S.E.2d at 175. "In determining if the General Assembly intended to provide statewide regulation to the exclusion of local regulation, we must decide if it has shown a clear legislative intent to provide such a `complete and integrated regulatory scheme.'" Id. at 45, 565 S.E.2d at 176 (quoting N.C. Gen.Stat. § 160A-174(b)(5)).
In undertaking this task, it is immaterial that the General Assembly has not provided an express statement of intent. Instead, "[t]he General Assembly can create a regulatory scheme which, though not expressly exclusory, is so complete in covering the field that it is clear any regulation on the county level would be contrary to the statewide regulatory purpose." Id. at 46, 565 S.E.2d at 176. "[W]e must primarily look to `the spirit of the act [] and what the act seeks to accomplish.'" Id. (second alteration original) (quoting State v. Anthony, 351 N.C. 611, 615, 528 S.E.2d 321, 323 (2000)).
In this case, we are confronted with comprehensive regulation of convicted sex offenders by both the federal government and the State of North Carolina. As our Supreme Court recently noted, Congress enacted legislation in 1994 that conditioned continued federal funding of state law enforcement on state adoption of sex offender registration laws. State v. Bryant, 359 N.C. 554, 559, 614 S.E.2d 479, 482 (2005). This legislation, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act ("the Jacob Wetterling Act"), Pub.L. No. *626 103-322, 108 Stat.2038 (1994) (codified as amended at 42 U.S.C. § 14071 et seq. (2000)), also set minimum standards for the state programs. 42 U.S.C. § 14071(b). See also Bryant, 359 N.C. at 559, 614 S.E.2d at 482. The focus of this legislation was on statewide programs. By 1996, every state, the District of Columbia, and the federal government had enacted a sex offender registration and community notification program. Id.
The Jacob Wetterling Act was followed in 2006 by the Adam Walsh Child Protection and Safety Act, Pub.L. 109-248, 120 Stat. 587 (2006) (codified at 42 U.S.C. § 16901 et seq. (Supp.2007)) ("the Adam Walsh Act"). The Adam Walsh Act states its purpose:
In order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against the victims listed below, Congress in this Act establishes a comprehensive national system for the registration of those offenders.
42 U.S.C. § 16901 (emphasis added). As a condition of receiving certain law enforcement funding, 42 U.S.C. § 16925(a) (Supp. 2007), this Act imposes various obligations on "jurisdictions" with respect to convicted sex offenders. "Jurisdiction" is defined by the Act to mean the states, the District of Columbia, Puerto Rico, and various territories; it does not include local governmental bodies. 42 U.S.C. § 16911(10) (Supp.2007).
In order to meet the Adam Walsh Act's purpose of protecting the safety of the public from sexual predators, states are required, among other things, to make registration information available to the public on websites. 42 U.S.C. § 16918(d) (Supp.2007). They must report information regarding sex offenders to the United States Attorney General, law enforcement agencies, school and public housing agencies, social services entities, and volunteer organizations in which contact with minors or other vulnerable individuals might occur. 42 U.S.C. § 16921(b) (Supp.2007). Compliance may, however, be excused if the United States Attorney General determines that certain provisions would place the state in violation of its own constitution, as determined by a ruling of the state's highest court. 42 U.S.C. § 16925(b)(1).
In addition, Congress has established the Sex Offender Management Assistance Program, 42 U.S.C. § 16926 (Supp.2007), and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking, 42 U.S.C. § 16945 (Supp.2007). Finally, federal regulations prohibit a family's admission to federally assisted housing if a member of the household is required to register as a sex offender on a lifetime basis. See, e.g., 24 C.F.R. §§ 5.856, 882.518, 960.204, and 982.553 (Supp.2007).
In 1995, North Carolina, consistent with the federal legislation, enacted the Amy Jackson Law, 1995 N.C. Sess. Laws ch. 545 (codified as amended at N.C. Gen.Stat. § 14-208.5 et seq. 2005). The General Assembly significantly amended this legislation in 2006. 2006 N.C. Sess. Laws ch. 247.
The General Assembly adopted this legislation for the following purpose:
The General Assembly recognizes that sex offenders often pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is of paramount governmental interest.
The General Assembly also recognizes that persons who commit certain other types of offenses against minors, such as kidnapping, pose significant and unacceptable threats to the public safety and welfare of the children in this State and that the protection of those children is of great governmental interest. Further, the General Assembly recognizes that law enforcement officers' efforts to protect communities, conduct investigations, and quickly apprehend offenders who commit sex offenses or certain offenses against minors are impaired by the lack of information available to law enforcement agencies about convicted offenders who live within the agency's jurisdiction. Release of information about these offenders will further the governmental interests of public safety so long as the information released is rationally related to the furtherance of those goals.
*627 Therefore, it is the purpose of this Article to assist law enforcement agencies' efforts to protect communities by requiring persons who are convicted of sex offenses or of certain other offenses committed against minors to register with law enforcement agencies, to require the exchange of relevant information about those offenders among law enforcement agencies, and to authorize the access to necessary and relevant information about those offenders to others as provided in this Article.
N.C. Gen.Stat. § 14-208.5 (2005). North Carolina's sex offender registration law thus has two goals: (1) to generally protect the safety of the public, and (2) to assist law enforcement agencies.
In order to accomplish these goals, the General Assembly established two registration programs, with the second more stringent program directed at recidivists and sexually violent predators. See N.C. Gen.Stat. § 14-208.6A (2005).[2] As our Supreme Court summarized in Bryant, the "North Carolina Sex Offender and Public Protection Registration Program" requires:
every individual having a reportable conviction as defined by N.C.G.S. § 14-208.6, which includes offenses against minors and "sexually violent offenses," to register as a convicted sex offender with the sheriff of the county in which the person resides. N.C.G.S. § 14-208.7(a). If an individual convicted of such a crime moves to North Carolina "from outside this State, the person shall register within 10 days of establishing residence in this State, or whenever the person has been present in the State for 15 days, whichever comes first." Id. Additionally, non-resident workers and students who have reportable convictions or are required to register as sex offenders in their resident state must also register as a convicted sex offender in the county in which they are employed or attend school. N.C.G.S. § 14-208.7(a1).
359 N.C. at 561, 614 S.E.2d at 483-84. The legislation requires the convicted sex offender to notify the sheriff of any change of address or status. N.C. Gen.Stat. § 14-208.9 (2005). There is a semiannual verification of that information, N.C. Gen.Stat. § 14-208.9A (2005), or a 90-day verification for more serious offenders, N.C. Gen.Stat. § 14-208.24 (2005). Violations of the registration requirements constitute a Class F felony. N.C. Gen.Stat. § 14-208.11 (2005).
The sheriff is required to obtain certain information from the registering sex offenders, including a current photograph, and for recidivists and sexually violent predators, additional information such as any treatment received. N.C. Gen.Stat. §§ 14-208.7, 14-208.22 (2005). Much of this information then becomes public record and is made available over the internet. N.C. Gen.Stat. §§ 14-208.10, 14-208.14 (2005).
In addition to the registration and notification requirements, the General Assembly has imposed geographical restrictions on convicted sex offenders. Under N.C. Gen.Stat. § 14-208.16(a) (Supp.2006), "[a] registrant under this Article shall not knowingly reside within 1,000 feet of the property on which any public or nonpublic school or child care center is located." A violation of this restriction is a Class G felony. N.C. Gen.Stat. § 14-208.16(f).[3]
Further, the General Assembly has limited the employment of convicted sex offenders and the ability of sex offenders to be in the presence of minors:
(a) It shall be unlawful for any person required to register under this Article to work for any person or as a sole proprietor, with or without compensation, at any place where a minor is present and the *628 person's responsibilities or activities would include instruction, supervision, or care of a minor or minors.
(b) It shall be unlawful for any person to conduct any activity at his or her residence where the person:
(1) Accepts a minor or minors into his or her care or custody from another, and
(2) Knows that a person who resides at that same location is required to register under this Article.
N.C. Gen.Stat. § 14-208.17(a), (b) (Supp. 2006). A violation of these restrictions is a Class F felony. N.C. Gen.Stat. § 14-208.17(c).
Finally, the General Assembly has directed that "[t]he Department of Correction shall establish a sex offender monitoring program that uses a continuous satellite-based monitoring system" to monitor sex offenders classified as a sexually violent predator or a recidivist and sex offenders convicted of an aggravated offense as defined in N.C. Gen. Stat. § 14-208.6. N.C. Gen.Stat. § 14-208.40(a) (Supp.2006). Monitoring shall be for the person's natural life unless the requirement is terminated pursuant to N.C. Gen.Stat. § 14-208.43(a) (Supp.2006).[4] The monitoring must provide (1) "[t]ime-correlated and continuous tracking of the geographic location of the subject using a global positioning system based on satellite and other location tracking technology," and (2) "[r]eporting of subject's violations of prescriptive and proscriptive schedule or location requirements." N.C. Gen.Stat. § 14-208.40(c). Reporting may range from once a day to "near real-time." N.C. Gen.Stat. § 14-208.40(c)(2). A failure to enroll in this program when required to do so constitutes a Class F felony, while tampering with the monitoring device is a Class E felony. N.C. Gen.Stat. § 14-208.44 (Supp.2006).
In conjunction with this specific program related to convicted sex offenders, the General Assembly has also set out special conditions of probation and post-release supervision for sex offenders. A defendant convicted of a reportable conviction under N.C. Gen.Stat. § 14-208.6(4) (2005) must, among other things, participate in evaluation and treatment as ordered by the court or the Post-Release Supervision and Parole Commission ("the Commission"); not reside in a household with any minor child if the offense involved evidence of sexual abuse of a minor; and satisfy any other conditions determined by the court or the Commission to be reasonably related to the offender's rehabilitation or reintegration into society. N.C. Gen.Stat. §§ 15A-1343(b)(2), 15A-1368.4(b1) (2005).
In enacting their respective legislation, both Congress and our General Assembly recognized that they were required to balance the interest in public safety with individual rights that even a sex offender still possesses. Thus, Congress recognized that state constitutions might preclude some restrictions, and the General Assembly acknowledged that release of sex offender information must be "rationally related to the furtherance of [the] goals" of public safety. N.C. Gen.Stat. § 14-208.5.
As the Supreme Court stated in Craig, in deciding the applicability of N.C. Gen.Stat. § 160A-174(b)(5), we must "consider the breadth and scope of the applicable general statutes in determining whether the overall regulatory scheme was designed to be preemptive." 356 N.C. at 49, 565 S.E.2d at 178. Here, we have a federal program that states it is a "comprehensive national system," 42 U.S.C. § 16901, and that anticipates regulation by the states of convicted sex offenders. North Carolina's regulatory scheme in turn not only provides for registration and public identification of sex offenders on the internet with pictures and all pertinent information, but also restricts employment and location of residences and requires disclosure of otherwise private information to authorities. Perhaps most significantly, the legislation requires constant satellite monitoring of the most severe offenders with the result that, in North Carolina, *629 it appears that law enforcement may track every step the sex offender takes. Moreover, courts, probation officers, and the Commission may impose further restrictions as necessary given the circumstances of the particular offender.
Local regulation would result in different regulations of sex offenders by city and by county. While the Town has chosen to bar sex offenders from parks, other local governments may bar them from libraries or other public buildings. Municipalities may attempt to impose residential or employment restrictions beyond those provided by state law or the offender's actual sentence, probation conditions, or Commission restrictions.
In holding that municipalities could not adopt their own employment discrimination ordinances, our Supreme Court noted that "[u]pholding the particularized laws in this case could lead to a balkanization of the state's employment discrimination laws, creating a patchwork of standards varying from county to county" with the end result a "`conglomeration of innumerable discordant communities.'" Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170, 189, 581 S.E.2d 415, 428 (2003) (quoting Idol v. Street, 233 N.C. 730, 732, 65 S.E.2d 313, 315 (1951)). The same would be true here.
As our Supreme Court recognized in Bryant, our sex offender regulatory scheme depends in part on the fact that sex offenders cannot credibly claim ignorance of the law regarding restrictions imposed upon them. 359 N.C. at 568-69, 614 S.E.2d at 488-89. With the "balkanization" of regulation that will inevitably stem from a decision upholding the ordinance in this case, it will be difficult for anyone to know what "the law" is in North Carolina regarding convicted sex offenders. Moreover, the balance of public safety versus individual rights will vary in each municipality or county. See Craig, 356 N.C. at 48, 565 S.E.2d at 177-78 (noting the concern that rights would vary in different counties and upset the balance reached by General Assembly between economic interests and private property rights).
Further, if local regulation is allowed, one municipality could, in effect, shift the burden and risk of sex offenders from its geographical confines to other municipalities. Indeed, in this case, with the passage of the ordinance, plaintiff began looking at parks elsewhere in Buncombe County. This factor supports precluding local regulation of convicted sex offenders.
Finally, in a dramatic intrusion on the justice system, the conditions imposed upon a sex offender after release from custody will no longer be established by the court in imposing his sentence or setting the conditions for probation or by the Commission. Each local government may now weigh in on the appropriate conditions to be imposed upon sex offenders within that government's jurisdiction. This cannot be the law. See State v. Burnett, 93 Ohio St. 3d 419, 431-32, 755 N.E.2d 857, 868 (2001) (in holding that city lacked authority to enact an ordinance barring people convicted of a drug-related offense from a specified zone, stating that "there is no authority for the proposition that a municipality may, by way of ordinance, add a penalty for violation of a state criminal statute that is not otherwise provided for by the General Assembly"), cert. denied, 535 U.S. 1034, 122 S. Ct. 1790, 152 L. Ed. 2d 649 (2002).
In short, I believe that the State's regulation of convicted sex offenders is "so comprehensive in scope that the General Assembly must have intended that [the statutes] comprise a `complete and integrated regulatory scheme' on a statewide basis, thus leaving no room for further local regulation." Craig, 356 N.C. at 50, 565 S.E.2d at 179 (quoting N.C. Gen.Stat. § 160A-174(b)(5)). See Greene, 287 N.C. at 75-76, 213 S.E.2d at 237 (holding, based on "contextual reading of the relevant statutes," that city ordinance requiring sprinklers was "invalid and unenforceable" in light of General Assembly's legislation regarding the State Building Code). See also Elwell v. Township of Lower, 2006 WL 3797974, *11-13 (N.J.Super.L. Dec. 22, 2006) (holding that New Jersey's Megan's law, setting forth a system of registration for sex offenders, preempted town ordinance prohibiting registered sex offenders from residing or loitering within 500 feet of any school, park, playground, recreation area, or day care facility because state law constituted *630 comprehensive legislation and uniformity is essential regarding post-conviction treatment of sex offenders). Accordingly, I would reverse the trial court's order granting summary judgment to the Town and would direct entry of summary judgment in favor of plaintiff on the grounds that the ordinance violates N.C. Gen.Stat. § 160A-174(b)(5).
Inadequacy of Evidentiary Record Submitted on Constitutional Question
If we do not address the Town's lack of authority to adopt this ordinance, I cannot overlook the sketchiness of the record presented to the trial court and this Court with respect to the constitutional issue. Our Supreme Court has held that "constitutional analysis always requires thorough examination of all relevant facts." Anderson, 356 N.C. at 416, 572 S.E.2d at 102. Accordingly, "[i]f the factual record necessary for a constitutional inquiry is lacking, an appellate court should be especially mindful of the dangers inherent in the premature exercise of its jurisdiction." Id. at 416-17, 572 S.E.2d at 102 (internal quotation marks omitted). Even if we disregard the alternative statutory ground, I do not believe, under Anderson, that the factual record in this case is sufficient to resolve the constitutional issues raised by the parties.
While debating vigorously whether the ordinance is constitutional, the parties rely almost exclusively on various publications. These materials are simply included within the record on appeal unsupported by any expert testimony, such as an affidavit or a deposition. Some of the materials are printed from the internet with no explanation as to the identity of the source.
Not just any material qualifies for consideration on a motion for summary judgment. A party cannot simply submit documents supporting his or its position without considering the Rules of Evidence. It is well established that "[o]n a motion for summary judgment the court may consider evidence consisting of affidavits, depositions, answers to interrogatories, admissions, documentary materials, facts which are subject to judicial notice, and any other materials which would be admissible in evidence at trial." Huss v. Huss, 31 N.C.App. 463, 466, 230 S.E.2d 159, 161-62 (1976) (emphasis added). See also Kessing v. Nat'l Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971) ("Evidence which may be considered under Rule 56 includes admissions in the pleadings, depositions on file, answers to Rule 33 interrogatories, admissions on file whether obtained under Rule 36 or in any other way, affidavits, and any other material which would be admissible in evidence or of which judicial notice may properly be taken."); Deer Corp. v. Carter, 177 N.C.App. 314, 325, 629 S.E.2d 159, 168 (2006) ("Our Supreme Court has held that in considering a Rule 56 motion for summary judgment, a trial court may consider material which would be admissible in evidence at trial." (internal quotation marks omitted)); Chicora Country Club, Inc. v. Town of Erwin, 128 N.C.App. 101, 111, 493 S.E.2d 797, 803 (1997) (holding that party's "attempt to amend the petition" was not material that would have been admissible in evidence and, therefore, trial court was not obliged to consider it when ruling upon motion for summary judgment).
Here, both parties blithely disregard the Rules of Evidence. Since "`material offered which set[s] forth facts which would not be admissible in evidence should not be considered when passing on the motion for summary judgment,'" Strickland v. Doe, 156 N.C.App. 292, 295, 577 S.E.2d 124, 128 (quoting Borden, Inc. v. Brower, 17 N.C.App. 249, 253, 193 S.E.2d 751, 753, rev'd on other grounds, 284 N.C. 54, 199 S.E.2d 414 (1973)), disc. review denied, 357 N.C. 169, 581 S.E.2d 447 (2003), we and the trial court cannot similarly disregard the question whether these articles and internet publications would be admissible at trial. See Smith v. Indep. Life Ins. Co., 43 N.C.App. 269, 276, 258 S.E.2d 864, 868 (1979) (exhibit that constituted hearsay "could not be considered by the trial court on motion for summary judgment").[5]
*631 It cannot be disputed that the parties' articles and internet materials constitute hearsay. See N.C.R. Evid. 801(c) ("`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). Both parties have submitted these publications to prove "the facts" set forth within them. See also Hickok v. G.D. Searle & Co., 496 F.2d 444, 446 (10th Cir.1974) ("[I]t is well established that medical textbooks, treatises and professional articles are not freely admissible in evidence to prove the substantive or testimonial facts stated therein, since they are subject to the hearsay rule."); Stang-Starr v. Byington, 248 Neb. 103, 109, 532 N.W.2d 26, 30 (1995) ("When offered to prove the truth of matters asserted in them, learned writings, such as treatises, books, and articles regarding specialized areas of knowledge, are clearly hearsay.").
Our North Carolina appellate courts have held that such articles are admissible only under the learned treatise exception to the hearsay rule set forth in Rule 803(18). See State v. Lovin, 339 N.C. 695, 714, 454 S.E.2d 229, 240 (1995) (holding that because professional article was not shown to be learned treatise under N.C.R. Evid. 803(18), it was not admissible as substantive evidence); Ferguson v. Williams, 101 N.C.App. 265, 275, 399 S.E.2d 389, 395 (holding that excerpt from Physician's Desk Reference could be admitted only as a learned treatise), disc. review denied, 328 N.C. 571, 403 S.E.2d 510 (1991). Rule 803(18) provides that the following is not excluded as hearsay:
To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
(Emphasis added.) In sum, the party offering the publication must demonstrate that it is a "reliable authority" through testimony or by judicial notice.
Neither party has made any attempt to establish through testimony that the materials fall within Rule 803(18). Compare Sterling v. Gil Soucy Trucking, Ltd., 146 N.C.App. 173, 179-80, 552 S.E.2d 674, 678 (2001) (holding that article was properly admitted because expert witness testimony established article as reliable scientific authority). Nor is there any basis for a court to take judicial notice of the publications' reliability. Simply because a statistical analysis has been generated by the federal government as is true of some of the materials does not require the conclusion that experts in the field consider that analysis reliable or good science. Articles by the Justice Department are subject to critique by experts just like studies by scientists associated with universities or private research institutions.[6]
Alternatively, as the Tenth Circuit has pointed out, "expert witnesses are sometimes allowed to testify as to hearsay matters by discussing published materials, but this is allowed . . . solely to establish the basis for the expert's opinion, and not to establish the veracity of the hearsay matters themselves." Hickok, 496 F.2d at 447 (internal citation omitted). See also N.C.R. Evid. 703 ("The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence."); State v. Oliver, 85 N.C.App. 1, 13-14, 354 S.E.2d 527, 534-35 (doctor allowed to testify to body of literature accepted by her profession), disc. review denied, 320 N.C. 174, 358 S.E.2d 64 (1987). This Court has held, however, that a study by the American Medical Association and a press release by the North Carolina Department of Health and Human Services *632 were not admissible in connection with a summary judgment motion when they were attached only to a lay witness' affidavit and were not relied upon for purposes of an expert opinion. See Duncan v. Cuna Mut. Ins. Soc'y, 171 N.C.App. 403, 408, 614 S.E.2d 592, 596 (2005). Here, we do not even have a lay witness addressing the materials.
Because of the parties' failure to establish the admissibility of these materials, they should not be considered on summary judgment. See, e.g., Miskin v. Baxter Healthcare Corp., 107 F. Supp. 2d 669, 674 (D.Md.1999) (plaintiff's failure to demonstrate that two unauthenticated medical treatises qualified as learned treatises "ma[de] the treatises unauthenticated, inadmissible hearsay, which cannot be considered during summary judgment"), aff'd, 213 F.3d 632 (4th Cir.2000); Joiner v. General Elec. Co., 864 F. Supp. 1310, 1317 n. 14 (N.D.Ga.1994) (when plaintiff relied upon scientific publications to establish particular fact, but failed to present expert testimony that those materials constituted learned treatises under Rule 803(18), plaintiff failed to present admissible evidence on that point for purpose of summary judgment), rev'd, 78 F.3d 524 (11th Cir.1996), rev'd, 522 U.S. 136, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997).
Even apart from the question of the admissibility of the materials, the lack of expert testimony is troubling. The materials contained in the record appear to represent statistical analyses and surveys of studies conducting statistical analyses. As Benjamin Disraeli, the British Prime Minister, reportedly proclaimed: "There are three kinds of lies: lies, damned lies, and statistics." The United States District Court for the District of South Carolina has stated the idea more tactfully: "It is undoubtedly true that statistical evidence is inherently malleable and subject to careful scrutiny." Lott v. Westinghouse Savannah River Co., Inc., 200 F.R.D. 539, 546 (D.S.C.2000). For that reason, the Fourth Circuit has held, with respect to employment discrimination claims, "if a plaintiff offers a statistical comparison without expert testimony as to methodology or relevance to plaintiff's claim, a judge may be justified in excluding the evidence." Carter v. Ball, 33 F.3d 450, 457 (4th Cir.1994). See also Lott, 200 F.R.D. at 546 ("The general rule is that statistical evidence must be supported by expert testimony.").
Yet, in this case, no expert exists to address the reliability or meaning of these studies. "While all studies have flaws, some have more flaws than others. Study after study has found that many articles in the most prestigious medical journals are replete with shaky statistics and lack of any explanation of . . . critical matters. . . ." Victor Cohn, News & Numbers: A Guide to Reporting Statistical Claims and Controversies in Health and Other Fields 10-11 (1989).
In this case, for example, both parties rely heavily upon an article from the United States Department of Justice: Patrick A. Langan, Ph.D., Erica L. Schmitt, and Matthew R. Durose, Recidivism of Sex Offenders Released from Prison in 1994 (Nov.2003). The parties ask us to accept this publication's reliability and authority on faith. I cannot do that. For example, this publication claims that since no sampling was used to select sex offenders for the study, "percentages in this report for sex offenders were not subject to sampling error." Id. at 39. Because, however, the text admits that not all sex offenders released were used in the review and because the analysis focuses only on sex offenders released in 1994 in 15 states, there was in fact some sampling, and expert testimony is necessary to evaluate whether the publication's assertion of no sampling error is reliable. In addition, the sample of non-sex offenders used appears to be significantly larger than the total number of sex offenders reviewed a fact that an expert witness must assess to determine whether it undermines the validity of the inferences drawn. Finally, the publication asserts broadly and without further explanation that "[a]ll differences discussed were statistically significant at the .05 level." Id. at 39. A basic principle of statistics, however, states that "[s]tatistical significance is not the same thing as practical significance." David S. Moore and George P. McCabe, Introduction to the Practice of Statistics 474 (2d ed.1993). There is, however, no expert witness for either party to explain *633 the practical significance of the Justice Department report.
Certainly, the practical import of the parties' publications for the ordinance at issue in this case cannot be readily apparent to a lay person. As the United States Supreme Court has cautioned: "[S]tatistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 340, 97 S. Ct. 1843, 1856-57, 52 L. Ed. 2d 396, 418 (1977). I would hold that the evidence presented below does not answer a fundamental question: What is the significance of these materials none of them specifically addressing an ordinance such as the one at issue with respect to the constitutional issues at hand?
We might conjecture or assume, but those are not bases for granting summary judgment as to the constitutionality of an ordinance. Under such circumstances, our courts have required expert testimony to guide the trier of fact. See, e.g., Anderson v. Hous. Auth. of Raleigh, 169 N.C.App. 167, 172, 609 S.E.2d 426, 429 (2005) ("Where a layperson can do no more than speculate as to the cause of a physical condition, the medical opinion of an expert is required to show causation."); Pitts v. Nash Day Hosp., Inc., 167 N.C.App. 194, 204, 605 S.E.2d 154, 160 (2004) ("Generally, expert testimony is required when the standard of care and proximate cause are matters involving highly specialized knowledge beyond that of laymen."), aff'd per curiam, 359 N.C. 626, 614 S.E.2d 267 (2005).
Although I have an undergraduate degree in sociology that included a strong emphasis on empirical research, I would not presume to be able to assess the scientific reliability or meaning of the limited studies presented by the parties. Nor do I have any basis for determining their practical significance for the constitutional issues involved in this case. These issues are of importance to citizens everywhere. They should not be resolved on a factual record as inadequate as the one presented in this case. I would hold that the evidence submitted by both parties for the most part inadmissible at trial is insufficient to resolve the case on summary judgment and remand for further proceedings during which the parties can build a proper record. In this appeal, we are presented with precisely the "dangers" of which the Supreme Court warned in Anderson.
On the Current Record, the Ordinance Cannot Survive Strict Scrutiny
In any event, I cannot agree with the majority opinion's analysis of the constitutional issues. Mr. Standley initially argues that the ordinance violates his right to travel. While courts across the country have split on the question whether the right to engage in intrastate travel is a fundamental constitutional right, the North Carolina Supreme Court has already answered that question.
In State v. Dobbins, 277 N.C. 484, 496, 178 S.E.2d 449, 456 (1971), our Supreme Court considered a curfew imposed by the City of Asheville when it "was faced with an imminent threat of widespread burning and other destruction of property, public and private." The Court specifically held that "the right to travel upon the public streets of a city is a part of every individual's liberty, protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and by the Law of the Land Clause, Article I, § 17, of the Constitution of North Carolina." Id. at 497, 178 S.E.2d at 456. See also id. at 497, 178 S.E.2d at 457 (holding that the principles governing international travel "apply also to the effect of the Fourteenth Amendment upon state imposed restraints on intracity travel").
Curiously, the majority does not address Dobbins in discussing Mr. Standley's substantive due process claim, but rather relies on decisions from other jurisdictions. Only the Supreme Court, however, may overrule its own decisions.
The Town, on the other hand, suggests that Dobbins should be limited to public streets. Public parks are, however, frequently the heart of our communities and cannot reasonably be separated from other walkways. As the United States Supreme Court stated in Hague v. Comm. for Indus. *634 Org., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939), in striking down an ordinance:
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.
Id. at 515-16, 59 S.Ct. at 964, 83 L.Ed. at 1436-37. I can perceive no basis for holding that Dobbins does not apply to city parks as well as city streets.
The Town also argues that no "travel" is implicated because persons are not likely to be walking through the parks to get from one place to another. I know of no authority that supports such a limited view of "travel." Indeed, as the Sixth Circuit has held, the right to travel locally "is fundamentally one of access." Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir.2002), cert. denied, 539 U.S. 915, 123 S. Ct. 2276, 156 L. Ed. 2d 130 (2003). The Ohio Supreme Court has explained:
Every citizen of this state, much like the citizens of this Nation, enjoys the freedom of mobility not only to cross our borders into our sister states, but also to roam about innocently in the wide-open spaces of our state parks or through the streets and sidewalks of our most populous cities. This freedom of mobility is a tradition extending back to when the first settler crossed into what would eventually become this great state, and it is a tradition no Ohioan would freely relinquish.
Burnett, 93 Ohio St.3d at 428, 755 N.E.2d at 865 (emphasis added). Mr. Standley, who is disabled, has been denied his access to the Town's parks and has been prohibited from "roam[ing] innocently," id., through those parks accompanied by his mother. The ordinance, therefore, implicates his fundamental right to travel.
In Dobbins, the Supreme Court confirmed that it is for the courts to determine "the line between the right of the individual to travel and the authority of the State to limit travel." 277 N.C. at 498, 178 S.E.2d at 457. The Court acknowledged that the right to intracity travel "may be regulated, as to the time and manner of its exercise, when reasonably deemed necessary to the public safety, by laws reasonably adapted to the attainment of that objective." Id. at 497, 178 S.E.2d at 456. Nevertheless, "the right to travel on the public streets is a fundamental segment of liberty and, of course, the absolute prohibition of such travel requires substantially more justification than the regulation of it by traffic lights and rules of the road." Id. at 499, 178 S.E.2d at 457-58 (emphasis added).
The ordinance at issue in this case is not a mere time and manner regulation of the right to travel, but rather is an "absolute prohibition" against registered sex offenders traveling into town parks. The question is not, therefore, whether the ordinance is "reasonably deemed necessary to the public safety." Id. at 497, 178 S.E.2d at 456. Instead, we must apply strict scrutiny in reviewing the ordinance. "Ordinarily, where a fundamental liberty interest protected by the substantive due process component of the Fourteenth Amendment is involved, the government cannot infringe on that right `unless the infringement is narrowly tailored to serve a compelling state interest.'" Johnson, 310 F.3d at 502 (quoting Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772, 788 (1997)). See also Yeakle v. City of Portland, 322 F. Supp. 2d 1119, 1128 (D.Or.2004) ("Where an ordinance impairs a fundamental right, in order to pass constitutional muster, the government's objective must be compelling and the relation between that objective and the means must be necessary."); Burnett, 93 Ohio St.3d at 428, 755 N.E.2d at 865-66 ("Any deprivation of the right to travel, therefore, must be evaluated under a compelling-interest *635 test. Accordingly, the legislation must be narrowly tailored to serve a compelling governmental interest." (internal citation omitted)).
Here, Mr. Standley does not dispute that the Town has a compelling interest in ensuring the safety of its citizens from sexual predators. The question before this Court is whether the record establishes that the ordinance is narrowly tailored to serve that interest. The record, however, contains no evidence at all supporting this second prong.
The Town relies exclusively on a single point: that there is evidence that sex offenders have a higher rate of recidivism and are more likely to commit another sex offense than non-sex offenders. The Town proclaims that sex offenders are "four times" as likely to commit another sex offense than a non-sex offender. It then contends that it adopted the ordinance in order to protect the public in light of this substantial risk from sex offenders. There is, however, a glaring gap in the Town's argument and proof.
The record contains no evidence that this particular ordinance serves that interest of protecting the public. The Town admits that no sex offenses committed by a registered sex offender have occurred in any of its parks.[7] In addition, the Town has presented no evidence that sex offenses are likely to occur in parks. Indeed, the only evidence in the record on this point is contrary to the need for the Town's ordinance. In another United States Department of Justice report Lawrence A. Greenfield, Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault, U.S. Department of Justice (Feb.1997) the Bureau of Justice Statistics reported that "[n]early 6 out of 10 rape/sexual assault incidents were reported by victims to have occurred in their own home or at the home of a friend." Id. at 3. Another 10% of victims stated the crime occurred on a street away from home and 7.3% identified the site of the crime as a parking lot/garage. Parks were not separated out, but "[a]ll other locations" accounted for only 26.1% of the victimizations. Id. at 34. The record contains no evidence at all that sex offenses occur in parks with sufficient frequency to render the ban in this case an effective means of protection from sexual predators.
In addition, the same report states that "[a]bout two-thirds of rapes/sexual assaults were found to occur during the 12 hours from 6 p.m. to 6 a.m." Id. at 3. Only 33% occurred between the hours of 6:00 a.m. to 6:00 p.m. Id. Significantly, the parties have stipulated that the park at issue in this case opens at sunrise and closes at sunset. The Town's evidence thus establishes that roughly one-third of rapes and sexual assaults occur during this time frame. When this evidence is considered in conjunction with the Town's evidence that only some very small unspecified percentage of rapes/sexual assaults occur in parks, then there is no intellectually honest basis for stating that the Town's ban on access to parks bears any significant relationship to the protection of citizens from sexual predators. See Waters v. Barry, 711 F. Supp. 1125, 1139 (D.D.C.1989) (in holding juvenile curfew unconstitutional, pointing out that the record indicated that curfew bore "little relation to the nature of the problem," since evidence showed that half of juvenile homicides occurred during non-curfew hours and half occurred in juvenile's home, suggesting that measures such as the curfew "are simply not so closely related to the protection of minors, or to curing the city's problems with drugs and violence, as to justify the infringement of constitutional interests").
With respect to the efficacy of a park ban, the Town has not pointed to national statistics, the experiences of other municipalities, or even anecdotal evidence, such as the high profile cases reported in the media.[8]Compare Nunez v. City of San Diego, 114 F.3d 935, 947-48 (9th Cir.1997) (city presented several statistical reports demonstrating that juvenile curfew is a solution to rising juvenile crime and victimization). Further, the scary *636 "four times as likely" to re-offend statistic that forms the entire basis for the Town's argument provides no support for the ordinance when actually examined. That figure comes from the Recidivism of Sex Offenders Released from Prison in 1994 publication prepared by the U.S. Department of Justice Bureau of Justice Statistics. That report reviewed data relating to the recidivism of sex offenders released from state prisons in 15 states, including North Carolina, of which there were 9,691. Langan, supra at 1. During the same time frame, the 15 states released a total of 272,111 prisoners altogether. Id.
The portion of the report relied upon by the Town states in full:
Compared to non-sex offenders released from State prisons, released sex offenders were 4 times more likely to be rearrested for a sex crime. Within the first 3 years following their release from prison in 1994, 5.3% (517 of the 9,691) of released sex offenders were rearrested for a sex crime. The rate for the 262,420 released non-sex offenders was lower, 1.3% (3,328 of 262,420).
Id. (emphasis added). As discussed above, the practical significance of these results should be addressed in the first instance by expert testimony. Nevertheless, it still appears that, since there are far more non-sex offenders than there are sex offenders and the percentages are so very low, of the few sex offenses that might occur in one of the Town's parks, the offender would more likely be not registered as a sex offender. There were only 517 released sex offenders committing a sex crime while there were 3,328 non-sex offenders committing a sex crime. Indeed, if we accept the Town's flawed analysis, we could boldly assert although statisticians would surely cringe that it is six times more likely that a given sexual assault would be committed by a non-sex offender. Of course, this highlights yet again the need for expert testimony.
The parties have submitted 204 pages of publications. I have reviewed every single page. Nowhere is there even a hint or suggestion that barring registered sex offenders from parks would protect the public's safety to any significant extent. "To be narrowly tailored, there must be an evidentiary nexus between a law's purpose and effect." State v. J.D., 86 Wash.App. 501, 508, 937 P.2d 630, 634 (1997) (striking down curfew ordinance when record failed to show any nexus between curfew and juvenile crime rates). See also Ass'n for Advancement of the Mentally Handicapped, Inc. v. City of Elizabeth, 876 F. Supp. 614, 623 (D.N.J.1994) (ordinance not justified even though it was directed at protecting community from harm because conditions in ordinance did not serve that interest in theory and in practice). The record in this case shows no evidentiary basis for concluding that the ordinance will have the effect of advancing the goal of protecting citizens from sexual predators.
I find the reasoning of the Sixth Circuit in Johnson and the Ohio Supreme Court in Burnett compelling. Each case considered Cincinnati's ordinance excluding people convicted of drug offenses from entering areas designated as drug-free zones. After holding that the City had a compelling interest in reducing drug abuse and drug-related crime an interest comparable to the one at issue in this case the Sixth Circuit concluded that the City had failed to present evidence that its ordinance was narrowly tailored to serve that interest. Johnson, 310 F.3d at 505. The Court pointed out that the ordinance excluded a person "without any particularized finding that [he or she] is likely to engage in recidivist drug activity" in the drug-free zone and prohibited that person "from engaging in an array of . . . wholly innocent conduct. . . ." Id. at 503. To support this exclusion, the City "relie[d] on only general evidence that individuals arrested and/or convicted for drug activity in [the drug-free zone] typically return to the neighborhood and repeat their offenses." Id. In short, Cincinnati defended its exclusionary ordinance on the same basis that the Town does here.
The Sixth Circuit acknowledged that "[w]e, of course, `do not demand of legislatures scientifically certain criteria of legislation.'" Id. at 504 (quoting Ginsberg v. New York, 390 U.S. 629, 642-43, 88 S. Ct. 1274, 1282, 20 L. Ed. 2d 195, 205-06 (1968)). Nevertheless, *637 "when constitutional rights are at issue, strict scrutiny requires legislative clarity and evidence demonstrating the ineffectiveness of proposed alternatives." Id. The court stressed: "In considering whether a government regulation is narrowly tailored, it is not enough that the regulation achieves its ostensible purpose, it must do so without unnecessarily infringing upon constitutionally protected rights." Id. After noting that the city had only made conclusory claims that other efforts at battling drug crime were unsuccessful, the court concluded:
It is, of course, possible that a regulation like the Ordinance might be the narrowest method of addressing a seemingly uncontrollable drug and crime epidemic. But without some affirmative evidence that there is no less severe alternative, we cannot conclude that the Ordinance, in its present form, survives constitutional scrutiny.
Id. at 505.
The Ohio Supreme Court similarly pointed out that the ordinance "encroaches upon a substantial amount of innocent conduct and is not, therefore, narrowly tailored." Burnett, 93 Ohio St.3d at 430, 755 N.E.2d at 867. After reciting a number of innocent activities which were, as a result, now forbidden with respect to the people excluded from the drug-free zone, the court observed: "None of these activities are performed with illegal intention, yet a criminal penalty attaches to them without any evidence of illegality, or improper purpose, or a finding that the person is likely to commit future drug offenses." Id. The court, therefore, held that while supported by a compelling interest, the ordinance was not narrowly tailored to address that interest since "[a] narrowly tailored ordinance would not strike at an evil with such force that constitutionally protected conduct is harmed along with unprotected conduct." Id.
Here, even if we could assume that Woodfin's ordinance might, to some limited extent, achieve its purpose of protecting its citizens from sexual predators, there has been even less of a showing of narrow tailoring than that presented by Cincinnati. The ordinance precludes registered sex offenders from engaging in a host of innocent activities, some of which would be entitled to their own constitutional protection, such as First Amendment activities or assembling with the public in a park for the Town's Labor Day festivities. In contrast to Cincinnati, the Town here makes no attempt to argue that other alternative, less restrictive means would be ineffective to meet its interest in public safety. Indeed, the record contains no evidence that other alternatives were considered at any time.
Other alternatives do in fact exist. For example, the Town could ban individual sex offenders based on conduct suggesting a risk of re-offending in the park. See, e.g., Brown v. City of Michigan City, 462 F.3d 720, 734 (7th Cir.2006) (banning specific sex offender from park when he had been witnessed watching patrons of park through binoculars); Doe v. City of Lafayette, 377 F.3d 757, 773 (7th Cir.2004) ("The City has banned only one child sex offender, Mr. Doe, from the parks, and they have banned Mr. Doe only because of his near-relapse in January of 2000. . . ."). The Town has also not considered the possibility of requiring a permit for registered sex offenders to enter the parks; of banning only those sex offenders most likely to re-offend, such as those required to register under the North Carolina Sexually Violent Predator Registration Program; of banning only persons convicted of certain types of sexual offenses; or of limiting the ban only to parks frequented by unaccompanied minors.[9] Each of these options would be less restrictive than the comprehensive ban adopted by the Town.[10]
Thus, there is no basis in the record for concluding that this ordinance is narrowly *638 tailored to serve the Town's compelling governmental interest. See Waters, 711 F.Supp. at 1140 (in striking down juvenile curfew adopted to prevent crime, holding that "[b]ecause neither logic or [sic] the record permit the conclusion that the classification contained in the Act is narrowly tailored to achieve its expressed objectives, the Court concludes that the Act violates the equal protection component of the Fifth Amendment"). Even under a rational basis analysis, "vague, undifferentiated fears" regarding a particular group cannot support an ordinance. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 449, 105 S. Ct. 3249, 3259, 87 L. Ed. 2d 313, 326 (1985) (discussing ordinance as related to the mentally retarded).
We cannot simply say that conventional wisdom or commonsense suggests that the ordinance is needed. Not infrequently, the genesis of widely-held beliefs is fear not grounded in reality or science, but rather propogated by collective terror fueled by television or the internet. We cannot strip a whole group of people of a fundamental right based not on their individual behavior, but rather based simply on a desire to be seen as taking action to respond to the public's fear especially when there is only the "belief" that such action might possibly make the community a little bit safer. If the record in this case is sufficient to uphold the Town's ordinance, we are indeed confronted with a slippery slope. Will municipalities next be allowed to bar other groups feared at times by the public such as the mentally ill or handicapped, the homeless, gays, or people of middle eastern descent because of the possibility that some individual members of those groups might in the future engage in unlawful conduct?
Nothing in Dobbins suggests that the ordinance is constitutional. The Supreme Court stressed: "We do not have before us a prolonged curfew, imposed by an unduly fearful or arbitrary official upon a serene and peaceful city engaged in its normal pursuits. We have before us a temporary prohibition of travel in a city faced with a clear and present danger of violent upheaval, accompanied by widespread destruction of property and personal injury." 277 N.C. at 499, 178 S.E.2d at 458. The Court noted that the state and federal constitutions did not require the City of Asheville to wait to act until fires had been ignited and rioting commenced. Id. at 500, 178 S.E.2d at 458. Instead, "[a]ll that is required is the existence of a clear and present danger of such disastrous and unlawful conduct." Id. Because, "according to the record before" the Court, that condition existed in Asheville at the time the curfew was proclaimed, the Court found the curfew constitutional. Id. Dobbins thus teaches that the record must demonstrate that there was, at the time the ordinance was adopted, a "clear and present danger" that a registered sex offender would re-offend in one of the Town's parks. No such evidence exists.
The fact that we are talking about convicted sex offenders does not negate constitutional principles. Our Supreme Court, acting 75 years ago, struck down an ordinance that prohibited "any lewd woman" from being on the public streets, in public places, or places of business. See State v. Ashe, 202 N.C. 75, 75, 161 S.E. 709, 709 (1932). In holding the ordinance unconstitutional, the Court stated:
However much they may have offended against the decencies of society, or run counter to the prevailing code of morals, or rendered themselves non grata personae to the community, still they are human beings, citizens of a great Commonwealth, and entitled to the equal protection of the laws.
To deny to anyone, not lawfully imprisoned, the right to travel the highways, to buy goods, to eat bread, to attend Divine Worship, and the like, simply because he or she happens, for the time being, to belong to an unfortunate class, is an unwarranted use of the police power. Such an attempt at discrimination is unreasonable and in contravention of common right.
Id. at 76, 161 S.E. at 710 (emphasis added) (internal citation omitted). Surely, we have not 75 years later so strayed from the groundings of our constitution that Ashe's view of what is an "unwarranted use of the police power" with respect to "lewd women" does not apply with equal force to sex offenders, the vast majority of whom will not re-offend.
*639 Conclusion
The issue in this case is not whether sexual predators present a risk to our communities. They do. Nor is there any doubt about the ability of state and federal legislatures to act to protect their citizens from such predators. The primary question before this Court is whether the Town has the authority to impose its own regulatory scheme despite the comprehensive state and federal legislation adopted to serve the same purposes. Even if authority does exist, the question remains whether the means used by the Town is sufficiently necessary and tailored to override the rights of people who have already been punished for their crimes, who wish to engage in the innocent behavior of strolling through a park, and who have exhibited no behavior suggesting they will ever offend again.
A municipality should not be permitted to override fundamental constitutional rights based only on perceived exigency, without consideration of alternatives or efficacy. The public will believe itself safe, although it is not, and people who will never re-offend will be deprived of a fundamental right. I am confident we will come to regret allowing such action to be undertaken in the name of political expediency.
NOTES
[1] Brett Hollomon, Chief of Police, is also a party to this case in his official capacity. Hereinafter, references to defendant-appellee Woodfin implicitly include Hollomon.
[2] The first category has a 10-year registration requirement, while the second category requires lifetime registration. N.C. Gen.Stat. § 14-208.6A. A third program governs juveniles not tried as adults. See N.C. Gen.Stat. § 14-208.26 (2005). Different registration requirements apply to the juveniles, and the information is released only to law enforcement rather than the public. N.C. Gen.Stat. § 14-208.29 (2005).
[3] The General Assembly has also provided, however, that a landlord offering real property for rent or a person selling real property is not required to disclose that a person convicted of a crime for which registration is required resides near the property. N.C. Gen.Stat. §§ 39-50, 42-14.2 (2005).
[4] Certain other offenders may be subject to a more limited time period of satellite-based monitoring. N.C. Gen.Stat. § 14-208.40(a)(2).
[5] But see Lindsey v. N.C. Farm Bureau Mut. Ins. Co., 103 N.C.App. 432, 437, 405 S.E.2d 803, 805-06 (1991) (party could not object on appeal to contents of summary judgment affidavits when party did not object to affidavits before trial court).
[6] There has also been no showing that the reports from the United States Justice Department fall within N.C.R. Evid. 803(8), providing a hearsay exception for certain public records and reports.
[7] One sexual crime did occur in a park, but the offender apparently was not registered. Thus, the ordinance would not have prevented that crime.
[8] I am not, however, suggesting that such media reports would necessarily meet the constitutional standard.
[9] It has been stipulated that the park visited by Mr. Standley and his mother contains no amenities for children.
[10] I do not intend, by mentioning these options, to express an opinion on their constitutionality since the parties have not had an opportunity to address that question. I am simply demonstrating that options do exist that the Town could have considered. Its failure to consider any other option renders its ordinance constitutionally suspect. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331477/ | 236 S.C. 31 (1960)
113 S.E.2d 75
Nathaniel GIST, JR., Lucy W. McCaughrin, Margaret G. McCaughrin, Albert G. McCaughrin, Laura McCaughrin Pickens, Margaret McCaughrin Killingsworth, Elizabeth McCaughrin Haltiwanger, Mary Butler Fant Holmes, Nicholas S. Holmes, Owen McR. Holmes and Nancy Harper James, Appellants,
v.
Frances Harper BROWN and the Birmingham Trust National Bank as Executor of the Last Will and Testament of Ione Fant McCaughrin and as Trustee under the Last Will and Testament of Ione Fant McCaughrin, deceased, of which the Birmingham Trust National Bank is, Respondent.
17615
Supreme Court of South Carolina.
February 10, 1960.
*32 Messrs. Thomas H. Pope and Eugene S. Blease, of Newberry, for Appellants.
*33 Messrs. Grier, McDonald, Todd, Burns & Bradford, of Greenwood, for Respondent.
February 10, 1960.
STUKES, Chief Justice.
The question to be determined in this case is whether the devise to Robert, the grandson of the testator, was a vested remainder or a remainder contingent upon Robert's survival of his father. It was contained in the ninth item of the will of Robert L. McCaughrin, which follows:
"I give, bequeath and devise my `Dairy Farm' house and buildings, and one hundred acres of land with the house, (the land to be selected by my son, S.J. McCaughrin) with such of the outfit on said place as I may own, to my said son, S.J. McCaughrin, his wife, and his son, Robert and such other child or children as may be born to the said S.J. McCaughrin, for and during the term of his natural life, and at his death, one-third of said place to the wife of S.J. McCaughrin surviving him, and remaining two-thirds, to be equally divided among his children, the child or children *34 of a predeceased child taking the share his or their parent would have taken. The disposition of this place as above indicated is for the benefit of the wife and children of the said S.J. McCaughrin, and is in no case to be subjected to his debts. In case he should leave no wife surviving him, then the whole place is to be divided among his children as above indicated."
The testator died on January 27, 1896. Robert, the devisee, died July 1, 1896, at about four years of age, survived by his father and mother as his sole heirs at law. The only other child of his parents had died in 1894. Robert's father, S.J. McCaughrin, predeceased his wife, Robert's mother, leaving a will by which he devised all of his property to his wife. She died in 1955 leaving of force her will by which she devised the property in controversy in this action (which was substituted for the "Dairy Farm" by a former judicial proceeding) to the respondent bank as trustee. The trial court held that the questioned estate was a vested remainder which was inherited by the parents of the devisee upon his death intestate and passed perforce their respective wills to the bank as trustee.
The other parties to the action have appealed and contend that the remainder was contingent upon Robert's survival of his father, the life tenant, and upon that failure and upon the falling in of the life estate the remainder interest reverted to the estate of the testator and passed under the seventh and eighth items of his will. They provided that after payment of debts and legacies the residue of the estate should be divided into seven equal shares to his six children and one grandson, except that the share of S.J. McCaughrin should be charged with $3,500.00 (and advances theretofore made to him) which was the testator's valuation of the "Dairy Farm" devised in the ninth item, quoted in full above. It is seen that these other provisions of the will throw no light upon the nature of Robert's remainder.
*35 It is elementary that a testator's intention, as expressed in his will, will govern in the construction of it if not in conflict with law or public policy; and it will be ascertained upon consideration of the entire will. However, "in looking for this intention we must be guided by the words which the testator has used, reading them in the light of established principles of law" per Mr. Justice (afterward Chief Justice) McIver in Faber v. Police, 10 S.C. 376, 386. The latter is necessary in the interest of the stability of the law which is especially desirable in the law of property. By many decisions it has been uniformly held that the language used by the instant testator in the ninth clause of his will, quoted ante, created a vested remainder. A contingent remainder would have been created if Robert's survival of his parents had been added as a condition as it was with respect to his mother surviving his father but, with apparent discrimination, that condition was omitted with respect to the gift to Robert. Some of the decisions alluded to are: Taveau v. Ball, 1 McCord Eq. 7; Boykin v. Boykin, 21 S.C. 513; Gourdin v. Deas, 27 S.C. 479, 4 S.E. 64; Brown v. McCall, 44 S.C. 503, 22 S.E. 823; Rutledge v. Fishburne, 66 S.C. 155, 44 S.E. 564, 97 Am. St. Rep. 757; Woodley v. Calhoun, 69 S.C. 285, 48 S.E. 272; Wicker v. Wicker, 70 S.C. 33, 49 S.E. 10; Fishburne v. Sigwald, 79 S.C. 551, 60 S.E. 1105; Walker v. Alverson, 87 S.C. 55, 68 S.E. 966, 30 L.R.A., N.S., 115; West v. Smith, 89 S.C. 540, 72 S.E. 395; Pearson v. Easterling, 107 S.C. 265, 92 S.E. 619; Wannamaker v. South Carolina State Bank, 176 S.C. 133, 179 S.E. 896, and First Nat. Bank of Holly Hill v. Bennett, 206 S.C. 402, 34 S.E. (2d) 678.
The devise and the facts in Rutledge v. Fishburne, supra, [66 S.C. 155, 44 S.E. 565] were substantially the same as in the case sub judice. The devise there was: "unto my said daughter, Sophia Sheppard Marion, for life, not subject to the debts of her husband, with remainder to her children, share and share alike, the child or children of a deceased *36 child to represent and take the parent's share." The conclusion of the court was, quoting from the opinion: "Under the foregoing clause of the will, Mrs. Fishburne (the child of the devisee) took a vested transmissible interest in remainder. If other children should be born unto Mrs. Marion (the devisee) the remainder now vested in Mrs. Fishburne would open so as to embrace such children. If Mrs. Fishburne should die leaving no children, her vested interest would not revert to the estate of Mrs. Wilson (testatrix), but would descend to her (Mrs. Fishburne's) heirs generally, and be subject to distribution under the statute, just as any other property of which she might die seized and possessed."
Others of the above cited cases are very similar to that in hand but this opinion will not be extended to include review of them. Although many of them were cited in the well considered decree of the trial court, appellants made no effort in this court to distinguish them or otherwise argue the inapplicability of them.
In the very recent case of Woodward v. Cagle, S.C. 112 S.E. (2d) 480, 481, the devise was "To my son Alexander Cagle, for and during the term of his natural life and at his death to his widow for life and at her death to his children absolutely per stirpes. In default of such children the same shall vest in my executors to be disposed of as provided in paragraph Six (6)." Alexander had no children and the question before the court was the disposition of the property under the substitutional devise contained in the last sentence quoted. In the opinion it was said: "It is clear that by Item 5 of his will the testator left a life estate to his son Alexander Cagle, and a succeeding life estate to the widow of Alexander Cagle, and a remainder to the children of Alexander Cagle. This remainder to the children was of necessity contingent since no children were born to Alexander Cagle. If a child had been born to Alexander Cagle, there is no doubt that this remainder would have vested immediately in such child, subject to partial defeasance in the event of the birth of additional children." (As shown by the context, the word *37 "contingent" in this quotation was not used in its usual technical sense, as describing a remainder, but as conditional upon the birth of a child or children.)
The American Law Institute denominates Robert's remainder under the devise in the instant case as "vested subject to open," Restatement of the Law of Property, 1936, Vol. II, p. 541, and the illustration is: "A, owning Blackacre in fee simple absolute, transfers Blackacre `to B for life, remainder to the children of B.' B has a child C. C has a remainder vested subject to open and let in other children born to B." Incidentally, the Institute does not apply the adjective "contingent" to remainders for the reasons stated in the same volume, p. 542, "Note on Terminology."
It is conceded that the provision in the will before us, "The disposition of this place as above indicated is for the benefit of the wife and children of the said S.J. McCaughrin, and is in no case to be subjected to his debts," is of no legal effect. Rutledge v. Fishburne, supra. It did not create a spendthrift trust; indeed, no trust was created or trustee appointed. Incidentally, the course of events has caused the gift to "benefit" the wife and children (child) of S.J. McCaughrin and not his creditors, but not because of this precatory provision of the will. On the contrary, if appellants' contention should prevail, they would benefit although they were not included in the gift or prayer.
The reference to a spendthrift trust points to appellants' principal reliance in their brief upon the case of Albergotti v. Summers, 205 S.C. 179, 31 S.E. (2d) 129, in which there was a valid spendthrift trust, as held in the first appeal of it, reported in 203 S.C. 137, 26 S.E. (2d) 395. That case will be discussed hereinafter.
If the will under construction was prepared by able counsel, as appellants say, the omission of any provision for contingency of the estate devised to Robert and the absence of effective provision for a spendthrift trust are more persuasive of the correctness of our construction than if the will *38 had been prepared by an unskilled layman. How easy it would have been for skilled hands, if so intended, to have added the requirement of Robert's survival, as was done with respect to his mother's remainder. This thought cannot be better expressed than in the words of Mr. Justice (afterward Chief Justice) McIver again in Brown v. McCall, supra, 44 S.C. 503, 512, 22 S.E. 823, 828: "It will be observed that the language is not `to the use of her children by her late husband (living at the time of the death of the surviving life tenant), the issue of a deceased child taking by representation the parent's share,' but the language actually used omits the words which we have placed in parentheses and italicized, the very words which would appropriately express the intention (if it had been entertained) that the interest of any of the then living children of Berry was to be dependent upon the fact that such child should be living at the death of the surviving life tenant."
Recurring to appellants' reliance upon the authority of Albergotti v. Summers, supra, 205 S.C. 179, 31 S.E. (2d) 129, we do not think that it is of any material resemblance to the case in hand. There the testatrix created a spendthrift trust and devised the property to trustees for a period of twenty-one years, with power to invade the corpus to maintain the cestuis que trust. Division of the property was directed at the end of the trust period among the children of the testatrix or to any child or children that they might leave surviving. The bedrock of the decision that the remainders were not vested in the children of testatrix during the trust period was the existence of the spendthrift trust, as is seen upon consideration of the opinion. It was held that a vested remainder would be inconsistent with the whole scheme and purpose of the spendthrift trust. Pointing to the foregoing and other circumstances we were careful to say, quoting from the opinion, 205 S.C. at page 187, 31 S.E. (2d) at page 132: "If all of these circumstances are excluded, the language used would ordinarily tend to create a vested remainder, Boykin v. Boykin, 21 S.C. 513; West v. Smith, *39 89 S.C. 540, 72 S.E. 395; Wannamaker v. South Carolina State Bank, 176 S.C. 133, 179 S.E. 896." The many distinctions between the Albergotti case and this are manifest upon a reading of it and the authority of it is very plainly inapplicable here.
The exceptions are overruled and the judgment affirmed.
TAYLOR, OXNER, LEGGE and MOSS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3028391/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-2025
___________
Tracy Jones, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Michael Bowersox, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: January 17, 2002
Filed: February 13, 2002
___________
Before BOWMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
PER CURIAM.
Tracy Jones was charged under Missouri law, tried in a Missouri trial court,
and found guilty by a jury of both murder in the first degree and armed criminal
action. In keeping with the jury's recommendation, he was sentenced to life
imprisonment without parole for murder and to a consecutive term of life
imprisonment for armed criminal action. After exhausting his state remedies without
obtaining any relief, he filed a 28 U.S.C. § 2254 habeas petition in the District Court.1
1
The Honorable Jean C. Hamilton, Chief Judge, United States District Court
for the Eastern District of Missouri.
That court denied the petition, which raised six claims for relief, and granted a
certificate of appealability on only one of those claims, namely, the claim that a
confession admitted into evidence at Jones's trial had been obtained during coercive
in-custody interrogation. Jones has appealed. We affirm.
On appeal, Jones makes essentially the same arguments in support of his claim
that his confession was involuntary that he made to the District Court. Applying the
now-familiar standards of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. 104-132, 110 Stat. 1214, the District Court determined that the
state-court conclusion that Jones's confession was voluntary is not based on an
unreasonable determination of the facts and that it is neither contrary to nor an
unreasonable application of clearly established federal law as determined by the
Supreme Court of the United States. See 28 U.S.C. § 2254(d) (Supp. IV 1998); see
also Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (opinion of O'Connor, J., for
the Court).
Having carefully considered the record and the arguments of the parties, we
find no error in the District Court's reasoning or conclusions. Accordingly, the order
of the District Court denying habeas relief and dismissing Jones's petition is affirmed.
See 8th Cir. R. 47B.
Because of our affirmance of the case on the merits, we need not and do not
address Warden Bowersox's argument that Jones's § 2254 petition was untimely in
that it was not filed until more than a year had passed from the date on which the
state-court judgment became final by the conclusion of direct review. See 28 U.S.C.
§ 2244(d)(1)(A) (Supp. IV 1998) (establishing the one-year limitation period here in
question). In this case it is considerably easier and thus more judicially efficient to
affirm on the merits than to untangle the complexities of the timeliness issue. Cf.
Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir.) (en banc) ("Although the
procedural bar issue should ordinarily be resolved first, judicial economy sometimes
-2-
dictates reaching the merits if the merits are easily resolvable against a petitioner
while the procedural bar issues are complicated."), cert. denied, 528 U.S. 846 (1999).
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2262874/ | 84 Cal.Rptr.2d 51 (1999)
71 Cal.App.4th 544
Jessie THOMPSON, Plaintiff and Respondent,
v.
FRIENDLY HILLS REGIONAL MEDICAL CENTER, Defendant and Appellant.
No. G019116.
Court of Appeal, Fourth District, Division Three.
April 20, 1999.
*52 Atkinson, Andelson, Loya, Ruud & Romo, James H. Palmer, Barbara S. Van Ligten, Cerritos, and B. Kimberly Adams, for Defendant and Appellant.
Daniel D. Dydzak, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
*53 O P I N I O N
CROSBY, Acting P.J.
Health care providers ought to know this rule: Above all else, do no harm.[1] So should their attorneys when prescribing an appeal.
I
Plaintiff Jessie Thompson worked as a nurse in the critical care unit of Friendly Hills Regional Medical Center in La Habra and had been employed there for 14 years. She was fired in April 1992 for allegedly falsifying her time sheets.
Thompson sued the hospital for breach of an oral contract not to discharge her without good cause and for breach of the implied covenant of good faith and fair dealing. She alleged her termination was pretextual and designed to deprive her of accrued retirement and pension benefits. She was 56 years old at the time of her termination, 6 years away from retirement.
The jury was instructed, "[t]here is a presumption under the laws of California that employment is at will [and] ... may be terminated by either the employer or the employee at any time, for any reason, good, bad, or nonexistent...." The jury was further instructed that the hospital had the legal right to dismiss Thompson if she failed to show, by a preponderance of the evidence, the existence of an oral contract requiring good cause.
The jurors found there was such an oral contract and the hospital fired Thompson without just cause and breached the implied covenant of good faith and fair dealing. Damages were assessed at $75,000.
The hospital moved for a new trial. It attached declarations from three dissenting jurors showing the damages were inflated by one-third in order to cover plaintiffs attorney fees. Thompson opposed the new trial motion with declarations from some of the majority jurors denying any agreement to increase the damages to include attorney fees.
The judge had retired, and a substitute heard the new trial motion. He expressed the view the award was excessive and should be reduced from $75,000 to $56,000. To avoid a new trial, Thompson accepted the remittitur "in the spirit of putting an end to this litigation...."
The minute order directed counsel to prepare the appropriate notices. The hospital subsequently produced a notice of ruling explaining why the conditional new trial order was granted. The court never drafted or filed a specification of reasons of its own. The hospital filed this ill-advised appeal from the judgment as reduced by the court.[2]
II
The hospital correctly contends the court lacked authority to issue a remittitur for any reason other than excessive damages, and in no case without preparing its own specification of reasons. But the hospital's reliance on a technicality has produced, appropriately enough, only a technical victory. Rather than ordering a new trial, as the hospital desires, the proper course is to reinstate the original judgment. Thus, by "succeeding" in this appeal, the hospital obtains a $19,000 increase in liability.
The remittitur is a judicially developed device, codified in Code of Civil Procedure section 662.5, to allow trial judges who disagree with a jury's determination of damages to order a conditional new trial unless the plaintiff agrees to a reduced damage award. The Supreme Court has held the remittitur is only to be used "to reduce excess damages" and cannot be employed "beyond that limited context." (Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 454, 198 Cal.Rptr. 155, 673 P.2d 743 [no remittitur *54 to reassess percentages of comparative fault among parties].)[3]
Jury misconduct may result in excessive damages and support a remittitur. That was the situation in Tramell v. McDonnell Douglas Corp. (1984) 163 Cal.App.3d 157, 171, 209 Cal.Rptr. 427, where the trial judge concluded damages were excessive based on juror declarations stating that plaintiffs counsel "would receive 33% of what we awarded to Mrs. Tramell and her children...." (Id. at p. 163, fn. 2, 209 Cal.Rptr. 427.) Tramell held use of a remittitur "is a permissible procedure.... There is no legal or logical impediment to the trial judge's decision that juror misconduct was an objective fact which improperly influenced the verdict herein." (Id. at p. 171, 209 Cal.Rptr. 427.)
But, as Tramell itself recognized, orders granting new trials on the ground of excessive damages must be accompanied by a written specification of reasons prepared and filed by the trial judge. (Id. at pp. 168-169, 209 Cal.Rptr. 427; see also Mercer v. Perez (1968) 68 Cal.2d 104, 115, 65 Cal.Rptr. 315, 436 P.2d 315["[I]f the ground is `misconduct of the jury' ... the judge should specify this improper method of deliberation as the basis of his action"].) And the Supreme Court has strictly interpreted the statutory requirement of Code of Civil Procedure section 657 for a written specification of reasons.[4] Trial judges have a "clear and unmistakable duty" to timely specify their grounds and reasons for granting a new trial, "and we expect that such duty will be faithfully discharged." (Treber v. Superior Court (1968) 68 Cal.2d 128, 136, 65 Cal.Rptr. 330, 436 P.2d 330.) An oral explanation will not suffice, and the task cannot be transferred to trial counsel. (La Manna v. Stewart (1975) 13 Cal.3d 413, 422, 118 Cal.Rptr. 761, 530 P.2d 1073 [substantial compliance unacceptable]; see also Stewart v. Truck Ins. Exchange (1993) 17 Cal.App.4th 468, 484, 21 Cal.Rptr.2d 338 [reversing new trial order as to punitive damages where "the trial court assigned no ground therefor and gave no reasons whatever"]; Steinhart v. South Coast Area Transit (1986) 183 Cal. App.3d 770, 774, 228 Cal.Rptr. 283 ["words can easily trip off the tongue, whereas to write them down, to pin them to the page so they are permanent and not an evanescent utterance, requires more time, deliberation, and labor"].)
No such specification of reasons issued here, only the ineffective musings and writings of court and counsel like those in the cases above. Neither the transcript of the new trial hearing nor defense counsel's notice of ruling satisfied the statutory requirement. And Thompson's immediate consent to the remittitur made no difference. (Greenfield v. Spectrum Investment Corp. (1985) 174 Cal.App.3d 111, 122, 219 Cal.Rptr. 805; see also 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 122, p. 626 ["The requirements of C.C.P. 657 are applicable to conditional new trial orders entered pursuant to C.C.P. 662.5, `even when subsequent actions of a party fulfilling a condition stated therein have the *55 effect of negating that order for new trial.'"].)[5]
The failure to supply an adequate specification of reasons renders the new trial order defective, but not void. Instead the hospital, as the party seeking a new trial, has the burden to sustain that position on appeal with "`a record and argument to support it.'" (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 900, 215 Cal.Rptr. 679, 701 P.2d 826.)
We independently review all the grounds advanced for the new trial motion and will sustain the order "if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons...." (Code Civ. Proc., § 657.) That review includes searching the record, with the assistance of the party for whom the new trial was granted, "to find support for any other ground stated in the motion...." (Mercer v. Perez, supra, 68 Cal.2d at p. 119, 65 Cal.Rptr. 315, 436 P.2d 315.) While we give "considerable weight to the expressed opinion of the trial court" (Malkasian v. Irwin (1964) 61 Cal.2d 738, 749, 40 Cal.Rptr. 78, 394 P.2d 822), we nonetheless exercise our own judgment, following our review of the record, to determine whether a new trial is legally required.[6]
The court had no adequate basis for a new trial order, conditional or otherwise. (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 906, 215 Cal.Rptr. 679, 701 P.2d 826.) We do not construe the juror declarations taken as a whole to show an express or implied agreement by the jury to inflate the verdict to include attorney fees. Other jurors contradicted the assertion of the three dissenting jurors. And the $75,000 awarded by the jury was the same amount requested in plaintiffs closing argument to cover her missed opportunities for overtime and lost pension plan benefits. That request included no claim for attorney fees. After examining the record, we conclude a new trial was not required as a matter of law because of alleged jury misconduct or anything else.
Under like circumstances the court in Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 223 Cal.Rptr. 859 affirmed the denial of a new trial for jury misconduct. In Moore two juror declarations were introduced to show a discussion among the jurors regarding the plaintiffs probable contingency fee obligation to his attorney. Distinguishing Krouse v. Graham (1977) 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022, the court found the declarations insufficient to "establish `[a]n express agreement by the jurors to include such fees in their verdict, or extensive discussion evidencing an implied agreement to that effect.' [Citations.].... The declarants do not suggest an express agreement was reached and the discussion they relate could hardly be characterized as extensive." (Moore, supra, *56 178 Cal.App.3d at pp. 740-741, 223 Cal.Rptr. 859, fn. omitted.)
III-IV[**]
V
In view of Thompson's rule violations on appeal, we decline to award her costs. Her respondent's brief was grossly defective, containing no references to the reporter's transcript and substituting invective for substantive analysis. Unnecessary time and court resources were consumed in returning the brief to counsel for resubmission of a new brief with appropriate transcript references. (Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 885, 271 Cal.Rptr. 513.)
The new trial order is reversed, and judgment is ordered to be entered on the verdict. Each side shall bear its own costs on appeal.
RYLAARSDAM, J., and BEDSWORTH, J., concur.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts III and IV.
[1] The Hippocratic Oath "begins with the words, `Primum non nocere,' i.e., `First, do no harm.'" (Thorburn v. Department of Corrections (1998) 66 Cal.App.4th 1284, 1290, fn. 6, 78 Cal.Rptr.2d 584, quoting American Medical Association, Council on Ethical and Judicial Affairs, Council Rep., Physician Participation in Capital Punishment (1993) 270 JAMA 365.)
[2] We dismiss that portion of the hospital's appeal to the extent it attacks the denial of its motion for new trial. An order denying a new trial is not separately appealable. (Gallup v. Board of Trustees (1996) 41 Cal.App.4th 1571, 1573, fn. 1, 49 Cal.Rptr.2d 289.)
[3] Section 662.5 states, "(b) If the ground for granting a new trial is excessive damages, [the trial court in its discretion may] make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party in whose favor the verdict has been rendered consents to a [remittitur]."
[4] Code of Civil Procedure section 657 provides in pertinent part as follows: "When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated.... [¶] ... If an order granting such motion does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk. The court shall not direct the attorney for a party to prepare either or both said order and said specification of reasons. [¶] On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons, except that (a) the order shall not be affirmed upon the ground of ... excessive ... damages, unless such ground is stated in the order granting the motion and (b) ... it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in ... said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons."
[5] Strict Supreme Court interpretations of section 657 have created a "procedural minefield" for trial judges who issue new trial orders. (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 911, 215 Cal.Rptr. 679, 701 P.2d 826 (dis. opn. of Kaus, J.).) We see no principled reason, for example, why trial judges may not state their reasons for granting a new trial on a reported record, or why they cannot delegate to counsel the task of preparing the specification of reasons. In the similar context of a bench trial, for example, judges customarily request the prevailing party to draft a proposed statement of decision. (See Jordan v. Malone (1992) 5 Cal.App.4th 18, 21, 6 Cal.Rptr.2d 454; In re Rodrigo S. (1990) 225 Cal.App.3d 1179, 1183, 276 Cal.Rptr. 183.) These matters, however, are for the Legislature, not us. As the Supreme Court has noted, "The power of the [L]egislature [in] specifying procedural steps for new trials is exclusive and unlimited.... [T]he judiciary, in its interpretation of legislative enactments may not usurp the legislative function by substituting its own ideas for those expressed by the [L]egislature." (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 905, fn. 5, 215 Cal.Rptr. 679, 701 P.2d 826, internal quotation marks omitted.)
[6] In contrast, where there is a specification of reasons for a new trial order based on jury misconduct, appellate courts defer to the trial judge's determination regarding misconduct and prejudice and will not interfere "`unless a manifest and unmistakable abuse of discretion clearly appears.'" (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 109, 95 Cal.Rptr. 516, 485 P.2d 1132.) Weathers affirmed a new trial order in a medical malpractice case where juror declarations showed one juror telephoned his own doctor "and obtained his opinion, which was communicated to the other jurors, that viral encephalitis `was an incurable and fatal disease, and that the decedent [] was doomed from the beginning so, what were we doing here, and why didn't we get this thing over with.'" (Id. at p. 107, 95 Cal.Rptr. 516, 485 P.2d 1132.)
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262880/ | 84 Cal.Rptr.2d 35 (1999)
71 Cal.App.4th 605
The PEOPLE, Plaintiff and Respondent,
v.
Tassage ELIZE, Defendant and Appellant.
No. B120795.
Court of Appeal, Second District, Division Two.
April 1, 1999.
*36 Walter L. Gordon, III, Los Angeles, for Defendant and Appellant.
Bill Lockyer and Daniel E. Lungren, Attorneys General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Arthur H. Auerbach, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
ZEBROWSKI, J.
Defendant Tassage Elize worked as an armed security guard at a food market. He was apparently romantically involved with two women simultaneously, one of whom was or had been pregnant with his child. Both women were physically larger than defendant. The women came to defendant's place of work together, and a violent altercation followed. At the conclusion of the altercation, defendant had a broken wrist and one *37 shot had been fired from defendant's handgun. At a jury trial defendant was convicted of assault with a firearm on one woman (Pen.Code, § 245(a)(2)) and battery of the other (Pen.Code § 242.)[1] In addition, the jury found true an allegation that defendant personally used a firearm within the meaning of section 12022.5. The trial court sentenced defendant to the low term of two years for the assault with a firearm, the upper term of 10 years for the firearm use, a concurrent term of 18 months for the battery, and ordered a $10,000 payment to the state Victims' Restitution Fund plus $25 to one woman for a shirt that was perforated by the bullet.
Defendant now appeals on several grounds. One of these grounds is that the trial court refused to give instructions on self-defense that were requested by defense counsel. We will reverse on this ground, and hence need not consider the other grounds raised.
I. THE EVIDENCE AT TRIAL.
The evidence at trial was confused and in conflict, as is not unusual. It can be summarized as follows:
An uninvolved witness in the parking lot testified that he observed a struggle between defendant, dressed as a security guard, and two ladies. According to this witness, defendant was trying to prevent one lady from closing her driver's side car door. The passenger then got out of the car and tried to push defendant away from the door. The driver then joined the struggle, and at various points defendant was seen choking one woman or the other. There was a lot of hollering, pushing and hitting, possibly including one of the woman hitting defendant with an object. He may have seen a large flashlight in the hands of one of the women. He did not see defendant pull his gun from its holster, but he saw the flash of a gun and heard its report. However, he could not see the gun itself. Both of the women then entered a car and left.
The bullet put two holes in a loose-fitting shirt worn by one of the women. That woman testified that defendant had been her boyfriend, and that they had lived together for nine and a half months before the incident in the parking lot. Several months before that, she had learned that defendant had been seeing the second woman, and had broken up with him, but later the two got back together. The first woman was then contacted by the second woman, who explained that she was pregnant with defendant's child.
Although defendant and the first woman continued to live in the same apartment, their relationship deteriorated. On the day in question, the second woman came to the first woman's apartment. She was upset. The two women talked, and decided to collect defendant's clothes, take them to his place of work, and deliver them to him. Upon arriving in the parking lot, they had defendant summoned. An argument, complete with accusations and denials, followed. At one point, defendant tried to prevent the first woman from closing her car door, and later choked the second woman. The first woman testified that she then beat defendant with her cellular phone. She testified that after she hit him across his back and neck, defendant pushed her away, pointed a gun at her, and fired towards her chest. She denied grabbing defendant's gun, or reaching for it, and also denied hitting defendant on or near his wrist. The two women then drove away. The first woman had a bullet hole in her shirt, but was uninjured.
Culver City Police Officer Rick Neilson testified that he responded to a call regarding an assault in progress, later upgraded to possible shots fired. Defendant was sitting just inside the market doors, wearing a security guard uniform. Officer Neilson examined defendant's .38 caliber revolver, finding that it contained one expended casing and a distinctive odor of gun powder, indicating it had been recently fired.[2] When Officer Neilson arrived, defendant was being treated by paramedics. He arrested defendant and *38 transported him to a hospital, where his arm was treated by a doctor in the emergency room.
Officer Kirk Newman interviewed the first woman. He saw that her shirt had a hole in it, with a matching hole on the other side. He testified that both women were about five feet seven or eight inches in height and 200 to 220 pounds in weight. He did not see any observable physical injuries on either woman. He did not conduct a gunshot residue test on either woman.
A firearms investigator for the Sheriffs' Department examined the first woman's shirt and defendant's handgun. He testified that there was an entrance bullet hole on the front side of the shirt and an exit bullet hole on the rear side of the shirt sleeve. He found the firearm to be in working order, and testified that even shooting from a short distance, a person could miss a target. He estimated that the gun was 36 to 42 inches or more away from the shirt when it was fired.
The second woman could not be located at the time of trial, and her testimony from the preliminary hearing was read into the record. She testified that defendant had been living with her on the day in question, but was seeing the first woman again. The two women then decided to go to the market to give defendant his clothes. The second woman testified that defendant tried to stop the first woman from closing her car door, telling her that he loved her, etc. The situation escalated to an altercation between defendant and both women, including hollering, choking, etc. The first woman began beating defendant with something. The second woman did not know what the object was, but understood that it was a phone. The second woman testified that defendant then shot at the first woman. The two women then entered a car and left the scene.
Defendant testified somewhat ambiguously about how long he had known the second woman, but stated that he was living with the first woman.[3] The second woman had driven him to work on the day in question. That evening, his manager called him and he went outside. The first woman was there, angry and yelling obscenities. She threw his keys on the ground, and when he went to pick them up, tried to run him over. He jumped away, and was not injured. He testified that the two women then exited the car, and that the first woman took two iron pipes from the trunk and gave one to the second woman. The first woman then asked him which woman he loved, and he replied that he did not like either. The two women then began beating him with the iron pipes, a blow from the first woman breaking his left wrist or arm. He testified that he grabbed the hand of the second woman, tearing the iron pipe out of her grasp while the first woman continued to beat him with her pipe. The second woman, having lost her pipe, then grabbed defendant's handgun from its holster. Defendant grabbed her hand while the first woman continued hitting him on the back and side. Defendant testified that he attempted to point the gun upward. The gun fired, and the two women left. Defendant then returned the handgun to its holster, ran inside, and told the manager to call the police. Paramedics arrived first and treated his arm; later the police took him to a hospital where he was fitted with a cast and a sling.
In rebuttal, Officer Nielsen testified to statements previously made by defendant. Officer Nielsen testified that defendant stated that one of the women grabbed his handgun and that it fired during the ensuing struggle. The officer also testified to some discrepancies in defendant's explanation of who was really his roommate, and that defendant had previously stated only that one of the woman had been hitting him with a pole. Officer Nielsen also stated that defendant had previously stated that it was the woman, and not defendant, who had pulled the trigger.
II. THE INSTRUCTION REQUEST.
During discussion of instructions, defense counsel requested instructions on self-defense, stating: "After some reflection I would ask the court to consider giving self-defense *39 instructions.... I realize that there's been no testimony from the defendant that he specifically was acting in self-defense, however, I think these instructions relate to legal issues, [and that] the fact finder can make inferences [of self-defense.] ... As the court knows, it seems to be uncontroverted that [defendant] suffered a broken arm during the incident. He testified it was a result of being hit by a pole and so for that reason, I'm asking the court to give self-defense instructions." The court denied the request, stating there was no factual basis for it because defendant had testified that the gun fired accidentally.
During its opening argument to the jury, the prosecution emphasized that self-defense was not an issue in the case, i.e., that defendant was not claiming that he shot in order to defend himself. Defense counsel also then argued that defendant did not say that he was trying to defend himself after one of the women broke his arm. Defense counsel instead argued that the shot was accidental.
Defendant was convicted and sentenced as noted above.
III. THE COURT ERRED IN REFUSING INSTRUCTIONS ON SELF-DEFENSE.
Defendant testified that the gun had fired accidentally. He did not testify that he intentionally fired in an effort to stop the attack which had broken his arm. The court refused the self-defense instructions precisely because defendant had testified that the firing was accidental, and had not testified that it was an effort at self-defense. A jury, however, could disbelieve defendant's testimony that the firing was accidental, and decide instead that he had fired intentionally, either actually attempting to hit one of the women or to shock them into breaking off their attack. In convicting defendant of assault with a firearm, the jury apparently did disbelieve defendant's testimony that the gun had fired accidentally, and apparently concluded instead that the firing was intentional. Having made the apparent determination that the firing was intentional, and having no instruction regarding an intentional firing in self-defense, the jury was deprived of any further alternative under the instructions given other than to convict. The question is whether the jury should have been given instructions which would have allowed the jury, after reaching its apparent conclusion that the firing was intentional, to consider whether the firing constituted justifiable self-defense.
In determining whether the trial court should have accepted the defense request to instruct on self-defense, we take guidance from the recent Supreme Court analysis in People v. Breverman (1998) 19 Cal.4th 142, 77 Cal.Rptr.2d 870, 960 P.2d 1094. Breverman dealt specifically with the question of when the court must instruct sua sponte on lesser included offenses, rather than with the instant question of when the court must give an instruction that is expressly requested. However, the principles relied upon in Breverman and related cases, when applied to the issue presently before this court, lead to the conclusion that the requested self-defense instructions should have been given in this case.
In Breverman, the defendant shot at a gang of fleeing boys who had vandalized his car and threatened to break into his home. One of his shots killed one of the boys. The defendant testified that he had not aimed at any of the boys and had not intended to hit any of them. The question was whether the court should have instructed on heat of passion manslaughter, notwithstanding the defendant's testimony that he had not intended to shoot any of the boys. In answering the question in the affirmative, the Breverman court reviewed the governing principles.
The court noted that "[i]n [People v.] Sedeno [(1974)] 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913], we noted that the sua sponte duty to instruct on all material issues presented by the evidence extends to defenses as well as to lesser included offenses ..., but we drew a sharp distinction between the two situations. In the case of defenses, we concluded, a sua sponte instructional duty arises `only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the *40 defendant's theory of the case.' ... Thus, when the trial court believes `there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory.'" (Breverman, supra, 19 Cal.4th 142 at p. 157, 77 Cal. Rptr.2d 870, 960 P.2d 1094, some italics omitted.) In applying this passage to the instant case, a point of unclarity becomes apparent. It is not clear what the Supreme Court meant in stating that a defendant is "relying" on a defense or in referring to a "defendant's theory of the case." In the instant case, the defense counsel attempted to raise the defense of self-defense, since it was so amply supported in the record. The trial court, however, precluded defense counsel from advancing that defense because of defendant's testimony that the gun had fired accidentally during the struggle. Thus if the nature of defendant's testimony is what the Supreme Court had in mind in its references to "relying" and "defendant's theory of the case," then it would be correct that the trial court in the instant case had no sua sponte duty to instruct on self-defense. However, even if that is correct, according to Breverman's quotation from Sedeno, the trial court in the instant case should have ascertained from defense counsel whether he wished "instructions on the alternative theory" of self-defense. It is necessarily implicit in Breverman's and Sedeno's directive that the trial court should make such an ascertainment that the trial court should instruct "on the alternative theory" when the defense so requests. Here, the trial court was not put to the test of "ascertaining" whether defendant wished a self-defense instruction. Instead, defendant expressly asked for the instruction.
Breverman continued its analysis by referring to People v. Barton (1995) 12 Cal.4th 186, 47 Cal.Rptr.2d 569, 906 P.2d 531, in which the "instructional distinction between defenses and lesser included offenses" again arose. (Breverman, supra, 19 Cal.4th 142 at p. 157, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) Barton also involved a homicide, one in which the defendant claimed to have fired his gun accidentally. (See also Barton, supra, 12 Cal.4th 186 at pp. 192-193, 47 Cal.Rptr.2d 569, 906 P.2d 531 ["Defendant, testifying on his own behalf, claimed that the shooting was an accident.... Defendant denied any intent to shoot."].) Defense counsel in Barton specifically requested that no instructions be given on heat of passion manslaughter. The trial court nevertheless instructed on heat of passion manslaughter, because substantial evidence supported that lesser included offense. The Supreme Court in Barton affirmed, stating that "`[t]he trial court must instruct on lesser included offenses ... [supported by the evidence] ..., regardless of the theories of the case preferred by the parties.'" (Breverman, supra, 19 Cal.4th 142 at p. 159, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) This conclusion was based on the underlying principle that "the jury must be allowed to `consider the full range of possible verdictsnot limited by the strategy, ignorance, or mistakes of the parties,' so as to `ensure that the verdict is no harsher or more lenient than the evidence merits.'" (Id. at p. 160, 77 Cal.Rptr.2d 870, 960 P.2d 1094.)
Returning to a consideration of how these principles might apply to the instant case, it is clear that had the shot in question hit and killed one of the women, and had defendant; been charged with murder, the trial court would not only have had a duty, but indeed a sua sponte duty, to instruct on both heat of passion and unreasonable self-defense manslaughter notwithstanding defendant's claim that the gun fired accidentally. The fact that defendant testified that the shot was accidental would not have precluded a sua sponte duty to instruct on the lesser included offenses, as Barton makes clear. It is clear that inconsistency between an instruction and a defendant's testimony is no reason to refuse an instruction, so long as substantial evidence supports the instruction, at least in the case of lesser included offenses.
The purpose of the sua sponte instructional rule which applies to lesser included offenses is "to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence." (Breverman, supra, 19 *41 Cal.4th 142 at p. 161, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) Thus Breverman reaffirmed that the court must instruct on all lesser included offenses which are supported by substantial evidence in the record. In making the decision of whether a record contains substantial evidence, Breverman makes clear that "courts should not evaluate the credibility of witnesses, a task for the jury." (Id. at p. 162, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) The court stated that "substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself." (Id. at pp. 162-163, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) The court emphasized that "[t]his means that substantial evidence of heat of passion and unreasonable self-defense may exist, and the duty to instruct sua sponte may therefore arise, even when the defendant claims that the killing was accidental.... For example, in Barton ... we concluded that when a killing occurred during a heated argument, which itself shortly, followed an `upset[ting]' traffic incident between the victim and the defendant's daughter, there was substantial evidence of heat of passion: despite the defendant's insistence that he sought only to detain the victim and fired his weapon accidentally...." (Breverman, supra, 19 Cal.4th 142 at p. 163, fn. 10, 77 Cal.Rptr.2d 870, 960 P.2d 1094.)
Returning to the facts involved in Breverman, the Breverman court concluded that "even though defendant insisted in his police statement that he did not `aim[ ]' or fire `at them,' a jury could reasonably disbelieve that claim and conclude, from all the evidence, that defendant killed intentionally, but while his judgment was obscured due to passion aroused by sufficient provocation." (Breverman, supra, 19 Cal.4th 142 at p. 164, 77 Cal.Rptr.2d 870, 960 P.2d 1094.)
The Sedeno opinion contains a seemingly inconsistent dictum, and also some pertinent guidance in addition to those portions of Sedeno discussed in Breverman. In Sedeno, a mentally disturbed man was attempting to escape police custody, and the police were attempting to subdue the man. The man seized an officer's gun and shot and killed the officer. He was convicted of first degree murder. On appeal, he contended (among other things) that the trial court should have instructed, sua sponte, on the defenses of unconsciousness and self-defense. The issue thus was the scope of the trial court's duty to instruct sua sponte, not whether the trial court should have given an expressly requested instruction.
The opinion in Sedeno appears either internally contradictory or outmoded in several respects. In discussing the defense of unconsciousness, Sedeno states "[i]t appears... that there was no substantial evidence to warrant giving instructions on [unconsciousness]" and that the theory of unconsciousness was "inconsistent with the accidental death defense asserted by defendant." (People v. Sedeno (1974) 10 Cal.3d 703, 717, 112 Cal. Rptr. 1, 518 P.2d 913.) However, the court went on to state that "[d]efendant apparently relies on the evidence that he had been struck on the head and staggered as the basis for an inference that his subsequent acts were not volitional in that he had been unconscious when he shot Officer Klass. Had he expressly relied on this defense and requested an instruction thereon, we would be forced to conclude that the evidence was sufficient to entitle him to the instruction." (Ibid., italics added.) Thus notwithstanding that Sedeno initially states that there was no substantial evidence to support a defense of unconsciousness, it nevertheless found that the evidence was sufficient to require instructions on the defense of unconsciousness, and opined that such an instruction should have been given if the defendant had asked for it, even though inconsistent, with his defense of accident. In the instant case, of course, the defendant did ask for the self-defense instruction. Thus notwithstanding any obsolescence or internal inconsistency in Sedeno, even Sedeno expressly states that when evidence supports a defense and the defendant "relies" on that defense and requests an instruction on it, the instruction should be given.
Sedeno went on to reject the companion contention that an instruction should have been given on self-defense. The context of Sedeno was an attempted escape involving an attempt by police officers to subdue the *42 would-be escapee. Hence the factual context was far different from that in the instant case. The circumstance of an attempted escape, in which the escapee disarms and shoots an officer attempting to prevent the escape, is hardly conducive to a defense of self-defense, at least absent some unusual circumstances not present in Sedeno. The Sedeno opinion began its discussion of this subject by stating "that there was no substantial evidence to warrant giving instructions on" the defense of self-defense. Just as was the case with regard to the defense of unconsciousness, Sedeno nevertheless went on to consider further defendant's contention that instructions should have been given on self-defense, but not surprisinglyin view of the factual contextrejected it. However, the language used by Sedeno in rejecting the contention, taken out of its context and imported into the instant factual scenario, would support affirming the trial court's refusal of self defense instructions in the instant case. In considering whether the factual scenario in Sedeno raised a sua sponte duty to instruct, Sedeno commented on a different issue, stating in dictum that "[i]t is not error to refuse a request for instructions on self-defense when there is no evidence from which it can be inferred that the defendant feared great bodily harm or death at the hands of the victim, or when the defendant has denied acting in self-defense and claimed the death was accidental." (People v. Sedeno, supra, 10 Cal.3d 703 at p. 718,112 Cal.Rptr. 1, 518 P.2d 913, italics added.) There had been no request for a self-defense instruction in Sedeno, and hence there was no need for the Sedeno court to decide the effect of a hypothetical request. Nevertheless, this dictum from Sedeno, if applied literally, would appear by way of analogy to require approval of the trial court's refusal to instruct on self-defense in the instant case. (See also People v. Curtis (1994) 30 Cal. App.4th 1337,1357-1358, 37 Cal.Rptr.2d 304.) Affirming the refusal in the instant case, however, would be inconsistent with the principles on which the current state of the case law in this area is constructed.
From Breverman, Barton and the portions of Sedeno cited with approval in Breverman, we can glean several instructive points. First, a lesser included instruction is required even though the factual premise underlying the instruction is contrary to the defendant's own testimony, so long as there is substantial evidence in the entire record to support that premise. Thus, for example, an instruction on heat of passion manslaughter is required even though the defendant testifies that he had no intent to shoot and that the shot was accidental. Second, the rules regarding when a trial court has a sua sponte duty to instruct differ according to whether the instruction relates to a lesser included offense or to a defense. As to lesser included offenses, the court must instruct, as noted above, whenever there is substantial evidence to support the instruction. As to defenses, such as self-defense, the court must instruct sua sponte only if there is substantial evidence of the defense and the defense is not "inconsistent with defendant's theory of the case." (Breverman, supra, 19 Cal.4th 142 at p. 157, 77 Cal.Rptr.2d 870, 960 P.2d 1094, quoting from Sedeno.) Third, in the event that there is substantial evidence of a defense inconsistent with tha defense advanced by defendant, the court should ascertain whether the defendant wants instructions on the alternate theory. Implicit in this proposition is the corollary that the court should give the instruction on the alternate defense if the defendant so requests upon being asked by the court. It seems to follow that the court should also give the instruction on the alternate defense without the middle step of the court asking, in order to "ascertain" whether defendant wants the alternate defense instruction, if the defendant simply requests the instruction expressly. Fourth, in determining whether the record contains substantial evidence of a lesser included offense, the court should not consider the credibility of witnesses, instead leaving credibility determinations for the jury. Although this substantial evidence point was made with respect to lesser included offenses, no reason has been suggested why the law of substantial evidence is any different in the case of defenses.
In the instant case, a jury could find from the evidence presented that defendant was sought out and attacked by two angry women *43 much larger than he, that he was being beaten with pipes, that this beating accounted for his broken wrist, that one of the women tried to take his handgun, and that he struggled with that woman while the other continued to beat him. A jury could disbelieve defendant's testimony that the gun fired accidentally during this struggle. A jury could find that defendant fired the gun intentionally, hoping to end the attack upon him either by hitting one of his assailants or by firing into the air to scare off his attackers.
The question thus resolves into whether we should apply the principles set forth in the recent cases of Barton and Breverman to the instant situation, or whether we should literally apply the dictum from Sedeno, in a situation that presents the disturbing possibility that justice has miscarried. Since the issue of sua sponte duty or not has no place in this case, we rely on the general principles that the trial court has a duty to instruct on all material issues presented by the evidence and that "the jury must be allowed to `consider the full range of possible verdictsnot limited by the strategy, ignorance, or mistakes of the parties,' so as to `ensure that the verdict is no harsher or more lenient than the evidence merits.'" (Breverman, supra, 19 Cal.4th 142 at p. 160, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) While the scope of the court's duty to instruct varies as between lesser included offenses and defenses, and while it is sua sponte in some instances and only upon request in others, in the instant case the request was made. Whether the gun was fired in self-defense was a material issue presented by the evidence. Instructions were necessary to allow the jury to consider this key issue to "`ensure that the verdict is no harsher or more lenient than the evidence merits.'" (Ibid.) Although defendant could have forfeited his right to such instructions by failing to raise the issue (since only a defense, and not a lesser included offense, was involved), defendant did not fail to raise it. Hence the trial court should have allowed the jury to determine the self-defense issue by instructing upon it when requested.
We cannot conclude that the court's refusal to instruct on self-defense was harmless. In Breverman, the Supreme Court rejected the previous strict standard for review of instructional error, and adopted the Watson[4] standard, at least insofar as instructional error relating to lesser included offenses is concerned. Even assuming that the less-stringent Watson test applies here, the error was nevertheless prejudicial. Examining the entire record of this case leaves one with the distinct impression that it is reasonably possible that defendant would have obtained a more favorable outcome if the jury had been permitted to consider whether defendant fired the gun in self-defense. Accordingly, we must reverse.
IV. DISPOSITION.
The judgment of conviction is reversed.
NOTT, Acting P.J., and MALLANO, J.[*], concur.
NOTES
[1] Unless otherwise indicated, all further statutory references are to the Penal Code.
[2] As part of the defense, the quality control manager of the security firm defendant worked for testified that defendant had a permit to carry the weapon.
[3] Defendant is from Haiti, and his native language is Creole. A Creole interpreter was present at trial. The evidence showed that defendant spoke English, but with an accent.
[4] People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262882/ | 306 A.2d 667 (1973)
In re John A. SHUTTLE.
No. 184-72.
Supreme Court of Vermont, Washington.
June 5, 1973.
*668 John P. Ambrose of Burgess & Kilmurry, Montpelier, for plaintiff.
Robert W. Gagnon, State's Atty., for the State.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
KEYSER, Justice.
The petitioner brought a petition for post-conviction relief to the Washington County Court. He was charged in District Court, Unit No. 5, Washington Circuit, with three counts of feloniously obtaining money by false token under 13 V.S.A. § 2002. On September 22, 1971, petitioner was arraigned and pleaded not guilty. Official entry of his plea was delayed for twenty-four hours to give him an opportunity to confer with his assigned counsel, Attorney Brownell. On October 19, 1971, he withdrew his plea of not guilty and entered a plea of guilty to Count I. Counts II and III were thereupon nol prossed. Also the state's attorney agreed to make no recommendation as to sentence and that he would not seek an indictment as a habitual offender. This was in accordance with a plea bargain agreement entered into between the petitioner, his attorney, and the state's attorney.
Sentencing was initially set for December 21, 1971. The petitioner on that date had filed three pro se motions, and then his assigned counsel filed two other motions on December 28. Sentencing was on January 5, 1972, prior to which the district *669 court heard the five motions and denied each of them. The court sentenced the petitioner to serve not less than three and one-half nor more than ten years in Windsor State Prison with a credit on the minimum sentence of 106 days for time already spent in confinement.
After hearing the petition for post-conviction relief and making findings of fact, the county court denied the petition where-upon petitioner appealed.
Petitioner's first exception is that the district court erred in denying his motion that the late filing of the pre-sentence investigation report gave grounds for the dismissal of the case for lack of prosecution. The statute provides that the report be filed "not less than one nor more than three weeks" from the date it was ordered by the court, namely, October 19, 1971. 28 V.S.A. § 1208.
The findings show the written report was submitted to the district court on November 26, 1971, a period of thirty-eight days after the report was ordered by the court. During the time the probation officer was making his investigation, the petitioner escaped from the Regional Correctional Facility and was at large for ten days before being rearrested. When notified of this fact, the officer went to work on a backlog of other pre-sentence investigations and laid aside the report on the petitioner. This situation delayed the filing of the report in court and was brought about to a large measure by petitioner's own actions. The petitioner failed to establish that he was prejudiced by the late filing of the report. In fact, his minimum sentence was credited with the time he had been confined. The petitioner contends the filing requirement of the statute is mandatory and that it is not within the discretion of the court to extend the time to do so.
The obvious purpose of the statute is to furnish a case history of a respondent to the court before it imposes sentence. This information is an aid to the court and, likewise, it also can be of benefit to the respondent. But the statute does not create rights of a substantive nature in the respondent. The court complied with the statute and did not sentence the respondent until it had the report. The statute does not provide that the respondent shall be discharged if the report is late. This is a procedural defect only. In this case no harm to the petitioner is shown since his minimum sentence was reduced by the number of days he had been confined for lack of bail.
The petitioner has not demonstrated, as he must, in what respect he or his rights were prejudiced by the denial of his motion to dismiss. State v. Morse, 127 Vt. 137, 141, 241 A.2d 328 (1968). This exception is without merit.
Secondly, the petitioner claims his motion to dismiss should have been granted on the ground that the presiding judge of the district court, Judge Connarn, should have disqualified himself.
Disqualification of judges is found in 12 V.S.A. § 61(a), reading as follows:
"A . . . judge . . . shall not act in a judicial capacity in or as trier of a cause or matter in which he has been retained or acted as an attorney or counsel, or is interested in the event of such cause or matter. . . ."
Judge Connarn represented the state as attorney general before 1962 in making an argument in court in a post-conviction review proceeding brought by the petitioner. It also appears that the petitioner at one time was before Judge Connarn as a litigant, and the judge was subpoenaed to testify in federal court relating to prosecutions against the petitioner to that court for review.
The petitioner argues that Judge Connarn was biased and prejudiced. The finding of the trial court is to the contrary. It found that the petitioner's contention of bias and prejudice was unfounded *670 by the evidence. Bias and prejudice on the part of the court must be affirmatively and clearly shown. Eno v. City of Burlington, 125 Vt. 8, 209 A.2d 499 (1965). See also Morse v. Morse, 126 Vt. 290, 291, 229 A.2d 228, 232 (1967), where it is said that "it must appear that it is the judge who is prejudiced against the party, and not that it is the party that is prejudiced against the judge."
The evidence and findings amply support the conclusion of the court that petitioner's claim "that Judge Connarn was biased and prejudiced is unfounded by the evidence." It is unfounded in law as well. Error on this point is not made to appear.
The petitioner next contends his plea of guilty was illegally obtained by means of coercion and misrepresentation on the part of his counsel.
The petitioner was represented by assigned counsel of his own choice after being arrested and arraigned. Attorney Julian Goodrich, his assigned counsel, was also representing him on other pending matters. Petitioner was charged with three felony crimes by false token which his counsel investigated and then conferred again with petitioner. This conference was transcribed and introduced into evidence.
The transcript of the conference clearly indicates that petitioner was very concerned about his sentence. His counsel had previously discussed the matter at length with the state's attorney. From this, counsel learned that the state's attorney was considering a charge against the petitioner of being an habitual felon as the petitioner had a record of several previous felony convictions. Petitioner asked his counsel"Can you see what you can do?" The course of action to be taken in the case was left with the petitioner. He was told by his counsel"I suggest you think about whether you want a trial." The ultimate result was that the plea bargain agreement heretofore mentioned was entered into. It was consummated by the plea of not guilty being withdrawn on October 19, 1971, and a plea of guilty being entered to Count I, and Counts II and III being nol prossed. The other provisions of the agreement were carried out by the state's attorney.
Before the court accepted petitioner's plea of guilty, he admitted that his plea was free, voluntary, and made without threat. The transcript of the proceedings on October 19, 1971, leaves no doubt that petitioner was made well aware of the charge in Count I, his right to a jury trial, the effect and consequences of his plea and the penalties under the statute. He also was asked by the state's attorney whether he was "satisfied with Mr. Goodrich as your counsel and what he has done for you" to which he answered "Yes." The record bears out the conclusion that he was wisely and properly advised by his counsel.
The court in this case concluded that petitioner's plea "was voluntary, and not coerced and under threat, intimidation or ignorance." Since this conclusion is sustained by the record and the subordinate findings, the petitioner is bound by his plea. In re Mossey, 129 Vt. 133, 139, 274 A.2d 473 (1971). See also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
The petitioner further maintains that the behavior of his counsel in procuring a plea of guilty comprises incompetence to the extent that the accused was prevented from fairly presenting his defense.
The evidence establishes that the petitioner admitted in open court that he was satisfied with Mr. Goodrich as his counsel and with what he had done for him. Our search of the record fails to show that this point of incompetency of counsel was alleged in his petition or raised in the court below. Thus, the court was given no opportunity to rule on the question or make findings regarding it. In this circumstance, being raised here for the first time, it is not for our consideration. *671 State v. Morse, supra, 126 Vt. at 139, 229 A.2d 228.
We comment in passing, however, that a review of the record discloses nothing whatever from which it could be inferred that the conduct of petitioner's counsel was anything but fair, proper and notably competent.
When a trial court appoints a member of the bar in good standing as counsel for a respondent in a criminal proceeding, there is a presumption that the counsel is competent. State v. Rushford, 127 Vt. 105, 109-110, 241 A.2d 306 (1968). There was no evidence produced to override this presumption.
The petitioner next contends that he had a right to see the pre-sentence investigation report. This is not a matter of right but lies within the sound discretion of the court. State v. Morse, 126 Vt. 314, 318-319, 220 A.2d 232 (1967). The burden was on the petitioner to show that the district court abused its discretion in not permitting him to see the report. He had full benefit of it as his counsel examined the report prior to sentencing and discussed it with the petitioner.
The petitioner made no request of the court for a copy of the report. Neither did he challenge it in any manner although he testified there were some inaccuracies in it. No abuse of discretion appears.
Lastly, the petitioner asserts he was denied due process in district court in violation of his right guaranteed in the Fourteenth Amendment of the United States Constitution.
The petition brought by the petitioner states his "Contentions", one of which was that he was "Denied Bail". He later contended in his petition "that he was denied and refused Due process of Law and Equal protection of the law", but no facts are stated in support of this claim.
The court found as follows:
"39. Petitioner claims he was denied bail, but the evidence is undisputed that at his arraignment on 22 September 1971 the Court set bail at $2,000.00 on each Count, and on his change of plea on 19 October 1971 the Court set bail at $4,000.00 on Count I.
There is no evidence that petitioner at any time could furnish bail in any amount."
The petitioner now argues in this Court that the bail proceedings on September 22, 1971, did not conform to 13 V.S.A. § 7553a(d). The court fixed bail on each of the three counts at $2,000, cash or bail bond. After this was done, Attorney Brownell, a member of the law firm with Attorney Goodrich, approached the court to speak in behalf of Attorney Goodrich who had just been assigned as counsel for the respondent but was not present.
Mr. Brownell asked, with respondent's approval, that the respondent "be released without bail as he is without means to furnish bail, in order to care for his family." The court (judicial officer) did review the conditions he had imposed, but refused to reduce the bail and stated reasons for not doing so.
Under the facts 13 V.S.A. § 7553a(d) does not apply as the change in bail conditions was not requested by the respondent "after making a reasonable effort to meet the conditions of release." No further review was requested by the respondent.
After the respondent pleaded guilty to Count I and the two remaining counts had been nol prossed, the court fixed bail at $4,000.00 pending imposition of sentence. The respondent argues this action was not in accordance with the guidelines set forth in 13 V.S.A. § 7553a. That section, however, relates to "Release in non-capital cases prior to trial" and was not applicable to setting bail after conviction.
The order denying petitioner's petition is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262903/ | 18 Md. App. 407 (1973)
306 A.2d 560
JOHN A. SHADE
v.
STATE OF MARYLAND.
No. 735, September Term, 1972.
Court of Special Appeals of Maryland.
Decided July 11, 1973.
The cause was argued before ORTH, C.J., and POWERS and GILBERT, JJ.
Howard L. Cardin for appellant.
George A. Eichhorn, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State's Attorney for Baltimore City, and Keith Meiser, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
GILBERT, J., delivered the opinion of the Court.
The appellant, John A. Shade, was ordered incarcerated for a period of three years following a probation revocation hearing in the Criminal Court of Baltimore. The case against appellant first started on February 17, 1971, when the appellant was convicted of three indictments of lottery violations, Md. Ann. Code Art. 27, §§ 360 & 362, and a violation of Code of Public Local Laws of Baltimore City (Everstine, 1969) Art. 19, § 7 (Flash Paper).[1]
On appeal to this Court from the order revoking probation, Shade contends that the order is a nullity because the transcript of the trial of the criminal charges clearly indicates that Shade was never placed on probation. He argues that if there was no probation there could be no violation of that probation, and ergo, the hearing judge erred in ordering Shade's confinement.
*409 In order to resolve the issue, it is necessary to examine the transcript of the original trial. That transcript discloses that Shade was sentenced to one year's imprisonment and was fined $1,000.00, with costs, on each of three indictments. On the fourth indictment, which is not before us, see n. 1, Shade was fined $250.00 and costs. The following statement by the trial judge then appears:
"All fines are to be consecutive, and the prison sentences on Mr. Shade are to run consecutively also. The prison sentence will be suspended for the reasons which I have already stated, upon the payment of fines and costs."[2] (Emphasis supplied).
The appellant raises two additional issues, but in view of our disposition, we find it unnecessary to discuss them. We shall confine our tractate to the question of whether vel non the hearing judge erred in his finding that the appellant had been placed on probation by the trial court.
"Probation" has been defined in Sutherland, Principles of Criminology, (4th ed.) as:
"... [T]he status of a convicted offender during a period of suspension of the sentence in which he is given liberty conditioned on his good behavior and in which the state by personal supervision attempts to assist him to maintain good behavior."
See H.B. Nutter, Probation in the Criminal Court of Baltimore City, 17 Md. L. Rev. 309 (1957). See also 59 Colum. L. Rev. 311 (1959).
The Maryland Legislature has conferred upon the trial courts the right to impose probation. Md. Ann. Code art. 27, *410 §§ 639-641 A.[3]See Watson v. State, 17 Md. App. 263, 301 A.2d 26 (1973); Bartlett v. State, 15 Md. App. 234, 289 A.2d 843 (1972) aff'd 267 Md. 530, 298 A.2d 16 (1973); Knight v. State, 7 Md. App. 313, 255 A.2d 441 (1969).
At the hearing, appellant's counsel argued that there was nothing in the transcript of the February 17, 1971 trial that showed that appellant had been placed under probation. The judge responded that there was in the record a "carbon copy of a probation order" which states:
"Ordered by the Criminal Court IV of Baltimore this 17th day of Feb. 1971, that the sentence Three (3) yrs. the Dept. of Correctional Services and fined $3,000.00 and costs in this case be and the same are hereby suspended for a period of Three (3) yrs. from the date hereof, upon condition of good behavior; and subject to the following other conditions: W/O supervision...."
The hearing judge also said:
"... [T]he signed order of probation and the docket entries[4] prevail over any possible omission by the court reporter of that provision."
He further opined that he was "inclined to think" that the failure of the transcript to show a suspension of the sentence upon conditions of good behavior was "an omission." We *411 cannot, however, concur in that opinion. The transcript of the trial, unless shown to be in error, takes precedence over the docket entries, see Williams v. State, 7 Md. App. 241, 254 A.2d 376 (1969),[5] which are presumably made at a later point in time than the taking of a simultaneous transcript.
As long ago as Weighorst v. State, 7 Md. 442 (1855), the Court of Appeals observed, at 450:
"It has always been the habit of clerks to take minutes and docket entries of the court's proceedings, and, subsequently, to enter them at length in technical language, according to established forms. This is necessary to the dispatch of business, and relieves these officers from the inconvenient, if not impracticable, labor, of making correct full records of proceedings as they transpire. In legal contemplation they are made under the eye of the court, and by its authority, and when not properly entered or extended, the error may be corrected."
The unilateral perfunctory execution by the trial judge of an "Order for Conditional Suspension of Sentence" may not change the conditions imposed at the time of sentencing, nor does it, per se, give rise to a rational inference that the probationer knew of its terms or of its existence. A sentence that is suspended upon the happening of a certain condition cannot, after the condition has been satisfied, be amended so as to increase the nature or extent of the condition, nor may additional conditions be imposed as this would constitute an increase in the sentence.
The only "condition" that we perceive present in the trial judge's suspension of the sentences was the payment of fines and costs. Fines totalling $3,250.00 and costs of $91.75 were paid to the Sheriff of Baltimore City on the day following *412 the trial, i.e., February 18, 1971. Thereafter, a report dated February 19, 1971 was sent to the trial judge from the Deputy Director of Probation. The report stated in part:
"On February 17, 1971 the attached [Order for Conditional Suspension of Sentence] was delivered to the Probation Department. We assumed we had the responsibility to see that Mr. Shade paid the amounts ordered by February 19, 1971, however, Mr. Shade was not brought to the Probation Department at that time. There seemed to be some confusion as to whether Mr. Shade was going to make full direct payment to the Sheriff's Office or if he would pay through the Probation Department.
On February 19, 1971, a Deputy Sheriff escorted Mr. Shade to us and at that time confirmed that full payment had been received by the Sheriff.
We wish to make Your Honor aware that Mr. Shade had complied with the Order of the Court but that we did not officially open a case in the Probation Department because he had already made full payment prior to our initial contact with him."
We note that there is nothing in the report from the Probation Department that would give rise to a belief that Shade was ever advised that he was on probation for a period of three years. In fact a contrary view is more likely to be supported by the language of the report, which indicates that Shade was not brought to the Probation Department until after the payment of the fines and costs. A case file was not officially opened on Shade by the Probation Department because Shade had "complied with the Order of the Court."[6]
*413 We think that in all probability the trial judge did intend to suspend Shade's sentence upon condition of "good behavior" for a period of three years. Irrespective of the judge's intentions, however, the record before us is clear. The only condition actually imposed upon appellant for the suspension of the sentences was that he pay the fines and costs. When that condition was met, on the day following the trial, the sentences of imprisonment were then generally suspended, and the court was without authority to strike the suspended sentence and order Shade's confinement.
We shall, for the reason hereinabove stated, reverse the order revoking probation, and we direct the Clerk of the Criminal Court of Baltimore to correct the docket entries to reflect that the sentence on each indictment, i.e., 6604, 6605 and 6606, Docket 1970, is to be suspended upon payment of the fine and costs.
Order revoking probation reversed.
Costs to be paid by the Mayor and City Council of Baltimore.
NOTES
[1] This conviction was not made part of the record before this Court.
[2] The reasons stated by the trial judge were:
"... I don't think that the numbers operation would be extremely discouraged by sending Mr. Shade to jail. I will impose fines and jail sentences, but then under the circumstances, I will not require Mr. Shade to serve any time. It's a type of operation that I ordinarily would, but I am cognizant of the fact that as you say, Mrs. Shade is not in good health, and there are six children in the family."
[3] Md. Ann. Code art. 41, § 107(f) defines the term, Probation to mean:
"... [T]he conditional exemption from imprisonment allowed any prisoner by suspension of sentence in the circuit court for any county of this State or in the Criminal Court of Baltimore. The condition of any order of probation shall be determined solely by the judge granting the same."
[4] The docket entry on the first conviction reads as follows:
"Judgment: One (1) yr. c/o Department of correctional Services and fined $1,000.00 and one-half (1/2) costs, sentence suspended, Probation o/c good behavior for three years, pay fine and one-half (1/2) costs by 19 Feb. 1971."
Similar entries were made in the docket as to the other lottery indictments except that the sentences and fines were noted to be consecutive to the above quoted disposition.
[5] See also Roberts v. State, 219 Md. 485, 150 A.2d 448 (1959); Stockton v. State, 487 S.W.2d 69 (Court of Crim. App., Texas, 1972); State v. Rockerfeller, 9 Ariz. App. 265, 451 P.2d 623 (1969); People v. Hymes, 161 Calif. App.2d 668, 327 P.2d 219 (1958); People v. Shannon, 110 Calif. App.2d 153, 241 P.2d 1007 (1952).
[6] We are advised that the procedure in Baltimore City following a defendant's being placed on probation, even if it is to be "without supervision" or subject only to payment of fines and costs, is that the defendant is escorted by a deputy sheriff to the Probation Department where he is interviewed and advised of the terms of his probation. He then signs a format that has been stamped on a copy of the Probation Order, thereby acknowledging the terms of his probation. This procedure was not adhered to in the instant case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262860/ | 306 A.2d 186 (1973)
James J. SOUSA
v.
Richard CASEY et al.
No. 1738-Appeal.
Supreme Court of Rhode Island.
June 18, 1973.
*188 Clifford J. Cawley, Providence, for plaintiff.
Robert J. McOsker, City Sol., David J. Kehoe, Asst. City Sol., for defendants.
OPINION
PAOLINO, Justice.
The plaintiff brought this civil action against the defendants alleging that on March 17, 1966, he sustained severe personal injuries while being arrested for an alleged motor vehicle violation. The jury returned a verdict against each defendant in the sum of $4,500 and judgments thereon were entered in the Superior Court. The case is here on appeal and cross-appeal filed by the defendants and plaintiff respectively.
The issues raised by the parties make necessary a rather detailed recital of the travel of this case.
On March 13, 1968, plaintiff filed a complaint in the office of the clerk of the Superior Court in Providence, pursuant to the provisions of G.L. 1956 (1969 Reenactment) §§ 9-5-20[1] and 9-1-12,[2] against " * * * John Doe, John Smith, John Jones, et al., fictitious names of certain police officers of the City of Providence * * * the true names and identity of said police officers being unknown to the plaintiff at this time."
The complaint further alleges that on March 17, 1966, plaintiff "was arrested by certain members of the Providence Police Department * * * (the names and identity of said police officers being unknown to the plaintiff) for an alleged motor vehicle violation * * *" and that he " * * * was severely and unmercifully beaten by said members * * * who used excessive force in arresting * * *" for the alleged motor vehicle violation. The complaint also contains an allegation that plaintiff had sought to determine the names of the arresting officers on numerous occasions, but that such information had been withheld from him by the Providence Police Department.
On March 30, 1968, a special entry of appearance was filed on behalf of the persons named as defendants, together with a motion to dismiss the complaint on the grounds of lack of jurisdiction, insufficiency of process, and insufficiency of service of process. On May 14, 1968, an amended motion to dismiss was filed with an additional ground, namely, that there was a criminal complaint outstanding against plaintiff and that plaintiff, although aware of the same, refused to submit himself to the jurisdiction of the courts of this state.
On May 20, 1968, plaintiff first learned the names of defendants in this case by way of a deposition in a companion case entitled "James J. Sousa vs. David R. McGovern, in his capacity as Treasurer of the City of Providence, C.A. No. 68-1118." In that deposition Lieutenant Thomas R. Ryder *189 of the Providence Police Department informed plaintiff of the names of these defendants. It also appears that in a prior deposition, C.A. No. 68-1118 held on April 11, 1968, Lieutenant Ryder, on advice of counsel for defendant, David R. McGovern, refused to furnish plaintiff with the names of the officers who had arrested plaintiff.
On May 23, 1968, plaintiff filed a motion to amend his complaint by substituting the real names of defendants for fictitious names used in the original complaint.
On June 6, 1968, a justice of the Superior Court heard plaintiff's motion to amend and defendants' motions to dismiss. He granted plaintiff's motion and denied defendants' motions without prejudice to renewing the motions after defendants were served.
On June 7, 1968, plaintiff filed the amended complaint and on June 13 and 14, 1968, defendants were served with copies of the amended complaint and summonses.
The defendants filed motions to dismiss the complaint on the ground that it was not commenced within the statutory time prescribed in G.L. 1956 (1969 Reenactment) § 9-1-14.[3] These motions were heard on October 3, 1968, and denied.
Each of the defendants then filed an answer containing two defenses. In the first they pleaded that they were without knowledge or information sufficient to form a belief as to the truth of the allegations contained in plaintiff's amended complaint. In the second they pleaded the statute of limitations. The answers were subsequently amended by adding a third defense, that the actions of defendants were justified as they were made pursuant to a lawful arrest.
The case proceeded to trial before a justice of the Superior Court and a jury. The defendants again renewed their motions to dismiss but they were denied. The plaintiff then moved for judgment on the pleadings in accordance with Super. R. Civ. P. 12(c). The trial justice denied this motion.
After the jury returned the verdicts, defendants filed a motion for a new trial, and plaintiff filed a motion for an additur or a new trial on the question of damages only. The trial justice denied defendants' motions. He granted plaintiff's motion for a new trial, unless defendants consented to an additur of $5,000.
The defendants did not file the additur. Instead they filed an appeal to this court from (1) the judgments on the verdicts, (2) the denial of their motion for a new trial, and (3) the granting of plaintiff's motion for an additur or a new trial on damages.
The plaintiff filed an appeal from (1) the order of the Superior Court denying his motion for judgment on the pleadings, and (2) from the order of the Superior Court denying that portion of his motion for a new trial on the question of damages only or in the alternative for an additur.
As we have previously stated, this action resulted from an incident involving plaintiff's arrest by defendant police officers for an alleged motor vehicle violation. The plaintiff testified in substance as follows. Shortly after midnight on March 17, 1966, he was operating his motor vehicle on Weybosset Street in Providence. At the intersection of Dorrance Street he stopped at a red traffic light and, while so stopped, became engaged in a conversation with the occupants of another motor vehicle. As a result of that conversation he *190 wanted to get away from them. Afraid of bodily harm from the occupants of the other car, when the light turned green he proceeded down Weybosset Street along a route which took him to North Main Street. The other vehicle was following him. He had to stop at another red light. When this light changed to green he proceeded at a speed of up to 45 to 60 miles per hour for a distance of approximately one-half mile along North Main Street until he noticed what appeared to be a police car. He kept on going, beginning a high-speed flight along streets which he did not know, to avoid being apprehended by the police officers who were then chasing him.
His flight ended at the entrance to Swan Point Cemetery where plaintiff testified he stopped his auto, saw the police car 200 or 300 feet away, turned off his motor and his lights. Then, hearing what he described as a hissing sound, he got out of his car and knelt down beside his right rear tire to see if the tire was leaking air. At this point the police car entered the cemetery driveway in a position facing his car, and then the police left their car and went into the woods nearby, looking for him. The next thing he knew he heard voices coming from the woods.
The plaintiff's testimony continues as follows. Deciding that this might be an opportunity to "just get away from it all," he re-entered his auto, started his motor and was "just getting ready to roll" when his path was blocked by another police vehicle. As the police approached he reached into the glove compartment for his automobile registration. Upon being told to get out of the car by the police, he managed to get about three quarters of the way out when he was pulled the rest of the way by the police, pushed over the hood of the police cruiser, handcuffed with his hands behind his back and taken to a grassy area, to the right of his car, where he received two sharp stings on the top of his head and then punched in the face "just as fast as they could punch me" for a period of 30 to 40 seconds. He testified that his head was cut open in two places, he had blood running down his face, his eye was swollen, his nose was fractured, and the whole side of his face and his nose was bleeding. After this happened the police said "this kid has to go to the hospital" and then he was taken to the rear of the patrol wagon and pushed into it in such a way that he had to lie on the floor of the wagon for the trip from the cemetery to the Rhode Island Hospital where he was treated and subsequently admitted as a patient.
The plaintiff introduced the hospital records from the Rhode Island Hospital and Massachusetts Eye and Ear Infirmary, which described the treatment he received at those institutions. He also testified regarding his injuries and said that he experienced pain across his chest and in his head and nose during the first two weeks of his stay at the Rhode Island Hospital.
Doctor Robert S.L. Kinder, a practicing opthalmologist, who appeared for plaintiff, described the injury to plaintiff's eye and the operation which was required to repair the detached retina which he suffered. On cross-examination he stated that the hospital records disclosed no complaints of pain by plaintiff during his stay at the Rhode Island Hospital.
The defendants testified after being called by plaintiff under the adverse witness statute and also when called in the presentation of their own defense. Officer Joseph Mulcahey, the driver of the vehicle in which defendant Brown was riding, also appeared for defendants. Officer Mulcahey and defendants Brady and Brown testified about the chase of plaintiff's vehicle.
Officer Mulcahey testified that plaintiff was first seen coming out of Industrial Drive onto North Main Street at a high rate of speed; that plaintiff proceeded along North Main Street, slowed down momentarily, and then proceeded at a high rate of speed through a red traffic light; and that upon seeing this, a high-speed chase of plaintiff followed, through a number *191 of city streets. The chase came to an end at the entrance to Swan Point Cemetery, where Mulcahey and Brown pulled up behind plaintiff's parked car. They got out of their vehicle and went directly to plaintiff's car, but finding no one there, they assumed that the driver had fled into the nearby woods. They both proceeded to enter the woods, looking for plaintiff. The defendant Brady followed them from some distance behind.
Officer Philip Brady was sent to request further assistance, while Mulcahey and Brown continued their search. Hearing a voice say "We got him," Mulcahey and Brown came out of the woods and saw a person, later determined to be plaintiff, struggling with defendants Brady and Casey.
Officer Brady testified that when he came out of the woods he saw plaintiff and Casey struggling on the ground and that he went to assist Casey.
The defendant Casey testified in substance as follows. He had not taken part in the chase, but heard about it on the radio. He then took a position at a certain intersection and remained there until he heard that the car being chased had been abandoned at the main entrance to Swan Point Cemetery. He then proceeded to that location and arrived just as plaintiff was about to leave the area. He pulled up to plaintiff's car, in order to block its route of exit, when plaintiff and Casey got out of their respective cars. The plaintiff ran toward a grassy area, with Casey in pursuit. At this point, plaintiff turned and swung at Casey. Casey struck plaintiff twice with a blackjack on the top of the head and then the two struggled to the ground. While they were struggling, Brady came to Casey's assistance.
The defendant Brown and Officer Mulcahey testified that, as they emerged from the woods, they saw plaintiff and Casey and Brady struggling; that they went to assist in subduing plaintiff, which involved forcefully taking him to the police cruiser where plaintiff was handcuffed; and that then plaintiff was put into the police wagon and taken directly to the Rhode Island Hospital.
I
We consider first defendants' contention that the Superior Court erred in denying their motion to dismiss this action prior to trial. They argue that G.L. 1956 (1969 Reenactment) § 9-5-20, as amended by P.L. 1965, ch. 55, sec. 13, does not apply to the facts of this case and that consequently the amended complaint naming them as defendants and the summonses served upon them were issued and filed after the applicable two-year statute of limitations had expired. In the circumstances, they claim the Superior Court should have granted the motions to dismiss, which were filed prior to the amendment of the original complaint naming them as defendants, on the grounds of lack of jurisdiction. We do not agree. We hold that § 9-5-20 is applicable here.
At the January session, 1965, the General Assembly amended P.L. 1965, ch. 55, an act for simplification of practice and procedure in civil actions. In ch. 55, sec. 6 (now § 9-1-12), it changed the method of commencing a law suit for the purposes of the statute of limitations from the issuance of a writ to the filing of a complaint with the clerk, or the depositing of the complaint in the mail addressed to the clerk, or the delivery of the complaint to an officer for service. See note 2. At the same time the General Assembly, in ch. 55, sec. 13, amended G.L. 1938, ch. 514, sec. 17[4] (now *192 § 9-5-20) by substituting the words "summons and other process" for the word "writ." See note 1.
It is clear that the words "other process" in § 9-5-20 mean "complaint" because the use of a "complaint" is the method established by the Legislature to commence an action. In this same statute it amended the unknown defendant statute by substituting the words "summons and other process" for the word "writ."
Section 9-5-20 further provides that the "summons and other process" must be duly served and that it may be amended with or without terms as the court may order. However, there is nothing in our statute which says that the service must be made within the statute of limitations. Service must be made within a reasonable time after a complaint has been filed, absent a showing by the plaintiff that such delay was excusable. See Caprio v. Fanning & Doorley Constr. Co., 104 R.I. 197, 199-200, 243 A.2d 738, 740 (1968).
For convenience we summarize the important events in this case. On March 17, 1966, plaintiff sustained the injuries he now complains about. He knew that members of the Providence Police Department inflicted these injuries, but he did not know their names. On March 13, 1968, he filed the original complaint against unknown defendants pursuant to the provisions of § 9-5-20. The complaint alleges that the names and identity of the police officers were unknown to plaintiff and that although he had sought to determine the names of the officers on numerous occasions, such information had been withheld from him by the Providence Police Department. The defendants presented no competent evidence to contradict this allegation. In the circumstances plaintiff had the right under § 9-5-20 to file the complaint against unknown defendants.
On May 23, 1968, after he alleges he learned the names of defendants, he filed a motion to amend the complaint by inserting the names of the defendants in place of the fictitious names used in the original complaint. On June 6, 1968, the Superior Court granted this motion, as it had the authority to do under § 9-5-20. Service of the amended complaint was made on defendants on June 13 and 14, 1968, which was, in our judgment, within a reasonable time. Since the filing of the complaint on March 13, 1968 tolled the statute of limitations and since the summonses and complaint were duly served, the Superior Court did acquire jurisdiction over defendants within the period of the statute of limitations and, therefore, defendants' motion to dismiss this action prior to trial was properly denied.
The question of whether § 9-5-20 is applicable here has raised a question of first impression in this state. We have decided this issue on the basis of our own statute. The California cases[5] cited by defendants not only differ factually from the case at bar, but they rest on statutory provisions which also differ from ours. In the circumstances we do not deem it necessary to discuss them here.
II
The defendants' next contention is that, in passing on their motion for a new trial, the trial justice failed to comply with the guidelines set forth in Dawson v. Rhode Island Auditorium, Inc., 104 R.I. 116, 242 A.2d 407 (1968). We do not agree.
It is true, as defendants state, that the portion of the trial justice's decision relating to the question of liability is brief, but *193 it is fair to infer from what the trial justice said in discussing this issue that defendants did not argue this issue strenuously and that they were interested in the question of damages. In referring to the question of liability the trial justice said:
"* * * in fact I don't think he argued at all, what he was primarily interested in is question two and question three as to the amount, interested in the amount that the Defendants would be liable to the Plaintiff."
The real issue in this case is whether defendants used more force than was reasonably necessary in arresting plaintiff. See Williams v. Altruda, 74 R.I. 47, 58, 58 A.2d 562, 568 (1948).
The testimony on this issue was conflicting and it is fair to assume that the jury accepted plaintiff's version of what happened on this question. In referring to this question the trial justice said:
"There is no question there was ample evidence to support the jury's verdict on the question of liability against all three Defendants. Strong evidence that all parties participated, they all used more than reasonable force to subdue the Plaintiff."
Then, after describing the chase by the police, he said:
"* * * there is no evidence that the Plaintiff had a gun on him or was armed in any manner, yet he received unusual injuries as a consequence of the three police officers attempting to subdue him."
The fact that his decision on the issue of liability was brief and that he did not elaborate on the specific testimony on which he relied in denying defendants' motion is not fatal. As this court said in Turgeon v. Rocks, 96 R.I. 353, 356, 191 A.2d 606, 607 (1963):
"In passing upon a defendant's motion for a new trial, the trial justice while required to state the reasons for his decision is given a wide latitude with respect to the form in which such reasons are stated and in the ordinary case he is not required to set them out at length in any express terms."
In arguing that the trial justice failed to perform his duty in passing on their motion for a new trial, defendants refer to the trial justice's statement that although defendants claimed that plaintiff was the aggressor no charge of assault and battery was brought against him by defendants. It appears from the decision that this statement was made after the trial justice had concluded that there was ample evidence to support the jury's verdict. In fact, he indicated that this was not important and that it was collateral matter. In the circumstances we find no merit in defendants' argument that this statement by the trial justice constitutes reversible error.
We are satisfied that in passing on the issue of liability, the trial justice complied with the rules governing a trial justice in passing on a motion for a new trial. It is clear from his decision that he, like the jury, accepted plaintiff's testimony, and rejected defendants', on the question of whether defendants used more force than was reasonably necessary in arresting plaintiff. On an appeal from an adverse ruling on a motion for a new trial in cases where the trial justice has performed his duty, the appellant (defendants here) must persuade this court that the trial justice in deciding the motion was clearly wrong or overlooked or misconceived material evidence on a controlling issue. Dawson v. Rhode Island Auditorium, Inc., supra.
In the case at bar defendants have failed to persuade us that the trial justice overlooked or misconceived any material evidence or that he was otherwise clearly wrong. Their argument that his failure to mention the Rhode Island Hospital report in his decision means that he overlooked it is without merit. That report contains entries which are consistent with his finding that plaintiff sustained serious injuries. In *194 the circumstances we cannot disturb his decision insofar as it relates to the question of liability.
Other contentions made by defendants, though not specifically referred to, have been considered by us and found so lacking in merit as to require no discussion.
III
We come now to the questions raised by plaintiff in his appeal. The plaintiff argued that the trial justice erred in denying his motion for judgment on the pleadings on the question of liability under Super.R.Civ.P. 12(c). However, inasmuch as the jury returned a verdict for plaintiff, and defendants' appeal from the judgments accordingly entered has been denied and dismissed, plaintiff's contentions regarding the trial justice's denial of his motion for judgment on the pleadings became academic and require no further discussion.
IV
The plaintiff next contends that in passing on his motion for an additur the trial justice erred in interpreting the jury's verdict to be one verdict in the amount of $4,500 and in applying the law of joint tortfeasors to this case. We do not agree.
Before discussing the specific arguments made by plaintiff on this question we address ourselves to the law generally governing situations such as the one present here.
It is generally well settled that in a civil action for assault or battery, where two or more defendants are found liable, their liability is joint and several and the suit may be maintained against any one or all of them. There can be but one verdict for a single sum against all who are found guilty of the tort. Marriott v. Williams, 152 Cal. 705, 711, 93 P. 875, 878 (1908); see also Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132 (1964); Warren v. Westrup, 44 Minn. 237, 46 N.W. 347 (1890). For a general discussion of this question see also 6 Am.Jur.2d, Assault and Battery, § 127 (1963) and Prosser, Torts, §§ 43-48 at 258-81 (3d ed. 1964).
We come now to the facts in the case at bar on which plaintiff bases this argument. In his instructions to the jury, to which no objection was made, the trial justice charged that these were three civil actions, that the plaintiff could recover from any one or more of the defendants, and that the jury must bring in three separate verdicts because these were three separate defendants. He also charged:
"* * * if you find for the Plaintiff you must all unanimously agree as to one sum for the Plaintiff and having determined the amount you assess the same amount against the Defendant or Defendants."
In passing on plaintiff's motion for an additur the trial justice stated that plaintiff was entitled to recover no more than the sum of $4,500 plus interest and that whether he collected it from one defendant or a portion from all the defendants was not for the court to pass upon. After referring to the instructions he gave on the question of damages, he said:
"* * * this Court handled this matter as a joint tort feasor, three of them, if liable, would be liable jointly towards the Plaintiff, so the Court's conclusion on the jury's verdict is that the sum, the Plaintiff can only recover the sum of $4,500 against all of the Defendants and not a total sum of $13,500 against all Defendants."
The plaintiff contends that the trial justice did not, in his instructions to the jury, treat these cases as a joint tortfeasor situation and that in fact and in law he could not have so treated them. He argues in substance that our Joint Tortfeasors Act, G.L. 1956, ch. 6 of title 10, applies only to joint tortfeasors charged with negligence and not to a case such as this which involved assault and battery.
*195 We shall consider the latter contention first. There is no merit to plaintiff's claim that the Joint Tortfeasors Act applies only to cases involving negligence. The very nature of the Act refutes this claim the act involves contribution among joint tortfeasors. There is nothing in the language of § 10-6-2[6] excluding assault and battery, which are torts, from the Act. See Prosser, Torts, §§ 9, 10 at 34-41 (4th ed. 1971). Since plaintiff is suing all defendants "for the same injury," and not for separate or different injuries, we hold that the Joint Tortfeasors Act is applicable here.
The record does not support plaintiff's argument that the trial justice did not treat these cases as a joint tortfeasor situation in his instructions to the jury. A reading of his charge as a whole shows the contrary to be true. It would unduly prolong this opinion to discuss his charge in detail. We are satisfied from what we have read that nothing he said, when read in the context of the entire charge, could be construed to mean that plaintiff could collect more than one sum as damages.
Nor is there any merit to the plaintiff's argument that the trial justice was in error in interpreting the jury's verdict to be one verdict against all the defendants as joint tortfeasors. The same is true of his argument that on the basis of the instructions given, the jury felt that if they brought in three separate verdicts of $4,500 each against each defendant, plaintiff would be entitled to $13,500. This argument is purely speculation and not supported by this record.
The appeal of the defendants is denied and dismissed, the cross-appeal of the plaintiff is denied and dismissed, and the case is remitted to the Superior Court for a new trial on the question of damages only unless the defendants shall, on a date to be fixed by the Superior Court, file in the office of the clerk of that court an additur of $5,000. If such additur is filed, the Superior Court is directed to enter judgmentment for the plaintiff on the verdicts as raised by the additur.
POWERS, J., participated in the decision but retired prior to its announcement. JOSLIN and DORIS, JJ., did not participate.
NOTES
[1] General Laws 1956 (1969 Reenactment) § 9-5-20, reads as follows:
"Writs and other process against unknown defendant. Whenever the name of any defendant or respondent is not known to the plaintiff, the summons and other process may issue against him by a fictitious name, or by such description as the plaintiff or complainant may select; and if duly served, it shall not be abated for that cause, but may be amended with or without terms as the court may order."
[2] General Laws 1956 (1969 Reenactment) § 9-1-12, reads as follows:
"When action is commenced for purposes of statute of limitations. An action is commenced for purposes of the statute of limitations when the complaint is either filed with the court, deposited in the mail addressed to the clerk or delivered to an officer for service."
[3] General Laws 1956 (1969 Reenactment) § 9-1-14, reads as follows:
"Limitation of actions for words spoken or ersonal injuries. Actions for words spoken shall be commenced and sued within one (1) year next after the words spoken, and not after. Actions for injuries to the person shall be commenced and sued within two (2) years next after the cause of action shall accrue, and not after."
[4] General Laws 1938, ch. 514, sec. 17 read as follows:
"Whenever the name of any defendant or respondent is not known to the plaintiff, the writ may issue against him by a fictitious name, or by such description as the plaintiff or complainant may select; and if duly served, it shall not be abated for that cause, but may be amended with or without terms as the court may order."
[5] The cases cited are:
Lipman v. Rice, 213 Cal.App.2d 474, 28 Cal.Rptr. 800 (1963); Schroeter v. Lowers, 260 Cal.App.2d 695, 67 Cal. Rptr. 270 (1968); Rosencrantz v. Rogers, 40 Cal. 489 (1871).
[6] General Laws 1956 (1969 Reenactment) § 10-6-2 defines joint tortfeasors as follows:
"For the purposes of this chapter the term `joint tortfeasors' means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262867/ | 113 N.H. 310 (1973)
STATE OF NEW HAMPSHIRE
v.
PAUL S. KAWA
No. 6196.
Supreme Court of New Hampshire.
June 29, 1973.
Warren B. Rudman, attorney general, and Thomas D. Rath, attorney (Mr. Rath orally), for the State.
Orr & Reno and William L. Chapman (Mr. Chapman orally) for the defendant.
GRIFFITH, J.
Defendant Paul S. Kawa was charged with second-degree murder in the death on September 1, 1969 of John L. Zajicek at Bartlett. On June 4, 1970, a jury found the defendant guilty of first-degree manslaughter and he was sentenced to not more than thirty years nor less than fifteen years in the State prison. Defendant's exceptions were reserved and transferred by the Trial Court, Loughlin, J.
Defendant urges in this court that the trial court erred in refusing to submit the issue of self-defense to the jury and further that if a new trial is not ordered the sentence imposed is excessive and his exception to the refusal of the trial court to grant a motion to reduce it should be sustained.
The evidence at the trial established that on the night John L. Zajicek was killed there was a dance at the Skidaddlers Ski Club in Bartlett. This was a private party attended by members of the Steinmeister Ski Club and the Skidaddlers Ski Club. On that night the defendant had driven from Manchester with a rifle in the car with the intention as he testified of hunting for bear. He stopped at the American Legion in Conway and stayed there from about 6:00 p.m. *311 to sometime after 10:30 p.m. consuming, according to his estimate, between six and nine drinks. On his way to Crawford Notch after leaving Conway he observed the activity at the Skidaddlers Ski Lodge and drove in, parking his car on the premises. According to the defendant he assumed he was entering a local club open to the public.
Defendant was at the party for some time drinking beer and dancing when his actions brought him to the attention of an officer of the Skidaddlers Ski Club. This officer, a Mr. Moody, determined by inquiry that Kawa was not a member of either club and appeared to be troublesome. Moody then spoke to Kawa, told him that he was at a private party and asked him to leave. Kawa was permitted to finish the beer he was drinking and the discussion between Moody and Kawa finally terminated with Moody agreeing with Kawa's statement that Moody was throwing him out. Kawa left the building without any physical altercation.
The defendant went to his car and obtained his rifle, a 30-30 Remington and loaded it. While the events from then on become confused, it appears Kawa first fired a shot into the steps of the porch on the building and, with threats, ordered into the building the people who were outside, went in and out of the building himself, and finally retreated toward his car screaming threats and obscenities at the fifty or sixty men and women at the party. Persons attempting to reason with him or disarm him were dissuaded by the threats of the rifle and he threatened to shoot through cars at people who were hiding behind them. At this point the victim John Zajicek drove into the yard in the vicinity where defendant's car was parked. Kawa yelled "Get the hell out of here" at Zajicek several times and then fired through the Zajicek car window mortally wounding Zajicek. Defendant then threw his rifle down and was overpowered by the crowd.
The defendant's testimony was that he had no memory from the time Moody asked him to leave until he was firing a shot into the porch steps. He then testified that he realized what he had done and was afraid of what the people at the party would do to him if they got him. Kawa testified that his threats and actions subsequent to the shot were directed for the purpose of making good his escape. The *312 Zajicek car when it arrived appeared to block his escape in his car. He testified that he struck the barrel of his rifle against the window of the Zajicek car to break the window and emphasize his order to get out and the rifle then went off. Testimony of other witnesses was that the window of the car was some distance from the muzzle of the rifle when it was fired.
The trial court is not required to submit the issue of self-defense to a jury when there is no evidence that would support a claim of self-defense. On defendant's own testimony he terrorized fifty or sixty unarmed people with shots and threats from a rifle and finally shot and killed a person in an automobile who he thought might prevent his escape. Under no interpretation of this evidence could the jury find the killing was in self-defense. One hundred years ago Chief Justice Doe said in Aldrich v. Wright, 53 N.H. 398, 407 (1873): "The immense value at which the law appraises human life makes it legally reasonable, that the destruction of it, as a means of averting danger, should be resorted to only when the danger is immense in respect of consequences, and exceedingly imminent in point of time." The statement of the defendant, if believed that he feared violence from the crowd he had assaulted, could not be properly found by a jury to constitute evidence of such immense imminent danger as would permit destruction of human life to prevent it. See State v. Brough, 112 N.H. 182, 291 A.2d 618 (1972).
In addition it should be noted that the justification of self-defense is not available to an aggressor except under circumstances not present here. The requested instruction was properly refused. State v. Millett, 273 A.2d 504 (Me. 1971); 1 Wharton, Criminal Law and Procedure §§ 228, 229 (Anderson ed. 1957).
The defendant urges us to adopt the reasoning of the Criminal Code, RSA 627:4 (Supp. 1972), which will be effective November 1, 1973, and defines when self-defense is justified. While the statute does not appear to be helpful to the defendant on the evidence in this case we are not disposed to interpret it before it becomes the law.
The defendant excepted to the refusal of the trial court to reconsider and reduce its sentence which admittedly was *313 within the statutory limits. We find no reason to disturb the sentence in this case.
Exceptions overruled.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331278/ | 650 S.E.2d 762 (2007)
SHEELY
v.
The STATE.
No. A07A0892.
Court of Appeals of Georgia.
August 2, 2007.
*763 Cynthia Wright Harrison, for Appellant.
Paul L. Howard Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellee.
MIKELL, Judge.
A jury found Tierra Sheely guilty of armed robbery, false imprisonment, and possession of a firearm during the commission of a felony. Sheely claims in two enumerations of error that the trial court erred in denying her motion for a directed verdict of acquittal and that the verdict was contrary to the evidence. Finding no error, we affirm.
The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.[1]
On appellate review of the sufficiency of the evidence to support a conviction,
[w]e view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.[2]
Viewed in the light most favorable to the jury's verdict, the record reflects that on June 2, 2004, E.W. Thompson, then eighty-nine years old, was robbed at his home at 1325 Plaza Avenue by two individuals, a man and a woman, who entered while he was in the rear of the house. The victim described the intruders as "stout" and black. He testified that the man "held a gun on me" while the woman was "rambling" through the house. The two intruders made him give them his car keys and then drove off in the victim's car; after they left, he realized that they had also stolen his pistol. Thompson then called police.
Officer Jimmy Butler and Investigator Mike Conner of the Atlanta Police Department, who responded to the scene, testified at trial that Thompson told them at the scene that the robbers had tied him up when they entered his home. Butler, who arrived at the scene before Conner, testified that he observed duct tape still hanging from the victim's left wrist; Conner testified that the victim showed him the tape that the intruders had put around his wrists. The officers described the victim's demeanor at the scene as "real shaky" and "jittery."
After Conner spoke with Thompson, he interviewed Thompson's neighbor Greg Lewis, who was working that day on his house at 1317 Plaza Avenue, two doors down from the victim. Lewis told Conner that shortly before the robbery occurred, a man and a woman came into his front yard looking for work. He told them he had no work for them to do, and they left in the direction of Thompson's house. Lewis described the couple as heavy-set and the woman as having several tattoos. Conner testified that on August 4, 2004, he showed a photographic line-up to Lewis, and that within 30-35 seconds, Lewis positively identified Sheely as the female he had seen the day of the robbery. Lewis testified at trial that his earlier identification of Sheely was not positive; however, he also testified that he had not wanted to testify at all, and that he feared for his own and his family's safety.
Thompson's car was recovered three days after the robbery occurred, and one of Sheely's fingerprints was found on the outside of the passenger side of the car. Conner testified that when he interviewed Sheely, she admitted that she was at Thompson's residence at the time of the incident; that she never went inside; that a man named Marcus entered the home, came out again, and got in Thompson's car; and that she got in the car with Marcus and they left together.
*764 Sheely contends that the evidence was insufficient to support her convictions because the victim testified at trial that he was not tied up by the robbers, in contradiction to his earlier statement to police; because the description of the suspect's tattoos given by Lewis differed from the actual tattoos worn by Sheely; because Lewis testified at trial that he saw the suspects for only about 30 seconds and that his earlier identification of Sheely in the photographic line-up was not positive; and because Sheely's statement to Conner was neither recorded nor videotaped, and no one other than Conner was present when it was made. These contradictions or uncertainties in the evidence, however, do not render the evidence against Sheely insufficient.
That some evidence offered by a witness seems contradictory to his own or to some other's, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the trier[ ] of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.[3]
In particular, "identity is a question for the [trier] of fact, and . . . the credibility of the witness making such identification is not to be decided by this court. The jury decided this issue adversely to [Sheely], and we will not disturb its verdict."[4]
Sheely asserts that the state failed to prove the offense of armed robbery because the victim testified at trial that the gun held by the male intruder was not actually pointed at him. This testimony, however, does not mean that the intruders did not commit the offense of armed robbery. Thompson was clear in his testimony at trial that "the guy held a gun on me." Under OCGA § 16-8-41(a), "[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon."[5] "The element of `use' is present when the victim is aware of the weapon and it has the desired forceful effect of assisting to accomplish the robbery."[6] Sheely's reliance on Hicks v. State[7] is misplaced. There, the victim was asleep when the defendant took her billfold.[8] Because the theft occurred before the victim became aware that her attacker had a gun, his conviction for armed robbery was reversed.[9] In contrast, in the case at bar the evidence shows that before the robbery occurred, the victim was aware that the intruders had a gun.[10]
Sheely further complains that her confession to police was not corroborated as required by OCGA § 24-3-53[11] and was therefore insufficient to support her convictions. We disagree. Here, the testimony of Thompson and Lewis, as well as the evidence of Sheely's fingerprint found on the stolen car, all provide corroboration of her statement. "[C]orroboration of a confession in any particular satisfies the requirements of the statute."[12]
*765 The jury was authorized to find that Sheely was present when the crime was committed; that she entered the house with a male companion; that she participated in restraining the victim and stealing his revolver, car keys, and car; and that the robbery was accomplished "by use of an offensive weapon."[13] We conclude that the evidence was sufficient for a rational trier of fact to find Sheely guilty beyond a reasonable doubt of the crimes of which she was convicted.[14]
Judgment affirmed.
JOHNSON, P.J., and PHIPPS, J., concur.
NOTES
[1] (Citation and footnote omitted.) Oliver v. State, 270 Ga.App. 429(1), 606 S.E.2d 874 (2004); see OCGA § 17-9-1(a).
[2] (Citation omitted.) Walker v. State, 280 Ga.App. 457(1), 634 S.E.2d 93 (2006); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[3] (Citations and punctuation omitted.) Walker v. State, supra at 459(1), 634 S.E.2d 93. See also Smith v. State, 214 Ga.App. 631, 634(9), 448 S.E.2d 906 (1994) (weight to be given defendant's unrecorded statement to police is to be determined by the jury).
[4] (Footnote omitted.) Johnson v. State, 261 Ga. App. 98, 100(1), 581 S.E.2d 715 (2003).
[5] (Emphasis supplied.)
[6] (Citation, punctuation and footnote omitted.) Jackson v. State, 248 Ga.App. 7, 9(1), 545 S.E.2d 148 (2001).
[7] 232 Ga. 393, 207 S.E.2d 30 (1974).
[8] Id. at 394, 207 S.E.2d 30.
[9] Id. at 403, 207 S.E.2d 30.
[10] See Oliver v. State, 232 Ga.App. 816, 818(1), 503 S.E.2d 28 (1998) (distinguishing Hicks, this Court affirmed an armed robbery conviction where evidence showed that the theft was completed after victim saw that defendant was holding a knife).
[11] OCGA § 24-3-53 ("All admissions shall be scanned with care, and confessions of guilt shall be received with great caution. A confession alone, uncorroborated by any other evidence, shall not justify a conviction").
[12] (Citation and punctuation omitted.) Miller v. State, 268 Ga. 1, 2, 485 S.E.2d 752 (1997); Phanamixay v. State, 260 Ga.App. 177, 179(1), 581 S.E.2d 286 (2003).
[13] OCGA § 16-8-41(a), supra.
[14] Jackson v. Virginia, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331284/ | 125 Ga. App. 423 (1972)
188 S.E.2d 167
HILTON
v.
MADDOX, BISHOP, HAYTON FRAME & TRIM CONTRACTORS, INC.
46781.
Court of Appeals of Georgia.
Argued January 3, 1972.
Decided February 2, 1972.
*424 G. Ralph Burger, for appellant.
Shoob, McLain & Jessee, Earnest H. DeLong, Jr., Gregg Loomis, for appellee.
EBERHARDT, Judge.
Since the injury for which damages are sought was suffered August 7, 1968, this action was barred by the statute of limitation two years from that date unless the statute was tolled by the filing of the complaint.
It has long been the law of this State that "The filing of a declaration in the clerk's office, when service has been perfected as required by law, will be considered as the commencement of the suit, aliter where there has been no service." Ferguson v. New Manchester Mfg. Co., 51 Ga. 609. *425 "The mere filing of a declaration in office, unless followed by proper service upon the defendant, is not the commencement of suit." Cherry v. North & South R., 65 Ga. 634 (1). Accord: McClendon v. Hernando Phosphate Co., 100 Ga. 219 (2) (28 SE 152). "The filing of the petition is treated as the commencement of the suit only when followed by due and legal service." Cox v. Strickland, 120 Ga. 104 (7) (47 SE 912, 1 AC 870). "The debt secured by the mortgage having matured on March 7, 1897, and service of the petition and process to foreclose the mortgage not having been made until February 26, 1926, although the petition was filed March 6, 1917, one day before the statute attached, the mortgage was barred when service was perfected, which was in legal contemplation the commencement of the foreclosure proceeding." Simmerson v. Herringdine, 166 Ga. 143, 148 (142 SE 687). "In this State the filing of the petition in the clerk's office will be considered as the commencement of the suit, if service is perfected as required by law. But if no service is made, the mere filing of a petition will not suffice to authorize the action to be treated as commenced and perpetually pending. Filing followed by service creates a pending suit from the date of filing. But if there is no service, the process loses its vitality, and the effect mentioned does not result." McFarland v. McFarland, 151 Ga. 9 (2) (105 SE 596). "[T]he mere filing of the petition will not of itself operate to toll the statute of limitation. For, service is also a vital ingredient." Chance v. Planters &c. Cooperative, 219 Ga. 1, 4 (131 SE2d 541). "[I]f the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing so as to avoid the limitation. Poullain v. Poullain, 76 Ga. 420 (a) (4 SE 92); McFarland v. McFarland, 151 Ga. 9 (2) (105 SE 596); Burrow v. Dickerson, 108 Ga. App. 178 (132 SE2d 550)." Parker v. Kilgo, 109 Ga. App. 698, 700 (137 SE2d 333). "Limitation is suspended by the filing of a suit because the suit warns the defendant to collect and *426 preserve his evidence in reference to it." Barthel v. Stamm, 145 F2d 487, 491. Obviously, there is no warning of the defendant until he is served. "The defendant has no legal notice of the suit until served with a copy of the petition and process" and if the notice is to relate back, he must proceed with diligence in getting service perfected. Jordan v. Bosworth, 123 Ga. 879, 881 (51 SE 755). "The court has no jurisdiction of the defendant until after service of process; and accordingly it was held in the case of McClendon v. Hernando Phosphate Co., 100 Ga. 219, that while the suit commences when the petition is filed, it is not a `pending suit' between the parties until after service of process." Florida Central &c. R. Co. v. Ragan, 104 Ga. 353, 356 (30 SE 745). Accord: Cherry v. Gilbert, 124 Ga. App. 847 (3) (186 SE2d 319). "A person named in the record as a party is not in fact a party to the action unless he has been duly brought in by legal process or has voluntarily appeared and submitted himself to the jurisdiction of the court ... while the suit commences when the petition is filed, it is not a `pending suit' between the parties until after service of process." Webb & Martin v. Anderson-McGriff Hardware Co., 188 Ga. 291, 294 (3 SE2d 882).
Failure to pursue the matter with diligence and obtain service of the petition and process on the defendant did not toll the running of the statute of limitation prior to the enactment of the Civil Practice Act. Gulf Oil Corp. v. Sims, 112 Ga. App. 68 (143 SE2d 776); Smart v. Wilson, 117 Ga. App. 572 (161 SE2d 409).
We are persuaded that this rule continues under the Civil Practice Act. It is provided by § 81A-103 that a civil action is commenced by the filing of a complaint, and under § 81A-104 provision is made for the issuance and service of process the service to be made within five days from the time of receiving the summons and complaint, although failure to make it within the five days will not invalidate a later service.
Then what effect does a belated service have, particularly where the delay is great, as here? It is laches, authorizing the court to dismiss the action where the statute of limitation *427 had run before the service was so belatedly perfected. Although the late service is not "invalidated," it results in no pending suit between the parties until the date of the service and gives effect to the bar of the limitation. If the service had been perfected within the five days it would have related back, even though the statute ran between the filing of the petition and the perfection of service; and the suit also would be valid as a pending action upon which the plaintiff could proceed if, though late, service had been perfected before the running of the statute. No less diligence is required under the Civil Practice Act than was the case under the Practice Act of 1946.
2. Did the affidavit of Louis Dykes raise an issue of material fact? We think not. The mode for perfecting service on corporations is provided in Code Ann. § 81A-104 (d) (1). It is to be made on some officer of the corporation, or some agent thereof, and if service cannot be made in that fashion then it may be made by delivery of two copies of the summons and complaint to the Secretary of State, who may perfect it by mailing to the last known address of the corporation according to the records in his office. The Dykes affidavit in no manner contravenes the possibility of perfecting service under this section, nor does it show that service could not have been so made at any time, or that any effort to do so was made. The affidavit is, under this section, wholly immaterial.
Consequently, the grant of summary judgment was proper.
Judgment affirmed. Bell, C. J., and Evans, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331313/ | 215 Ga. 791 (1960)
113 S.E.2d 609
BUCHANAN
v.
THE STATE.
20802.
Supreme Court of Georgia.
Submitted February 8, 1960.
Decided March 16, 1960.
*792 Robert J. Noland, for plaintiff in error.
Luther C. Hames, Jr., Solicitor-General, contra.
QUILLIAN, Justice.
1. The first motion to dismiss and quash the indictment in this case, in which it was contended that the defendant had been denied equal protection of the laws, is without merit because the motion is insufficient to show any denial of equal protection of the laws under the Constitution of the United States or of the State of Georgia. It is simply alleged that the defendant was not permitted to appear before the grand jury that indicted him and to examine the witnesses who appeared before it. It is alleged neither that the defendant had any right under the laws and the Constitution of the United States or of the State to appear before the grand jury; nor that there are other citizens belonging to a class to which this defendant belongs who are accorded rights of which he has been denied; nor that he has been denied any right accorded to other citizens in circumstances the same as or similar to those in which he finds himself. "It is only in cases where laws are applied differently to different persons under the same or similar circumstances that the equal protection of the law is denied." Baugh v. City of LaGrange, 161 Ga. 80 (130 S. E. 69); City of Valdosta v. Harris, 156 Ga. 490 (119 S. E. 625); Georgia So. & Fla. Ry. Co. v. Adkins, 156 Ga. 826 (120 S. E. 610). It therefore follows, it was not error to deny this motion.
*793 2. In the second motion to dismiss and quash the indictment, it is insisted that the indictment should be dismissed because there was no legal evidence before the grand jury connecting the defendant with the crime charged, in that all the testimony presented before the grand jury was hearsay testimony and without probative value. Without deciding whether the evidence given before a grand jury may ever be inquired into, it was inquired into in this case without objection, and the record shows that, in addition to the testimony referred to, there was before the grand jury a statement made by the defendant amounting to a plenary confession, and a similar statement by another who was charged as an accomplice. These documents were identified by the scrivener who took them down and who was sworn as a witness before the grand jury. There was, therefore, evidence before the grand jury upon which the indictment could lawfully be based. "It has never been the practice in this State to go into an investigation to test the sufficiency of the evidence before the grand jury." Powers v. State, 172 Ga. 1 (3) (157 S. E. 195). See also Summers v. State, 63 Ga. App. 445 (11 S. E. 2d 409). Accordingly, it was not error to deny the motion upon this ground.
3. The defendant filed to the indictment demurrers which contained thirteen grounds, all of which contended that the indictment failed to set out an offense or that the indictment was vague and indefinite. There is no merit in any of the demurrers. The indictment was drawn in the terms of the statute. "An indictment is sufficient which charges the offense in the language of the Code, or so plainly that its nature may be easily understood by the jury." Jackson v. State, 76 Ga. 551 (13e). It follows, it was not error to overrule these grounds of demurrer.
4. From what has been said above, the judgment denying the two motions to dismiss and quash the indictment and the judgment overruling the demurrers to the indictment were not erroneous for any reason assigned.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331317/ | 101 Ga. App. 304 (1960)
113 S.E.2d 491
CONTINENTAL NATIONAL BANK
v.
SHORT.
38181.
Court of Appeals of Georgia.
Decided March 18, 1960.
Herbert B. Kimzey, Kimzey & Kimzey, for plaintiff in error.
Ellard & Frankum, Stephen D. Frankum, contra.
TOWNSEND, Judge.
1. Under Code § 67-108 providing for the registration of security instruments on personal property, where the property is purchased outside this State and afterwards brought within the limits of the State, it is necessary for the plaintiff to show that the mortgage or retention-title instrument was recorded in this State in the county where the property was located within six months after the property was brought into the State, unless the foreclosure proceeding is commenced within such 6 months period. In the latter event, however, the foreclosure is valid as against a bona fide purchaser of the property without notice of the mortgage, although it is not so recorded, since the commencement of the foreclosure proceedings within such six month period is itself sufficient. Hubbard v. Andrews & Co., 76 Ga. 177 (2); Ayares Small Loan Co. v. Maston, 78 Ga. App. 628 (2) (51 S. E. 2d 699).
2. "In a claim case, where property in the possession of the claimant is levied on under a mortgage fi. fa., the burden is on the plaintiff in fi. fa. to prove his case. Foremost Dairies Inc. v. Kelley, 51 Ga. App. 722 (181 S. E. 204), and cit. However, where the plaintiff offers evidence tending to show that the property levied on was in the possession of the mortgagor at the time of the execution of the mortgage foreclosed, a prima facie case in favor of the plaintiff in fi. fa. is made, and *305 the claimant is put upon exhibition of his title. Morris v. Winkles, 88 Ga. 717 (15 S. E. 747); Butt v. Maddox, 7 Ga. 495; Summerlin v. Spence, 8 Ga. App. 424 (69 S. E. 585); Jones v. Hightower, 117 Ga. 749 (45 S. E. 60)." Allen v. Dickey, 54 Ga. App. 451 (2) (188 S. E. 273).
The plaintiff in this foreclosure proceeding made out a prima facie case by proving that its assignor sold the automobile in question to Robert F. Saunders in Fort Worth, Texas, and that under the laws of Texas it retained title to the property until paid for by virtue of the mortgage under which the affidavit of foreclosure was sued out, the property being levied on as the property of Saunders.
3. It is further argued that the plaintiff did not prove its case because it failed to prove that the automobile seized under the levy and therein described as "one 1955 Chevrolet Station Wagon, Motor No. B55S00 8340" is the same automobile as that described in the mortgage as a "1955 Chev. Sta. Wag. Motor No. B55S00 8340," because in the Texas Certificate of Title the number "B 55S 008340" is listed as the serial number rather than the motor number, and because no one testified that the automobile seized did in fact have such motor number. Since the claimant, Ben Short, in both the claim affidavit and bond, admitted that the property which was levied on by the sheriff and claimed by him was as described in the mortgage and levy, and since no question was raised in the trial court as to the identity of the automobile, he cannot contest for the first time in this court that the property seized was not the property described and to which he made claim. The plaintiff made out a prima facie case, both as to its title and the description of the property sought to be repossessed, and the claimant introduced no evidence in his own behalf. It was therefore error for the judge hearing the claim case by consent without the intervention of the jury to enter up judgment in favor of the claimant.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331449/ | 101 Ga. App. 234 (1960)
113 S.E.2d 238
WHEELER
v.
JONES COUNTY et al.
38092.
Court of Appeals of Georgia.
Decided January 28, 1960.
Rehearing Denied February 16, 1960.
*235 Bloch, Hall, Groover & Hawkins, J. Pierce Anderson, for plaintiff in error.
Eugene Cook, Attorney-General, Paul Miller, E. J. Summerour, Assistant Attorneys-General, George L. Jackson, Donald E. Payton, contra.
TOWNSEND, Judge.
1. The deed from the plaintiff to the State Highway Department contained the following provision: "I do further grant the right to all necessary drainage in the construction and maintenance of said road constructed over the said right-of-way and on my lands adjacent thereto, and also release said county and State Highway Department from any claim of damage arising on account of construction of said roads or fills and embankments, ditches or culverts or bridges, on account of back water, changing of courses of streams, or in any other manner."
*236 The first issue raised is the construction of the latter part of this sentence, the plaintiff contending that the phrase "on account of back water, changing of courses of streams, or in any other manner" modifies the immediately preceding phrase "on account of construction of said roads or fills and embankments, ditches or culverts or bridges" and the defendant contending that the two phrases are co-equal. "If the construction-is doubtful, that which goes most strongly against the party executing the instrument, or undertaking the obligation, is generally to be preferred." Code § 20-704 (5). "But it is equally well settled that no construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation. In such an instance, the language used must be afforded its litteral meaning and plain ordinary words given their usual significance." Wolverine Ins. Co. v. Jack Jordan, Inc., 213 Ga. 299, 302 (99 S.E.2d 95). The language of the above quoted provision of the deed is not doubtful or ambiguous, and it plainly constitutes a release by the grantor to the defendant and the State Highway Department for damages arising (1) on account of construction of roads, fills, etc., (2) on account of water backing up or changing its course, and (3) "in any other manner." The latter provision, of course, must be construed ejusdem generis with the first two, but it is not here involved. The grantor released the defendant from any claim of damage arising on account of the construction of the road or fill in question. The trial court in sustaining the general demurrer based his decision on McCommons v. Greene County, 53 Ga. App. 171 (184 S.E. 897) in which a deed with identical provisions had been executed, and the ponding of water following the road construction resulted in consequential damages to the grantor's land. The court there held: "The provisions of the deed which were pleaded as a defense to the suit for damages against the defendant by the grantor of the deed, released the defendant from any liability to the plaintiff for the damages sued for." The provisions of the deed likewise released the county from the damages sued for here and prevent a recovery by the plaintiff, although the injury suffered would otherwise have been compensable as a damaging *237 of private property for a public purpose without just and adequate compensation being first paid. Felton Farm Co. v. Macon County, 49 Ga. App. 239 (175 S.E. 29). The phrase "on account of" by definition means "by reason of; because of." Webster's New International Dictionary. If the damage was occasioned because of the construction of the road and fill, as it was, since the dirt piled for the fill eroded in December, 1957, prior to the completion of the project in August, 1958, the allegation that it was not done on account of the construction of the road or fill but as a result of the failure after construction to prevent the washing of fill dirt is a conclusion not sustainable under the facts pleaded.
The trial court did not err in dismissing the petition on general demurrer.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331291/ | 188 S.E.2d 643 (1972)
14 N.C. App. 387
In the Matter of Robin Gay POTTS.
No. 7218DC359.
Court of Appeals of North Carolina.
May 24, 1972.
Certiorari Denied August 1, 1972.
*644 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Parks H. Icenhour, for the State.
Smith, Patterson, Follin & Curtis, by Norman B. Smith and Michael K. Curtis, and Lee, High, Taylor & Dansby, by A. Leon Stanback, Jr., Greensboro, for Robin Gay Potts, appellant.
Certiorari Denied by Supreme Court August 1, 1972.
MALLARD, Chief Judge.
The first question presented by appellant is whether the court erred in admitting into evidence a photostatic copy of a statement signed by two of the witnesses. Appellant contends that the admission thereof contravened both the best evidence *645 rule and the rule prohibiting a party from impeaching his own witness.
"The best evidence rule applies only where the contents or terms of a document are in question. * * *
Even where the contents of the document are in question, production is not required if the writing is only collaterally involved in the case. * * *" Stansbury, N.C. Evidence 2d, § 191.
In the case before us, Mr. Clyde Tesh testified that he was Principal of the Jackson Junior High School, that Mrs. Wall was one of his teachers, and that Robert Potts (Robert) and Duncan McCrae (Duncan) had told him that they wanted to give him a statement, which, after Tesh had put it in writing, each of them signed. A photostatic copy of the original statement was admitted in evidence. Robert and Duncan each testified with respect thereto that "(t)his photostatic copy of a statement was read to me by Mr. Tesh, and I signed it." Therefore, the contents or terms of the statement were not in question, and in addition were not a vital part of the State's evidence. Under these circumstances, the best evidence rule was not violated and the court did not by reason thereof commit prejudicial error in admitting the photostatic copy into evidence.
"It is well established in this jurisdiction that a party cannot introduce testimony to impeach or discredit the character of his witness . . . . Yet, if the witness testifies to facts against the State's contentions, the State is not precluded from showing the facts to be other than as testified to by the witness. * * *" State v. Horton, 275 N.C. 651, 170 S.E.2d 466 (1969), cert. denied, 398 U.S. 959, 90 S.Ct. 2175, 26 L.Ed.2d 545, reh. denied, 400 U.S. 857, 91 S.Ct. 25, 27 L.Ed.2d 97. See also, State v. Cohoon, 206 N.C. 388, 174 S.E. 91 (1934).
The testimony of Mrs. Wall, Mr. Clendenin, Duncan, Robert and Mr. Tesh is listed under "Petitioner's Evidence." The photostatic copy of the statement that Robert and Duncan testified they signed does not tend to impeach them; in fact, it tends, in part, to corroborate them. The statement is dated 8 December 1971 and reads as follows:
"Playing in hallpushing each otherDuncan ran, Robert chased, Duncan ran into Mrs. Wall.
Mrs. Wall talked to two boysgave a little tap on shoulder, told to go on to class.
Robin grabbed Robert's arm, said come on. Mrs. Wall removed Robin's arm from Robert, told her that she & Robert were talking, none of Robin's business.
Robin got mad, jumped on Mrs. Wall."
This photostatic statement does not corroborate all of the testimony of Duncan or Robert at the trial; however, it does corroborate each of them in part and does not specifically impeach, contradict or discredit any specific portion of their testimony, with the possible exception of Duncan's testimony, "I did not see what happened after Mrs. Wall told Robin to go on." But even this is not a specific contradiction of his statement that he did not see Robin "jump on" Mrs. Wall. Mrs. Wall's testimony that she did not shove the child into the water cooler is contradicted by the testimony of Robert that she did, yet this does not violate the rule which prohibits impeachment of one's own witness but permits a party to show the facts to be other than as testified to by his witness. State v. Horton, supra. Also in cases heard by a judge without a jury, there is a presumption, nothing else appearing, that the judge disregarded incompetent evidence. We hold therefore that the judge did not commit prejudicial error in admitting the photostatic copy of the statement itself in evidence.
The next question presented by appellant is whether the exclusion of the public is mandatory in juvenile proceedings *646 in the district court. The pertinent part of G.S. § 7A-285 reads as follows: "The general public may be excluded from any juvenile hearing in the discretion of the judge." (Emphasis added.) This makes it a discretionary matter with the trial judge whether the general public (which includes newspaper reporters) is excluded from the hearing. On the record before us, no abuse of discretion or prejudicial error is shown by the fact that a newspaper reporter was present during the hearing.
Appellant raises the question of whether the court, after having found the child to be delinquent, properly committed her to the custody, control and supervision of the officials of the State Board of Youth Development. The appellant argues that the court failed to find that such disposition was in the best interest of the child and that its order is therefore fatally defective. This contention is without merit because it overlooks the applicable statutes and case law and ignores the finding by the court that the child "is a delinquent child within the meaning of the law and that she is in need of the discipline and supervision of the state." See In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), affirmed, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647; In re Whichard, 8 N.C.App. 154, 174 S.E.2d 281 (1970), appeal dismissed, 276 N.C. 727; and G.S. § 7A-285 and G.S. § 7A-286.
The record reveals that at the conclusion of the adjudicatory part of the hearing, the court proceeded to the disposition of the child as authorized by the provisions of G.S. § 7A-285. In announcing the disposition, the court said:
"If the schools are to operate, it is necessary that those in charge be respected. The courts cannot tolerate attacks on public school teachers by students."
The defendant contends that this statement and the order entered indicate that the interest of the child was not considered in the final decision. No law-abiding American citizen can logically argue otherwise than that public school teachers must be protected from attack by unruly, undisciplined and unrestrained students. The judge found, upon competent evidence, that this incident was an unprovoked attack by the child upon the teacher and that the child was a delinquent. The law imposed upon him the duty to make proper disposition of the child. In making such disposition, the statute, G.S. § 7A-286, provides that "(t)he judge shall select the disposition which provides for the protection, treatment, rehabilitation or correction of the child after considering the factual evidence, the needs of the child, and the available resources, as may be appropriate in each case." (Emphasis added.) The appellant's argument that the interest of the child was not considered in the final disposition is not supported by the record, the factual evidence, or the demonstrated needs of the child.
The last question presented by appellant is whether the court properly proceeded with the juvenile hearing in the absence of the solicitor.
G.S. § 7A-61 reads in part: ". . . (T)he solicitor shall . . . represent the State in juvenile cases in which the juvenile is represented by an attorney." In this case the child was represented by an attorney. It also appears of record that there was present at the hearing ". . . Mr. William Caffrey, private counsel representing Mrs. Wall as legal advisor, but (who) did not participate in the case in the capacity of the prosecuting attorney. . . ." The appellant now argues that because the solicitor did not represent "the State" the judge was cast in the role of prosecutor. We do not think that this record supports this conclusion. The record reveals that someone other than the judge examined the petitioner's, as well as the child's, witnesses and that most of the witnesses were asked some but not many clarifying questions by the judge in that portion of the record entitled, "Cross Examination by the Court."
*647 In State v. Rush, 13 N.C.App. 539, 186 S.E.2d 595 (1972), it is said:
"* * * The purpose of Article 23 as set out in G.S. 7A-277 is `to provide procedures and resources for children under the age of sixteen years which are different in purpose and philosophy from the procedures applicable to criminal cases involving adults.' See In re Whichard, 8 N.C.App. 154, 174 S.E.2d 281, appeal dismissed 276 N.C. 727 (1970). G.S. § 7A-285 provides that `The juvenile hearing shall be a simple judicial process designed to adjudicate the existence or nonexistence of any of the conditions defined by G.S. 7A-278(1) through (5) which have been alleged to exist, . . .' We believe the informal procedure contemplated by the statute allows the questioning of witnesses by the trial judge to elicit relevant testimony and to aid in arriving at the truth. * * *"
As in Rush, we think the judge in this case (who was the same judge that tried the Rush case) was fair and judicious in the asking of questions and that no judicial bias is shown on this record. It further appears to us that the judge performed the duty required of him by G.S. § 7A-285 that ". . . the judge shall find the facts and shall protect the rights of the child and his parents in order to assure due process of law. . . ."
We hold that all of the parties were properly before the court, after proper notice and upon a petition invoking the jurisdiction of the court, that all parties offered evidence and participated in the hearing, the child was represented by counsel, that the basic requirements of due process were met, and that no prejudicial error appears on this record.
The judgment of the district court is affirmed.
Affirmed.
CAMPBELL and BROCK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/697172/ | 56 F.3d 80NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
SRR, A SUBSIDIARY OF the STRIDE RITE CORPORATION, Plaintiff-Appellant,v.Alfonso ROBLES, District Director of Customs, San Juan,Puerto Rico; Commissioner of the United StatesCustoms Service; and the United States,Defendants-Appellees.
No. 94-1447.
United States Court of Appeals, Federal Circuit.
May 4, 1995.
Before MICHEL, PLAGER and RADER, Circuit Judges.
JUDGMENT
PER CURIAM.
1
AFFIRMED. See Fed.Cir.R. 36. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1331292/ | 258 S.C. 296 (1972)
188 S.E.2d 480
CLARENDON HOLDING COMPANY, Inc. by R.R. DuRant, Jr., and Thomasine G. Mason, its Trustees, Appellant,
v.
Carroll WITHERSPOON and Howard Elkins, his duly appointed Committee, Respondents.
19407
Supreme Court of South Carolina.
May 2, 1972.
*297 Messrs. Baker & Etheridge, of Darlington, and Arrowsmith & Jackson, of Florence, for Defendant-Respondent.
*298 Messrs. Morris & Land, and Rogers & Riggs, of Manning, and Bryant & Fanning, of Orangeburg, for Plaintiff-Appellant.
*299 May 2, 1972.
Per Curiam:
This action was brought by the plaintiff to quiet title to a 28-acre tract of land located at or near the intersection of Highway I-95 and U.S. Highway 301 in Clarendon County. The complaint alleges that Clarendon Holding Company is the owner of the subject property, and that R.R. DuRant, Jr., and Thomasine G. Mason are its duly appointed trustees, and as such hold title to the property of the corporation. It alleges that the defendant Carroll Witherspoon has, or may claim an interest in the property and that such constitutes a cloud on the plaintiff's title.
The defendant Carroll Witherspoon, a person non compos mentis, through his guardian ad litem George H. Witherspoon, answered the complaint, alleging that plaintiff had no title to the land, and alleging that plaintiff's purported title was procurred wrongfully under an invalid court order. Further answering, and by way of counterclaim, defendant Carroll Witherspoon asked that he be declared sole owner of the property and placed in possession of the same.
The defendant Howard Elkins, as committee for the defendant Carroll Witherspoon, answered the complaint, alleging that he performed services as committee in good faith and submitted the rights of his ward to the protection of the court.
After depositions were taken and requests for admissions submitted and answered by several witnesses, counsel for the defendant Carroll Witherspoon moved for summary judgment under Rule 44 of the circuit court. There were several grounds to the motion, which asked the court to rule "... Carroll Witherspoon is the owner in fee simple of the real property involved in this action, free and clear of any claim of Plaintiffs or those holding under them." We need consider only ground number 3:
*300 "3. As a matter of law, the alleged Committee for Carroll Witherspoon. Howard Elkins, did not perform his legal obligations to his ward, Carroll Witherspoon, nor take any action to protect his interests, in the proceedings resulting in the sale of Carroll Witherspoon's land to Plaintiffs, all of which inaction resulted from Howard Elkins' connivance with Plaintiffs to obtain title to Carroll Witherspoon's lands for Plaintiffs, and such proceedings are therefore null and void and not binding on Carroll Witherspoon."
The trial judge granted the motion on several grounds. We affirm on the limited ground hereinafter indicated. The facts which served as a basis for granting summary judgment on ground 3 as indicated above are not substantially in dispute.
In the early 1960's it became common knowledge that Interstate Highway 95 ("I-95") would be constructed through Clarendon County. The plans called for I-95 to intersect U.S. Highway 301 at a point approximately four and one-half miles southwest of Manning.
Clarendon Holding Company, Inc., the plaintiff, was organized about this time. Its founders contemplated the purchase of property along the path of the new highway as an investment.
Incident to the procurement of rights-of-way by the highway department for the purpose of constructing Highway I-95, several members of the bar at Manning were called upon to examine titles to real estate. In the course of abstracting titles, Mrs. Thomasine G. Mason learned that Carroll Witherspoon owned the 28-acre tract which is the subject of this action. She contacted his uncle, John Witherspoon, to get information relative to the family. Carroll Witherspoon had inherited the land while a patient in the State Hospital. John Witherspoon talked with her concerning Carroll's getting some benefit from the property. He said that the land was nonproductive and indicated a desire to do something for *301 Carroll, who had been confined in the State Hospital since 1930. He was conditionally released in 1970.
In the early fall of 1964 Mr. John G. Dinkins (now deceased) of the Manning bar, who was attorney for and stockholder of the Clarendon Holding Company, discussed with Mason the possibility of buying Carroll Witherspoon's land. Following the discussions, John Witherspoon petitioned the probate court for the appointment of Howard Elkins as committee for Carroll Witherspoon. Elkins was executive vice-president of the Bank of Clarendon. Two of the stockholders of the plaintiff were officers in the same bank, and Dinkins was attorney for the bank as well as for the plaintiff. The probate court appointed Elkins committee on October 28, 1964.
On November 4, six days after his appointment as committee, Elkins signed an ex parte petition asking the Court of Common Pleas to approve the sale of Witherspoon's 28 acres to Clarendon Holding Company. The incompetent Carroll Witherspoon was not made a party to that action for the sale of his land, and the petition was not served upon him nor upon the superintendent of the hospital where he was confined.
The petition to sell alleged that Carroll Witherspoon was not receiving any benefit from the land and that the property was not producing income; that the committee had been offered $12,500 (less attorney's fees, surveyor charges, unpaid taxes and necessary costs and expenses) by the Clarendon Holding Company for a deed to the property. It further alleged that such was a full and fair price. The petitioner prayed for an order of the court authorizing consummation of the sale. To the petition was attached an affidavit of S.J. Brogdon and N.R. Cousar, realtors, who expressed the opinion that $12,500 was a full, fair and just price. Each stated that it would be to the best interest of Carroll Witherspoon for the sale to be made and the money reinvested.
*302 On November 10, 1964 the Court of Common Pleas for Clarendon County issued its order based on the petition, authorizing and directing Elkins, as committee to convey Carroll Witherspoon's land to Clarendon Holding Company. A deed was so executed. Since that time the Clarendon Holding Company has deeded the property to R.R. DuRant, Jr., and Thomasine G. Mason as trustees for the stockholders.
At the instigation of counsel for the defendant Carroll Witherspoon, depositions of R.R. DuRant, Jr., and Joe P. Moore, stockholders of the plaintiff, and of Howard Elkins were taken. Later the deposition of Mason was taken. In addition, requests for admissions were submitted to Elkins, DuRant and Mason. It was upon the basis of these depositions, admissions, court records and the pleadings, that the judge granted the motion of defendant Carroll Witherspoon for summary judgment and held that he was owner of the land.
On this appeal the plaintiff challenges the correctness of the judge's ruling on several grounds. We think that the judge properly held that the committee did not afford Carroll Witherspoon true representation in the proceeding wherein the sale of his property was authorized. The judge's conclusion on this point is clearly established by the record to the exclusion of all other reasonable inferences. The facts are established by Elkins' own deposition and admissions. He is to be commended for his frankness and honesty in testifying. The proof is fortified in essential details by the other depositions and admissions.
Elkins never met John Witherspoon or Carroll Witherspoon, nor did he know anything about them. Elkins did not know that John Witherspoon had signed the petition for his (Elkins') appointment as committee. He made no attempt to see Carroll Witherspoon. He had never, prior to that appointment, served as committee for any other person, nor has he since so served. Elkins testified that he had no knowledge *303 of his legal obligations as committee. He did not know why he was chosen to act.
Elkins had no knowledge concerning the filing of a bond nor concerning a surety thereon. He never accounted to the probate court for the funds of Carroll Witherspoon until May, 1970. He made no attempt to locate any other property belonging to Carroll Witherspoon nor to inventory his estate as required by law. He made no court appearances on Witherspoon's behalf. He made no investigation to determine the value of the 28-acre tract nor the propriety of its sale. He did not know where the land was located nor how much land was involved. Elkins discussed the sale with no one and did not even know who was negotiating regarding it.
According to Elkins, he made no judgment as to whether or not it would be in Carroll Witherspoon's best interest to sell the property. He testified that he "wasn't aware that [he] petitioned to have it sold." He did not even recall signing a deed.
Finally, Elkins' testimony reveals that the money which he received from the sale of the land has never drawn interest. Upon receiving the money Elkins deposited it in a checking account in the Bank of Clarendon where he worked. From time to time he made payments to the South Carolina Department of Mental Health. Other than doing this it appears that the only action Elkins ever took in carrying out his appointment as committee was to perfunctorily sign documents which were presented to him documents which he neither knew nor attempted to learn the contents of.
Rule 44 of the circuit court contemplates the granting of summary judgment when there is no genuine issue for trial. We agree with the judge's conclusion that Carroll Witherspoon had no true representation in the action brought to secure approval of the sale. On that ground, the order of the lower court is affirmed.
It goes without saying that a committee is under a duty to protect the interests of his ward. The relationship is fiduciary. In Simpson v. Doggett, 159 S. *304 C. 294, 156 S.E. 771 (1930), a consent judgment was vacated on the ground that the guardian ad litem was not diligent and did not properly look after the interest of his minor ward in that said minor was not adequately compensated for her injuries. There we said, quoting 31 C.J. 1141:
"The position of a guardian ad litem or next friend is one of trust and confidence toward the infant as well as the court; hence, it is his duty fully to protect the infant's interests in all matters relating to the litigation, as the infant might act for himself if he were of capacity to do so. His duty requires him to acquaint himself with all the rights of the infant in order to protect them, and to submit to the Court for its consideration and decision every question involving the rights of the infant affected by the suit. He should be as careful not to do anything, or allow anything to be done, to the prejudice of his ward's interests, as the court from which he receives his appointment. If in consequence of the culpable omission or neglect of the guardian ad litem the interests of the infant are sacrificed, the guardian may be punished for his neglect as well as made to respond to the infant for the damage sustained. The misconduct of a guardian ad litem or next friend in protecting the infant's interest does not affect the jurisdiction of the court in rendering the judgment in the suit or action; the judgment is not rendered thereby void; it is merely a matter of error, for which a judgment may be set aside."
These principles, set forth in Simpson, apply to the committee incompetent relationship as well as to the guardian-minor relationship. In the land-sale action Elkins, as committee, undertook to act in lieu of a guardian ad litem. Though he was not technically a guardian ad litem, there was imposed upon him the same duty.
"It is the duty of courts to protect the interests and rights of minors and persons non compos mentis whose property, under the law, has been intrusted to their care. To divest them of any right, the proceeding for that purpose must be *305 entirely legal without any question concerning it." Ex Parte Hineline, 166 S.C. 352, 164 S.E. 887 (1932).
A decree procured under the circumstances of this case cannot stand.
Inasmuch as we affirm the lower court's order for the reason discussed above, we need not consider the trial judge's ruling that Carroll Witherspoon was not a party to the proceeding brought for disposal of his property. However, we sustain those exceptions which allege error on the part of the judge in disposing of the fraud issues by way of a summary judgment ruling. Such was error because those issues should not have been decided without a trial of the case on its merits.
Based solely on the ground that the incompetent was not properly represented in the former action, we affirm the result reached by the trial judge.
Defendant Carroll Witherspoon has asked that Elkins be removed as committee and for an accounting. The lower court ordered that certain repayments be made to plaintiff. These matters (and perhaps others) must be pursued. The case remains open for further action and is remanded.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331293/ | 125 Ga. App. 433 (1972)
188 S.E.2d 149
HAYES
v.
LAYTON et al.
46733.
Court of Appeals of Georgia.
Argued January 7, 1972.
Decided January 18, 1972.
Rehearing Denied February 8, 1972.
*435 William R. Parker, for appellant.
Greene, Buckley, DeRieux & Jones, Raymond H. Vizethann, Jr., for appellees.
HALL, Presiding Judge.
Plaintiff in a quantum meruit action appeals from the grant of summary judgment to the defendants.
Plaintiff and the corporate defendant, through its authorized agent the individual defendant, executed a written contract under which plaintiff was to perform specified masonry work on a building which the defendant (general contractor) was constructing. Several months after he began the work, plaintiff was injured on the job and has apparently done nothing further in the way of performance. In this action for labor and materials furnished before his injury, plaintiff alleged that the contract had been abandoned. He contends upon appeal that there is a material issue of fact on the question of abandonment.
Defendant entered a plea of estoppel by judgment on this issue and offered in support the following evidence in proper documentary form: After his injury, plaintiff filed *434 a claim with the State Board of Workmen's Compensation in which he asserted that he was an employee of the defendant rather than an independent subcontractor. At the hearing, his testimony, as well as the thrust of his attorney's questions to other witnesses, was an attempt to show that the actual relationship of the parties had not been controlled by the terms of the contract that there had been a mutual rescission or abandonment of the contract in favor of another relationship. Although recognizing certain variations from contract provisions concerning, e.g., payment procedures (variations which are not unusual in the trade) the board found as a matter of fact that at the time of the injury plaintiff was an independent subcontractor under the written contract between the parties. The award denying compensation was appealed and affirmed by both the superior court and the Court of Appeals which held that the evidence amply sustained the findings. See Hayes v. Highlands Ins. Co., 121 Ga. App. 758 (175 SE2d 44).
We believe all the necessary elements of estoppel by judgment are present here and supported by evidence. See Smith v. Wood, 115 Ga. App. 265 (154 SE2d 646). The issue of abandonment has been adjudicated between these parties and may not be raised again to sponsor another lengthy round of litigation.
With the written contract in force between the parties, their respective rights and liabilities are to be determined under its terms. Plaintiff can have no recovery in quantum meruit. Ford v. Harden, 94 Ga. App. 902 (96 SE2d 617); Thomas McDonald & Co. v. Elliott, 92 Ga. App. 409 (88 SE2d 440).
The court did not err in granting summary judgment to the defendants.
Judgment affirmed. Pannell and Quillian, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331319/ | 236 S.C. 226 (1960)
113 S.E.2d 737
William Ralph FOWLER, Respondent,
v.
ABBOTT MOTOR COMPANY and Hardware Mutual Casualty Company, Appellants.
17637
Supreme Court of South Carolina.
April 5, 1960.
*227 Messrs. Ninestein & Petit, of Walhalla, for Appellants.
John M. Schofield, Esq., of Rock Hill, for Respondent.
*228 April 5, 1960.
MOSS, Justice.
This is an appeal by the employer and carrier from an order of the Circuit Court affirming an award of the Industrial Commission in favor of the claimant, William Ralph Fowler, the respondent herein.
William Ralph Fowler was, on January 15, 1958, and for some years prior thereto, employed by Abbott Motor Company as a mechanic and service manager. It was stipulated that Fowler was on call twenty-four hours each day, and that the employer furnished him an automobile to use in answering service calls whether during regular or after regular hours. The employer paid the toll charges for a telephone located in the residence of the employee. It was agreed that the employee was injured on January 15, 1958, at about 8:00 o'clock P.M. The automobile owned by Abbott Motor Company and driven by the employee was in collision with a tree just off of Coffee Road between Walhalla and Westminster, South Carolina. The respondent is now mentally and physically disabled and is a patient in a hospital in Columbia, South Carolina.
The respondent, through his duly appointed guardian, filed with the South Carolina Industrial Commission a claim for benefits under the Workmen's Compensation Law, Section 72-1 et seq., Code of 1952, asserting that his injury was by accident arising out of and in the course of his employment with Abbott Motor Company. The employer admitted that it was subject to and bound by the terms of the Act, but *229 denied that the employee sustained an injury by accident arising out of and in the course of his employment. The hearing commissioner found that the respondent did receive an injury by accident arising out of and in the course of his employment, and awarded compensation therefor. The appellants made timely application for a review of this award before the full commission. The order of the single commissioner was affirmed by a majority of the full commission. Thereafter, an appeal was duly taken by the employer, and its insurance carrier, to the Court of Common Pleas for Oconee County, South Carolina. This appeal was heard by the Honorable Steve C. Griffith, Presiding Judge, who, on September 25, 1959, issued his order affirming the decision and award of the commission. Timely appeal to this Court followed. The single exception of the appellants raises the question of whether the Court erred in finding that William Ralph Fowler sustained an injury by accident arising out of and in the course of his employment, it being asserted that there was no evidence to support said finding.
We have held in numerous cases that the burden is upon the claimant to prove such facts as will render the injury compensable within the provisions of the Workmen's Compensation Act, and such award must not be based on surmise, conjecture or speculation. Brady v. Sacony of St. Matthews, 232 S.C. 84, 101 S.E. (2d) 50; Leonard v. Georgetown County, 230 S.C. 388, 95 S.E. (2d) 777; and Walker v. City Motor Car Company, 232 S.C. 392, 102 S.E. (2d) 373.
We have likewise held that the Industrial Commission is the fact-finding body, and this Court, and the Circuit Court, both being appellate Courts in workmen's compensation cases, can only review the facts to determine whether or not there is any competent evidence to support the findings made by the commission. Brady v. Sacony of St. Matthews, supra. It follows that this Court, and also the Circuit Court, may reverse an award if there is an absence of any evidence to support it.
*230 An injury arises in the course of employment within the meaning of the Workmen's Compensation Act when it occurs within the period of the employment at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties, or engaged in doing something incidental thereto. An accident arises out of the employment when it arises because of it, as when the employment is a contributing proximate cause. These conditions must concur before the Act can apply. Schrader v. Monarch Mills, 215 S.C. 357, 55 S.E. (2d) 285, and Portee v. S.C. State Hospital, 234 S.C. 50, 106 S.E. (2d) 670.
We have no difficulty in concluding that the respondent suffered an injury by accident. The question of whether the accident arose out of and in the course of employment is the real one for determination.
Ruth Fowler, wife of the claimant, testified that she returned home from work on January 15, 1958, the day of the accident, and that the claimant came home immediately thereafter; that they were in the house together for five or ten minutes and that she left the house for a few minutes. She further testified that right after she returned, the claimant left the house, saying, "I'll be back in a minute." She also testified that he left in the car furnished him by Abbott Motor Company. She also testified that in her opinion ninety per cent of the calls received by her husband were in connection with his work as a mechanic for his employer. She further says that she does not know what prompted the claimant to leave home on the night of his injury. She also says that the automobile furnished to the claimant by his employer was used "as though the car was his, he used it for his personal affairs as well."
Constance Fowler, the eleven-year-old daughter of the claimant, testified that after her father arrived at home that she answered a telephone call and a man asked for her father, and that her father came to the telephone and she heard her father say to the caller, "I'll see about it", and that when he left the house, he said, "I'll be back in a minute."
*231 J.O. Brock, testifying in behalf of the claimant, said that he operated a store on U.S. Highway 276, and that on the night of January 15, 1958, the claimant visited his place for "three or four minutes", and that he asked the witness if he had seen his uncle, Chris Fowler, and "he said he was looking for him and he mentioned something about a car motor someway, had to see about a car motor somewhere, but I don't remember just what he said." This witness also testified that Chris Fowler was a mechanic for "Mac's Chevrolet" in the town of Westminster.
Frank Abbott, the owner of Abbott Motor Company, testified that the claimant was his service manager and that phone calls received after 6:00 o'clock in the afternoon were referred to the claimant if there was no one at the place of business. He testified with reference to the trip made by the claimant, "It's possible that he was on company business or it's possible that he was on personal business"; that he had no knowledge of any business the claimant was transacting for Abbott Motor Company at the time of the accident.
Rufus Lee testified that he was in the grocery store of J. O. Brock when the claimant came in about 8:00 o'clock P.M.; that he talked to him a minute or two and then left. Lee testified that when he left that the claimant was still waiting in his car and that after a car passed along the road, Fowler pulled out and went up to Long Creek Road which leads to Coffee Road. He said that if he was going from Brock's Grocery store to Abbott Motor Company's place of business, it would be closer to go by Coffee Road. He also testified that there were a number of other places, other than Abbott Motor Company's place of business, to which Coffee Road led.
It is true that at the time the claimant was injured, the direct evidence shows that he was driving an automobile owned by the employer and furnished to the employee as part of his contract of employment. Counsel for the respondent asserts that the other evidence, which is circumstantial, is sufficient to justify the inference and the *232 presumption that claimant's injury arose out of and in the course of his employment. It is a well-settled rule that circumstantial evidence may be relied upon to support a finding of fact or an award in workmen's compensation cases, and such finding or award may be based on inferences drawn from such circumstantial evidence. In such cases, the circumstantial evidence need not reach such a degree of certainty as to exclude every reasonable or possible conclusion other than that reached. Owens v. Ocean Forest Club, Inc., 196 S.C. 97, 12 S.E. (2d) 839; Holly v. Spartan Grain & Mill Company, 210 S.C. 183, 42 S.E. (2d) 59.
In our opinion, the evidence here fails to disclose or to warrant a reasonable inference that there was any causal connection between the employment and the injury to the claimant. To hold that claimant's injury, which occurred by accident, arose out of and in the course of his employment, or that there was a causal connection between the injury and the employment would be to engage in surmise, conjecture and speculation. This is readily apparent because the testimony neither shows who called the claimant at his home nor for what purpose. There is no evidence that when the claimant left his home with the statement "I'll be back in a minute", that he was leaving to perform any of the duties of his employment. It was the duty of claimant to show that his injury by accident was connected with or incident to the performance of such duties.
Counsel for the respondent asserts that there is a presumption "that one charged with the performance of a duty and injured while performing such duty, or found injured at a place where his duty may have required him to be, is injured, in the course of, and as a consequence of, the employment." It was so held in the case of Owens v. Ocean Forest Club, Inc., supra. However, we cannot apply this presumption, under the facts of this case, because the respondent has failed to show that his injury occurred at a place where duty in behalf of his employer may have required him to be. Falconer v. Beard-Laney, Inc., 215 S.C. 321, 54 S.E. (2d) 904.
*233 It is argued by the respondent that since the employer furnished to him an automobile for the purpose of going to and from his work, a presumption arises that if injured while using said automobile, such arose out of and in the course of his employment. In the case of Gallman v. Springs Mills, 201 S.C. 257, 22 S.E. (2d) 715, 717, this Court said:
"As a general rule, an employee going to or coming from the place where his work is to be performed is not engaged in performing any service growing out of and incidental to his employment, and therefore an injury suffered by accident at such time does not arise out of and in the course of his employment. There are two universally recognized exceptions to this rule, and a third which is recognized by the courts of some states. These exceptions are: (1) Where in going to and returning from work, the means of transportation is provided by the employer, or the time thus consumed is paid for or included in the wages. (2) Where the employee, on his way to or from his work, is still charged with some duty or task in connection with his employment * * *"
In the case of Eargle v. South Carolina Electric & Gas Co., 205 S.C. 423, 32 S.E. (2d) 240, 243, this Court said:
"* * * That an injury incurred by a workman in the course of his travel to his place of work and not on the premises of his employer, but in close proximity thereto, is not compensable unless the place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment of its use by the servant in going to and coming from his work. This statement of the law is supported by the cases of De Constantin v. Public Service Commission, 75 W. Va. 32, 83 S.E. 88, L.R.A. 1916A, 329, and Canoy v. State Compensation Commission, 113 W. Va. 914, 170 S.E. 184."
In Larson on Workmen's Compensation Law, Vol. I, Page 233, section 17.10, it is said:
"If the trip to and from work is made in a truck, bus, car or other vehicle under the control of the employer, an *234 injury during that trip is incurred in the course of employment. The simple justification for this holding is that the employer has himself expanded the range of the employment and the attendant risks. He has, in a sense, sent the employee home on a small ambulatory portion of the premises, just as the sailor on a British ship is conceived to be on a little floating fragment of Britain herself."
It has been held that an accidental injury may be compensable if received at some distance from employer's place of business, where, at the time and place of injury, employee was doing some work in connection with, or incidental to his employment. Benjamin H. Sanborn Co. v. Industrial Commission, 405 Ill. 50, 89 N. E. (2d) 804. Again, we cannot apply the presumption asserted by the respondent for the reason that he has failed to show that he was using the automobile of his employer at a place and a time where his duty as an employee required him to be. There is no evidence in this record that the respondent, at the time of his injury, was performing any duty for his employer. Counsel for the respondent also asserts that under the testimony it was proper to find that the respondent possibly was engaged in performing a service on behalf of his employer. This Court has held that a "possibility" is not enough to show that respondent's injury arose out of and in the course of his employment. Richardson v. Wellman Combing Co., 233 S.C. 454, 105 S.E. (2d) 602.
It was stipulated that the claimant "was on call twenty-four hours each day". This stipulation is limited to the fact that the claimant was subject to call and it does not have the effect of admitting that at the time of his injury he was answering or servicing a call in behalf of his employer. There is no evidence in this record that the claimant was answering any call in behalf of the employer, nor is there any evidence at the time the claimant was injured that he was charged with the performance of any duty in behalf of the employer, nor was he injured at a place where any duty to the employer required him to be. The *235 burden of supplying evidence from which the inference can be legitimately drawn that the claimant's injury arose out of and in the course of his employment, rests upon him.
In the case of Radcliffe v. Southern Aviation School, 209 S.C. 411, 40 S.E. (2d) 626, 629, this Court said:
"The claimant, at the outset, is faced with the burden to show by competent testimony, not only the fact of the injury, but that it occurred in connection with his employment. And he must furnish substantial evidence from which the reasonable inference can legally be drawn that the injury arose out of and in the course of his employment. The award by the Commission must be based upon something more than speculation, surmise or conjecture, it must be based on evidence."
In the case of Broughton v. South Carolina Game and Fish Dept., 219 S.C. 50, 64 S.E. (2d) 152, 154, this Court said:
"A claimant who asserts the right to compensation carries the burden of establishing the necessary facts to entitle him to such compensation. The evidence will ordinarily be regarded as sufficient where the circumstances shown tend to establish the ultimate facts in issue and provide a basis from which they reasonably may be inferred. An award cannot, however, be based upon mere possibilities, probabilities, surmises or conjectures. Hines v. Pacific Mills, 214 S.C. 125, 51 S.E. (2d) 383; Sligh v. Newberry Elect. Co-op., 216 S.C. 401, 58 S.E. (2d) 675; Buff v. Columbia Baking Co., 215 S.C. 41, 53 S.E. (2d) 879; Rudd v. Fairforest Finishing Co., 189 S.C. 188, 200 S.E. 727."
We conclude that there is no evidence reasonably warranting the inference that the claimant's injury arose out of and in the course of his employment.
The judgment appealed from is reversed and this case remanded for entry of judgment in favor of the appellants.
STUKES, C.J., and TAYLOR, OXNER and LEGGE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331329/ | 236 S.C. 64 (1960)
113 S.E.2d 72
A. P. MAHAFFEY and Clyde Mahaffey, as Executors of the Will of Emma Mahaffey, Respondents,
v.
Pearl MAHAFFEY, Marie M. Rogers, James Mahaffey, Aaron Mahaffey, Frances Mahaffey and Joseph Mahaffey, Appellants.
17621
Supreme Court of South Carolina.
February 25, 1960.
*65 Messrs. Moore & Stoddard, of Spartanburg, for Appellants.
Messrs. Bobo Burnett and Carlisle Bean, of Spartanburg, for Respondents.
February 25, 1960.
LEGGE, Justice.
The will of Emma Mahaffey, dated December 26, 1947, was admitted to probate in common form by the Probate *66 Court for Spartanburg County on February 5, 1948. Thereafter in appropriate proceedings in that court it was admitted to probate in "due form of law" on August 24, 1949. Upon appeal to the Court of Common Pleas the matter was tried de novo before the Honorable Steve C. Griffith, Presiding Judge, and a jury on October 1, 1958.
Validity of the will was attacked upon two grounds, viz.: (1) that the testatrix lacked mental capacity to make it; and (2) that its execution had been procured by undue influence on the part of the two principal beneficiaries. In the course of his charge Judge Griffith, after having fully instructed the jury as to the law applicable to these issues, submitted to them in writing three questions that he had prepared, as follows:
1. Is the will good?
2. Was there lack of mental capacity?
3. Was there undue influence?
To the first of these questions the jury answered "Yes".
The transcript of record reveals no exception designated as such. It merely states, as the "Question Involved": "Did his Honor err in submitting to the jury the question `Is the will good?' before the question `Was there lack of mental capacity?' and `Was there undue influence?'"
Considered as an exception, this "Question Involved" does not meet the requirement of Rule 4, Section 6, because it fails to specify any ground upon which appellants based their contention that the trial judge committed error in submitting the three questions in the order stated. Cf. Scott v. Independent Life & Accident Ins. Co., 227 S.C. 535, 88 S.E. (2d) 623; Furtick v. Duncan, 229 S.C. 126, 92 S.E. (2d) 132. We note also that at the close of his charge the trial judge excused the jury and gave counsel the opportunity to express any objections to the charge and to request additional instructions, Code, 1952, Supplement, Section 10-1210. Appellants, having at that time voiced no objection to the charge as given, and having requested *67 no amplification of it, have no right now to question it. Tate v. Le Master, 231 S.C. 429, 99 S.E. (2d) 39; G. A.C. Finance Corp. v. Citizens & Southern National Bank of South Carolina, 234 S.C. 205, 107 S.E. (2d) 315. For either of the foregoing reasons this appeal might be summarily dismissed; but we prefer to consider directly the question that appellants seek to present.
Appellants argue that the questions as to mental capacity and undue influence should have been submitted to the jury first, and the question "Is the will good?" last; and that reversal of that order in effect required the jury to decide the issues of mental capacity and undue influence simultaneously before deciding them separately. We see no merit in this contention, in the light of the trial judge's charge concerning these issues, which we quote:
"Now, gentlemen, I have prepared three questions for you to answer. The order of the questions has no significance at all. One had to be first and one had to be last. The first: Is the will good. By that I mean is the will valid. You will answer that question `yes' or `no'. If you find that the contestants have failed to prove that the testatrix at the time she signed the will was lacking in mental capacity, or was acting under undue influence, if they fail to prove one or the other, or both, then you would say `yes' to that question. And in the event you answer that question `yes' you do not have to go any further. That ends it. If you find that, the contestants have failed and the will is a good and valid instrument.
"If you decide, however, that the will is no good, then I want you to answer the two following questions. I want to know whether you base your findings of an invalid will upon a lack of mental capacity, or upon undue influence, or both.
"Now, if you find it is no good because the testatrix didn't have mental capacity to execute it, then the number 2 question would be answered `yes'. If you find that she did have *68 mental capacity, then your answer to that question would be `no'.
"The third question relates to undue influence. If you find that the will was executed while the testatrix was subjected to undue influence, your answer to that question would be `yes'. If you find that she was not subjected to undue influence, your answer would be `no'.
"You will fill in the answers as your verdict may require, Mr. Foreman, and then you sign it on the bottom line."
The three questions framed by the trial judge are the usual one in such cases. To resolve the issue of validity in the affirmative it was necessary that the jury find that neither ground of invalidity had been established; to resolve it in the negative required a finding that one or both of said grounds had been established by the preponderance of the evidence. Once that course had been plainly charted for them, as we think it was by the portion of the charge before quoted, the numerical order in which the submitted questions were set forth became immaterial, in our opinion.
Appellants point to In re Washington's Estate, 212 S.C. 379, 46 S.E. (2d) 287, and Harris v. Berry, 231 S.C. 201, 98 S.E. (2d) 251, in both of which the questions were submitted in the following form and order:
1. Did _________, at the time of the execution of the paper propounded herein as his will, have sufficient mental capacity to make his will and understand its contents?
2. Was _________ acting under undue influence of _________ when he executed said paper,
3. Is the paper propounded as his will the true will of _________?
We find no fault with that method of submitting the questions, either as to phraseology or as to numerical order. None was suggested in the appeal of either of those cases. It does not follow that in the case at bar the trial judge erred in submitting the questions as he did.
*69 In the absence of statute prescribing otherwise, the number and form of questions to be submitted to the jury in cases of this kind are left to the discretion of the trial judge, the only requirements being: (1) that they must be confined to factual issues, and (2) that they must be presented in simple form, conducive to their proper answering by the jury. 57 Am. Jur., Wills, Section 929; 95 C.J.S., Wills, § 434; Bruton v. Smith, 174 Md. 516, 199 A. 517; In re Herring's Will, 152 N.C. 258, 67 S.E. 570. Appellants cite no authority, and we know of none, for the proposition that they must be presented to the jury in a certain order. We think that the numerical order in which they are framed for the jury's consideration, as well as the form in which they are presented, is a matter properly to be left to the sound discretion of the trial judge. Such questions are essentially a part of his charge to the jury, which should be viewed as a whole. So considering them in the instant case, we find no error.
Affirmed.
STUKES, C.J., and TAYLOR, OXNER and MOSS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331342/ | 650 S.E.2d 591 (2007)
DALTON
v.
The STATE.
No. A07A1101.
Court of Appeals of Georgia.
July 18, 2007.
Michael Bernard King, Atlanta, for Appellant
Raines Felton Carter, Solicitor-General, and Barbara M. Collins, Asst. Solicitor-General, for Appellee.
SMITH, Presiding Judge.
Derek Dalton appeals his conviction for leaving the scene of an accident, OCGA § 40-6-270, contending in his sole enumeration of error that the State failed to prove all the elements of the offense. We disagree and affirm.
Construed in favor of the verdict, the evidence shows that Dalton was driving a tractor-trailer in heavy traffic when he struck the rear of the victim's car. He told the police officer he thought he had "just tapped" and "didn't do no damage," so he "just moved on with all the traffic problems. He couldn't get over." He also stated that he left the scene because "he thought the lady had motioned for him to leave."
Dalton contends that the State failed to prove any injury to person or vehicle damage within the meaning of the Code section. This, however, is foreclosed by our decisions in McKay v. State, 264 Ga.App. 726, 727-728(1), 592 S.E.2d 135 (2003), and Dworkin v. State, 210 Ga.App. 461, 462, 436 S.E.2d 665 (1993). The State is not required to prove actual damage, because this is not the appropriate statutory test.
OCGA § 40-6-270(a)(1) provides that the driver of any vehicle involved in an accident resulting in damage to another vehicle
shall immediately stop such vehicle at the scene of the accident, shall give his name and address and the registration number of the vehicle he is driving, and . . . upon request and if it is available, exhibit his operator's license to the person struck. In every incident, the law requires a driver to remain at the scene of the accident until fulfilling the requirements of this subsection. Subsection (c)(1) imposes misdemeanor punishment upon a driver who knowingly fails to stop or comply with the requirements of the Code section. To prove the knowledge element of the offense, it is not absolute and positive knowledge which must be shown, but rather only that the circumstances were such that a reasonable person would have believed that an accident had occurred resulting in death, damage or injury to another.
(Citations, punctuation and footnotes omitted.) McKay, supra, 264 Ga.App. at 728, 592 S.E.2d 135.
In Dworkin, supra, the appellant struck a pedestrian a glancing blow with his side mirror, breaking his arm, but maintained that he did not know at the time that he had collided with anything. 210 Ga.App. at 462, 436 S.E.2d 665. We nevertheless held that the *592 evidence, though circumstantial, was ample to support a conviction for leaving the scene of an accident. Id. at 463, 436 S.E.2d 665. In McKay, the appellant knew that he had struck the victim but told her when she confronted him, "I didn't hit you that hard," and left the scene on foot. 264 Ga.App. at 728, 592 S.E.2d 135. On appeal, McKay argued that at the time he left the scene he had no knowledge that the victim had been injured; in fact, the victim was unaware of her injuries until the following day. We disagreed, observing that even though the victim was unaware of her minor injuries at the time, she did not tell McKay that she was uninjured, and McKay did not testify otherwise. We concluded that "[t]he evidence clearly shows that McKay left the accident scene without providing the mandatory identifying information to a person whom he knew had been hit by his truck. Thus, the record contains evidence to support the verdict. See Dworkin, supra at 463, 436 S.E.2d 665." Id.
Lawrence v. State, 257 Ga.App. 592, 571 S.E.2d 812 (2002) (physical precedent only), is inapposite because in that case the defendant stopped and examined the car in company with the victim, and determined that the only damage to the car was that the license plate had been knocked off. Id. at 592, 571 S.E.2d 812.
The clear legislative purpose of requiring a motorist to stop and provide identifying information when he damages another's car is to provide a means for the harmed person to contact the wrongdoer and seek compensation. OCGA § 40-6-270 does not criminalize the collision itself, but the hit and run driver's attempt to evade civil liability by leaving the scene before the injured party can establish his identity. Where, as in this case, the evidence shows that the person who caused the collision stopped and found no damage and that the only asserted harm was superficial, there is no civil liability to avoid, and the statutory requirement serves no purpose.
(Citation and footnote omitted.) Id. at 594, 571 S.E.2d 812.
Here, in contrast, Dalton acknowledged that he did not stop at all, and thus the purpose of the statute was frustrated. Under the circumstances, the trial court was authorized to conclude that a collision between a tractor-trailer and a car of sufficient force for the tractor-trailer driver to be aware of the impact was likely to result in damage to the smaller vehicle. As the special concurrence in Lawrence noted, even physically minor damage to a vehicle may require a substantial sum of money to repair. 257 Ga.App. at 594, 571 S.E.2d 812 (special concurrence). Dalton admittedly knew a collision had occurred but did not stop and made absolutely no effort to ascertain whether damage had resulted. His personal opinion that no damage occurred is no more valid than the appellant's assertion in McKay that the victim was not hurt, even though the victim did not know she was injured until later. 264 Ga.App. at 728, 592 S.E.2d 135.
On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; an appellate court determines evidence sufficiency and does not weigh the evidence or determine credibility. To support the verdict, circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis.
(Citations omitted.) Dworkin, supra, 210 Ga. App. at 463, 436 S.E.2d 665. Applying this standard to the facts of record, sufficient evidence was introduced that Dalton was aware that he had struck a car with his tractor-trailer, that damage in some monetary amount was possible, and that at a minimum he should have stopped and investigated further rather than leaving the scene without communicating with the victim. The trial court therefore did not err in denying the motion for directed verdict.
Judgment affirmed.
BARNES, C.J., and MILLER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331349/ | 101 Ga. App. 79 (1960)
113 S.E.2d 159
MOON
v.
JONES.
38041.
Court of Appeals of Georgia.
Decided January 21, 1960.
*80 Leonard Pennisi, for plaintiff in error.
T. B. Higdon, contra.
TOWNSEND, Judge.
1. On motion to dismiss in the nature of a general demurrer the burden is upon the plaintiff to allege facts which will entitle him to recover, including the jurisdiction of the court in which his action is brought, and the pleadings will be strictly construed against him. The ordinary has no jurisdiction to remove obstructions from areas except those designated as private ways (Code § 83-119) and these private ways may originate either in prescription (Code § 83-112) and as ways which have been used for as much as a year and no notice to close has been given (Code § 83-114). Johnson v. Williams, 138 Ga. 853 (2) (76 S.E. 380). An alley which is not designated as either public or private may be either. If the former, it is the same as a public street; if the latter, it is the same as a private way. See Scott v. Reynolds, 70 Ga. App. 545, 548 (29 S.E.2d 88). Proof that the owner of land by a recorded plat divides it into lots, streets and alleys, and sells the land in reference to such plat is proof of the owner's offer to dedicate such streets and alleys to public use. Scott case, supra, page 551. Proof that such alley has been used by the public in general for more than 20 years is sufficient to show an implied acceptance by the public of the offer to dedicate, so as to constitute the alley a public alley. Henderson v. Ezzard, 75 Ga. App. 724 (2) (44 S.E.2d 397). Where the alley is not designated as either public or private, according to Black's Law Dictionary, "it means a public way unless the word `private' is prefixed or the context requires a different meaning." In 3 C. J. S. p. 885 it is stated: "The word has reference more particularly to the ways or thoroughfares of towns and cities, and, when not qualified *81 by the term `private' is conventionally understood in its relation to towns or cities as a narrow street, passage, or way in common use . . . and the term . . . will be taken to mean a public alley" unless a different connotation is required.
The plaintiff here struck from his petition all words indicating the way in question was a private way or alley, and failed to designate whether he referred to a private or public way. Since the word "alley" when not otherwise designated must be taken to mean a public rather than a private way, the petition here fails to show facts which would give the ordinary jurisdiction to remove the obstruction complained of. Accordingly, the judge of the superior court did not err in sustaining the motion to dismiss the petition.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331356/ | 650 S.E.2d 409 (2007)
ESSUON
v.
The STATE.
No. A07A1379.
Court of Appeals of Georgia.
July 30, 2007.
*410 Robert L. Persse, for appellant.
Richard A. Mallard, District Attorney, W. Scott Brannen, Assistant District Attorney, for appellee.
PHIPPS, Judge.
Kwame Essuon appeals his convictions on two counts of criminal solicitation to commit a felony (the underlying felony in this case being murder). He challenges the sufficiency of the evidence and the legality of his sentences, and he contends that the court erred in failing to instruct the jury on the definitions of "felony" and "murder" as essential elements of the crime charged. Although we find the evidence sufficient, we are compelled to reverse Essuon's convictions based on his complaint concerning the jury charge. Issues relating to sentencing are, therefore, moot.
The state's lead witness, Willie Remone Oglesby, had known Essuon for several years. Their degree of familiarity was such that Oglesby called Essuon "Black," and Essuon at times called Oglesby "Mone." In a telephone conversation, Essuon told Oglesby that he had a matter he wanted to discuss with him in person. Oglesby testified that when he later went to Essuon's house, Essuon asked for his assistance in "taking Steven [Sheffield] out" in order to send a message to him and everyone else that "[t]his was where he was basically drawing the line at." Oglesby further testified, "And when I said taking Steven out, he wanted me to kill Steven for him." According to Oglesby, Essuon, knowing that Oglesby had wartime military experience, specified that he wanted him to kill Sheffield with one gunshot to the chest. Oglesby testified that he ended the meeting by leading Essuon to believe that he was going to evaluate the feasibility of killing Sheffield and then telling Essuon that he would get back to him.
Instead, Oglesby contacted law enforcement authorities and told them what had occurred. At the request of Charles Sullenger (a special agent with the Georgia Bureau of Investigation (GBI)), Oglesby placed a telephone call to Essuon, a recording of which was played to the jury. The jury then heard a recording of another conversation between Oglesby and Essuon, followed by a recording of a later conversation between Oglesby, Essuon, and Michel Washington (an undercover GBI agent) at Essuon's home.
During the second conversation between Oglesby and Essuon, Oglesby raised the matter of "Stevie." Oglesby later asked Essuon, "what kind of time frame you want this done in?" Essuon responded, "whatever convenient for all sides. You know you know what I'm saying? Cause I already know, you know, you know all the ins and outs of this. . . ." Oglesby then informed Essuon, "I can do it, you know, anytime next week. . . . I'll call my homeboy from North Carolina. . . . He at Fort Bragg. . . . He gonna go to Iraq." Oglesby then cautioned Essuon, "we ain't talking about no bullshit now. I'm talking about, don't say shit to nobody. You know what I'm saying? *411 I'm giving you myputting my life in your hands." To that, Essuon responded, "I feel you, man." Essuon later commented to Oglesby, "I got some cats from Atl that would come down, and they'd do it. But they [don't] really know their way around here. . . ." And afterward Oglesby told Essuon that "[i]t's gonna be dark, so thatthat red shows everything. Look like daylight." Oglesby explained to the jury that in the street slang, he was telling Essuon that he planned to kill the intended victim at night with a gun equipped with an infrared scope.
Oglesby later returned to Essuon's residence with Washington. The recording of the conversation between the three of them showed that Oglesby introduced the undercover agent to Essuon as "Nick," saying, "Hey, Black, this my boy Nick I mentioned to you. Nick, this is Black. This is my partner. He's like a brother now." Oglesby then said, "[i]t's time to move[,]" and Washington then advised Essuon to keep two or three people with him during the entire day. Essuon said that he would. After Washington told Essuon that they would need a down payment, Essuon responded, "[C]heck back with me in about an hour or so. I'll be able to put like five on it. . . . I mean, what y'all want for the whole thing?" Washington responded, "Fifteen," and Essuon agreed. Oglesby explained to the jury that, in street slang, five and fifteen meant $500 and $1,500 respectively. Shortly thereafter, Oglesby and Washington left, telling Essuon they were going to "ride out there and peep him one more time."
Instead, they went back to Agent Sullenger's office. A couple of hours later, Oglesby and Washington met back with Essuon at an apartment complex. After they arrived, Essuon appeared on the scene, approached their car, and engaged them in another conversation. A recording of that conversation showed that Essuon thereupon informed Oglesby and Washington, "I got $4.00, you know what I'm saying? I mean, the money good. You know what I'm saying? My thing is, you know what I'm saying, I'm kind of putting my neck on line cause I don't know if shit gonna jump off. You know what I'm saying?" Washington then assured Essuon, "It's gonna go man. You tell me what you want done to him." Essuon responded, "me and Mone already discussed it." Essuon later said, "I really want to do it myself, but you know my situation." Essuon subsequently gave money to Oglesby. At that time, Washington informed Essuon that "[i]t's gonna be up close and personal now" and asked whether Essuon wanted him "to tell [Stevie] anything." Essuon responded, "It's all G[,]" meaning "good." Oglesby and Washington then left the apartment complex.
The indictment charged Essuon with two counts of criminal solicitation to commit the felony of murder based on allegations that he had asked Oglesby to kill Sheffield during their initial meeting and that, at their next meeting, he had solicited Washington to commit murder by hiring him to kill Sheffield. Washington, as well as Oglesby, testified at trial. In closing, defense counsel argued that because there was nothing explicitly said in any of the parties' recorded conversations about a murder or killing, the state's case turned on the testimony of Oglesby, who had made conflicting statements and was not a credible witness.
As to the offense of criminal solicitation, the trial court read the allegations of the indictment to the jury; and, in accordance with OCGA § 16-4-7(a), the court charged the jury that
the law of Georgia provides that a person commits criminal solicitation when, with intent that another person engage in conduct constituting a felony, that person solicits, requests, commands, urges, or otherwise attempts to cause the other person to engage in conduct and does create a clear and present dangerdanger that the other person will engage in such conduct constituting a felony.
Neither defense counsel nor the prosecutor raised any specific objections to the jury charge, although defense counsel reserved his objections. After the jury found Essuon guilty on both counts, the court imposed two consecutive sentences of five years' imprisonment. Essuon moved for new trial based on the claims of error he now raises. Following the court's denial of his motion, Essuon filed this appeal.
*412 1. The audio recordings presented to the jury, in conjunction with Oglesby's testimony, were sufficient to authorize any rational trier of fact to find Essuon guilty beyond a reasonable doubt of the two counts of criminal solicitation to commit murder.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and [Essuon] no longer enjoys the presumption of innocence. We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.[1]
2. A reversal of Essuon's convictions is required, however, due to the trial court's error in failing to instruct the jury on the legal definitions of "felony" and "murder," as these were essential elements of the crime charged.
"It is the duty of the judge, with or without request, to give the jury an appropriate instruction as to the law on each substantive point of issue involved in a case so as to enable the jury to judiciously decide the guilt or innocence of a defendant."[2] "The trial judge must charge the jury on each crime specified in the indictment or accusation, unless the evidence does not warrant a conviction of such crime, or unless the state has affirmatively withdrawn a crime or stricken it from the indictment or accusation."[3] Where, as here, certain legal offenses (i.e., felony, murder) constitute elements of the crime charged (i.e., criminal solicitation), we have held that, even in the absence of a request to so charge, the trial court errs in failing to provide the jury with the legal definitions of the elemental crimes.[4] In Phelps v. State,[5] we concluded that without such a proper instruction, "the charge was substantially in error, was harmful as a matter of law, and that [defendant] was deprived of his right to a fair trial."[6] As stated in Phelps, "[w]e will not presume, in the absence of a proper instruction from the court, that a jury is cognizant of the legal definition of [an underlying offense] and will apply the appropriate legal standard in [deciding the case]."[7]
There is no merit in the state's argument that the charge as a whole was sufficient to convey the intended meaning to the jury, because nowhere in the remainder of the charge did the trial court define the elements of the underlying offenses for the jury. Nor is there any merit in the state's suggestion that any error in the charge was harmless. It would appear that where, as here, facts have been shown giving rise to an error that is "harmful as a matter of law," no additional facts could render the error harmless. And although we have entertained a claim that a failure to instruct the jury on the elements of an underlying offense was harmless error because the evidence was overwhelming,[8] we have not been cited to any case, nor have we found any, in which an error harmful as a matter of law has not resulted in a reversal.
*413 For these reasons, Essuon's convictions must be reversed.
Judgment reversed.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] Thomas v. State, 273 Ga.App. 357, 358(1), 615 S.E.2d 196 (2005) (footnotes and punctuation omitted).
[2] Powers v. State, 150 Ga.App. 25, 26(3)(A), 256 S.E.2d 637 (1979) (citations and punctuation omitted).
[3] Gardner v. State, 185 Ga.App. 184, 363 S.E.2d 843 (1987) (citation, punctuation, and emphasis omitted).
[4] See Moore v. State, 235 Ga.App. 175, 509 S.E.2d 108 (1998) (defendant's convictions of burglary with intent to commit rape reversed where trial court failed to legally define rape for jury); Phelps v. State, 192 Ga.App. 193, 195(1), 384 S.E.2d 260 (1989) (same as Moore); Gardner v. State, supra (defendant's criminal trespass conviction reversed where trial court did not charge jury on elements of that crime); Powers v. State, supra (same as Moore and Phelps ).
[5] Supra.
[6] 192 Ga.App. at 196(1), 384 S.E.2d 260 (citing OCGA § 5-5-24(c) and cases).
[7] Id. (citation and punctuation omitted).
[8] See Moore v. State, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262878/ | 18 Md. App. 368 (1973)
306 A.2d 642
STEPHEN WILLIAM MINOVICH
v.
STATE OF MARYLAND.
No. 661, September Term, 1972.
Court of Special Appeals of Maryland.
Decided July 9, 1973.
*369 The cause was argued before THOMPSON, CARTER and GILBERT, JJ.
Charles Michael Tobin for appellant.
Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State's Attorney for Montgomery County, and Gerald E. Mitchell, Assistant State's Attorney for Montgomery County, on the brief, for appellee.
THOMPSON, J., delivered the opinion of the Court.
Stephen William Minovich was indicted for murder in connection with the shooting death of a close friend. After entering pleas of not guilty and insanity at the time of the alleged crime, he was tried before a jury in the Circuit Court for Montgomery County. The jury returned a verdict of murder in the second degree. The questions raised on appeal will be stated separately.
I Insanity Questions
At trial, Minovich offered medical evidence that he was insane within the meaning of the Maryland statute at the time the crime was committed. There was also medical evidence that he was sane within the meaning of the Maryland law at the time the crime was committed. At the conclusion of his charge the trial judge directed the jury to return one of six possible verdicts: (1) "Not guilty"; (2) "Not guilty by reason of insanity"; (3) "Guilty of murder in the first degree"; (4) "Guilty of murder in the first degree without capital punishment"; (5) "Not guilty of murder in the first degree but guilty of murder in the second degree"; or (6) "Not guilty of murder but guilty of manslaughter." There was no exception to this part of the instructions, but *370 on appeal Minovich alleges reversible error because the jury failed to render a special verdict on sanity of the defendant at the time of the alleged crime as specifically required by Md. Code, Art. 59, § 25 (b).[1]
Under Md. Rule 756 g an appellant is entitled as a matter of right to assign error in any instructions to which he has *371 particularly excepted at the trial. We are enjoined, however, to notice any plain error in the instructions "material to the rights of the accused even though such error is not objected to." We now consider whether the error was material to the rights of the accused. We held in Turner v. State, supra, there was no reversible error where the trial judge in a bench trial reserved the preliminary question as to the sufficiency of the evidence to raise the issue of insanity pursuant to a written plea filed therein and did not at trial render a special verdict under the plea. In that case the evidence presented was insufficient to raise the threshold question as to sanity. Under those circumstances we found that although the violation of the statute was error, there was, on the record, no prejudice to the rights of the accused and the error was harmless.
In Tanner v. State, 9 Md. App. 462, 265 A.2d 573, cert. den. 259 Md. 736, where the trial judge improperly ruled that the appellant had failed to present sufficient evidence to permit the issue to be determined by the jury, we remanded the case for the sole purpose of determination of the question of the appellant's sanity either before a jury or a judge as appellant might elect. We directed that the verdict of guilty should stand unless the trier of the fact found that the appellant was insane at the time of the crime in which event the trial court was directed to vacate the judgment of conviction. The question presented in the instant case is, of course, beyond the questions covered in either Turner or Tanner but based on their reasoning, unless some prejudice to the appellant's rights are found in the record, there is no reason why the judgment of guilty should not stand.[2]
The record shows that the trial judge read his instructions to the jury and furnished them with a typewritten copy thereof. The instructions were twenty-four pages in length, more than twelve pages of which were devoted to the *372 question of the sanity of the appellant at the time of the crime. The instructions included the following:
"The first question with which you are confronted is, therefore, whether the Defendant, at the time of the act charged against him as a crime, was or was not afflicted by mental disorder."
* * *
"I have said that the first question before you is whether or not the Defendant suffered from a mental disorder at the time of the conduct charged.
"If you are satisfied beyond a reasonable doubt that he did not, that is an end of the defense.
"If, however, you find that he was suffering from mental disorder at the time, or if you have a reasonable doubt as to whether he was or not, the second question then arises."
* * *
"It is for you to judge on all the evidence before you whether the Defendant lacked substantial capacity to appreciate the criminality of his behavior when he acted as he did.
"If you find that the Defendant as a result of mental disorder lacked substantial capacity at the time of his conduct to appreciate its criminality, or if you have a reasonable doubt as to whether he lacked such capacity or not, I charge you that it is your duty to return a verdict of not guilty on the ground of insanity, stating in your verdict that you base it on that ground."
* * *
"... I have had these possible verdicts typed up and your Foreman will be given a copy of them. You shall return only one of them."
* * *
"No. 2 verdict: If you are convinced beyond a *373 reasonable doubt that he unlawfully killed George Daugherty, but you're not convinced beyond a reasonable doubt that he was sane when he did so, then your verdict will be `not guilty by reason of insanity.'
"If such a verdict is returned, this Court may commit Mr. Minovich to a mental institution for examination and evaluation to determine whether or not, by reason of mental disorder, the person is a danger to himself or to his own safety, or will be a menace to the safety of the person or property of others."
Additionally, while the trial judge was reviewing each of the six possible verdicts, he instructed the jury specifically it could return one of verdicts (3), (4), (5) or (6) if "you are satisfied beyond a reasonable doubt that he unlawfully killed George Daugherty and also that he was sane at the time he did so."
We indicated in Saul v. State, supra, note 2, one of the reasons why trial courts should comply strictly with the statute was so that the record would show that the jury had specifically considered the issue of insanity before making a finding as to guilt or innocence. On the record before us it is apparent to us that the jury did so. Indeed, while the jury was deliberating it sent a question to the trial judge pertaining to the meaning of certain words used in the testimony as to insanity. We hold that on this record, although the trial judge was in error in failing to require a separate verdict as to sanity, no rights of the accused were prejudiced.[3]
After the pretrial ruling that the accused had presented sufficient evidence to present a jury question as to sanity, the court ruled that the burden of proof was on the appellant as to insanity and the State could bring its evidence in by *374 way of rebuttal. The ruling of course was contrary to several decisions of this Court including Strawderman v. State, 4 Md. App. 689, 244 A.2d 888, Turner v. State, supra, as well as prior rulings of the Court of Appeals, Bradford v. State, 234 Md. 505, 200 A.2d 150. In accordance with the ruling of the trial court the prosecutor in his opening statement advised the jury that if the appellant produced evidence concerning the insanity of the accused at the time of the offense, the State would, in rebuttal, offer evidence that the accused was sane at the time of the offense. On the second day of trial, the trial judge realized his error and so informed the parties, whereupon the State properly produced, during its case in chief, its evidence concerning sanity of the accused at the time of the offense. It is difficult for us to see how this confusion in the trial court could have in anywise been prejudicial to the appellant. We recently ruled in Powell v. State, 16 Md. App. 685, 299 A.2d 454, that where the State withheld exculpatory evidence and opening statements were made accordingly, the error was corrected when the evidence was produced by the State prior to the conclusion of the trial and the accused had the benefit of that evidence. We think the question in the instant case is governed by the rationale of Powell.
II Sentencing
Citing Bullock v. Director, 231 Md. 629, 633, 190 A.2d 789 and Duffin v. Warden, 235 Md. 685, 202 A.2d 597, Minovich contends the trial judge, purporting to act under Rule 764, revised his sentence after an appeal had been noted in the case and when the trial court was without jurisdiction to do so. Under our view of the case, the action of the trial judge did not amount to a revision of the sentence.
On January 29, 1972, after the jury rendered a verdict of guilty of murder in the second degree "with recommendation for mercy", the trial judge revoked Minovich's bond and placed him in the custody of the sheriff pending a presentence investigation. The docket entry on August 11, 1972, reads:
*375 "... Sentence of the Court that defendant be sentenced for a term of five (5) years Court suspends execution of all but One Hundred Seventy-nine (179) days of sentence, which is to be served in Detention Center defendant placed on probation for balance of term if it can be demonstrated to Court the following: that defendant will be employed full time that he continue psychotherapy with progress reports to probation officer; that he abstain from all alcohol except sacramental that he possess no firearms. At end of confinement it is to be presented to the Court that above conditions have been complied with."
It will be noted that the docket entry is ambiguous as to whether or not the court imposed a five year sentence and suspended the remaining time after the 179 days or simply stated his intention in the future to grant probation if certain terms and conditions could be met at the end of the 179 days. Our reading of the transcript at the sentence hearing tends to support the view that a five year sentence was imposed and the judge expressed an intention after 179 days to suspend the balance at that time if the conditions were met. If the trial judge imposed a five year sentence and simply stated his intention to suspend the sentence after 179 days, the subsequent denial of probation would, of course, not amount to an alteration in sentence and the question presented would be moot. There are several factors, however, which indicate that this would be an erroneous construction of the actions of the trial judge. As we shall demonstrate hereinafter, the trial judge treated the situation as though he granted probation for the remainder of the term at the time sentence was imposed. Secondly, Md. Code, Art. 27, § 705 F, provides that an offender may not be sentenced to a regional detention center if the sentence is more than 18 months. Thirdly, under Md. Rule 764, absent an appeal, the court's power to revise the sentence would expire within 90 days and the court would be without power to accomplish the result he desired. We will, therefore, treat *376 the case as though probation was granted on August 11, 1972.
The transcript shows that on August 28, 1972, Minovich was interviewed by a probation officer. Minovich filed an appeal to this Court on September 8, 1972. When the trial judge received the probation report, he, purporting to act under Md. Rule 764, sua sponte passed an order directing the case be set down for hearing on the first of November for reconsideration of the sentence. At that hearing the court announced it had set the case for hearing because it had received the report of the Probation Department. Stating that he had previously furnished counsel a copy of the report, he directed the court clerk to file the report in the record. The report is not in the record as transmitted to us but that is of no consequence as no issue is presented to us concerning the factual basis for the revocation. At the hearing the judge "revoked probation" in the following language:
"I have to concur in the comment that has been made this morning: that I am not shown any affirmative response even today. So the conclusion of the court is that I shall revoke the suspension of the execution of the sentence and remand the prisoner to the Department of Correction of Maryland.
"It is my intention to make the psychiatric reports on this prisoner available to the parole board so that they will be fully apprised of the risks that even his own psychiatrists anticipate would be involved if they are undertaking considering a parole.
"I am still of the mind that with a will and a disposition to work out some structured circumstances he could be free in society, but until that can be effectively carried out the Court cannot countenance any further delay. It is my conviction that for whatever resources they may have available in the state institutions, it is time for them to be available to this man.
*377 "Mr. Minovich, all I can say is that the court has been struggling for months to help you to rehabilitate yourself, but I seem to have failed and it is going to be in the hands of somebody else."
The docket entries for November 1, 1972 show: ". .. Court .... revokes suspension of execution of sentence and remands defendant to the Department of Correction with credit for time previously served."
Under our construction of the legal effect of the trial judge's rulings the precise question before us is: Can a trial judge revoke probation while an appeal is pending? Under this view we do not reach the question of whether or not he has power to revise a sentence under Maryland Rule 764.
In Bullock v. Director, supra, 231 Md. 633, the Court pointed out "[a]n appeal to this Court from a nisi prius court does not necessarily stay all further proceedings in the trial court, nor does it strip said court of all power over the proceeding in which the appeal has been taken. The trial court may act with reference to matters not relating to the subject matter of, or affecting, the proceeding; ..." Many other cases contain similar language. State v. Jacobs, 242 Md. 538, 219 A.2d 836; Avirett v. State, 76 Md. 510, 539, 25 A. 987; Moore v. State, 15 Md. App. 396, 399, 291 A.2d 73. The Supreme Court in Berman v. United States, 302 U.S. 211. 58 S.Ct. 164, 82 L.Ed. 204 (1938), while holding that an accused could not be resentenced during the pendency of an appeal, stated as follows at 302 U.S. 213, 58 S.Ct. 166: "Placing petitioner upon probation did not affect the finality of the judgment. Probation is concerned with rehabilitation, not with the determination of guilt. It does not secure reconsideration of issues that have been determined or change the judgment that has been rendered." Relying on this language, the Court in United States v. Lindh, 148 F.2d 332, (3rd Cir.) held specifically "while the District Court is without jurisdiction during the pendency of the appeal to modify that judgment it retained and still does retain, despite the pendency of the appeal, the power to modify or *378 suspend or otherwise deal with the terms of the petitioner's probation. Probation is separate and distinct from sentence." We hold an appeal does not preclude a trial judge from revoking probation while the appeal is pending.
Judgment affirmed.
NOTES
[1] If the error were jurisdictional, we are required by Md. Rule 1085 to review the question. The question as to whether or not such an error is jurisdictional was settled by Berman v. Warden, 232 Md. 642,193 A.2d 551, wherein the Court of Appeals of Maryland held that it was not. The history of this question is interesting and we will set it out by quoting Turner v. State, 5 Md. App. 584, 588, 248 A.2d 801:
"In Price v. State, 159 Md. 491 (1930), by a four to three decision, the Court of Appeals reversed a judgment on a conviction of murder in the first degree, holding that where a defense of insanity was raised the jury should have rendered a separate verdict on the issue of insanity, by a proper construction of the statute then in effect, Md. Code, (1924), Art. 59, § 6. This statute had been in effect for more than a century with a consistent practice contrary to the holding of the majority. Berman v. Warden, 232 Md. 642, 646. Shortly thereafter, in 1931, the General Assembly amended the section to require a preliminary hearing on insanity and by Ch. 81, Acts of the Special Session of 1933, reinstated the former practice. Codified as Art. 59, § 7 the Act provided, among other things, that if a verdict does not contain a finding on insanity, a finding of sanity is conclusively presumed from the verdict of guilty of the crime charged. In Berman v. Warden, supra, Berman, who had been convicted in 1928, raised under post conviction procedures the same issue which had been raised in Price and relied on that opinion. Denying the application for leave to appeal the Court assumed but did not decide that the statute, construed in Price and applicable at the time of Berman's conviction, required a separate verdict on the issue of insanity and that the failure to render such a verdict was not cured by a general verdict of guilty in which a finding of sanity would seem to be implicit. It held, however, that the failure to render such a verdict was `[a]t most * * * a technical error in procedure which did not nullify the judgment of a court of general jurisdiction having complete jurisdiction of the person and subject matter, or render it subject to collateral attack.' It said, at 646:
`We are not aware of any decision of the Supreme Court of the United States, or of any federal court, holding that the rendition of a general verdict or the entry of a judgment under such circumstances is a violation of due process.'
It expressly overruled the holding in Price that the error was jurisdictional. Chapter 709, Acts of 1967, repealed former § 7-12 of Art. 59 and enacted new § 7-12 in lieu thereof."
By the Laws of Maryland 1970, Chapter 407, the Maryland legislature extensively revised Art. 59, but re-enacted § 7-12 as § 25 (b) in almost identical language.
[2] We have already indicated that trial courts should comply with the statute and direct the jury to render a special verdict on the sanity of the accused at the time of the alleged crime. Saul v. State, 6 Md. App. 540, 252 A.2d 282, affirmed on other grounds, State v. Saul, 258 Md. 100, 265 A.2d 178.
[3] This holding is consistent with the Maryland rule pertaining to inconsistent verdicts. The decisions of the Maryland Court of Appeals and of this Court were reviewed in McDuffie v. State, 12 Md. App. 264, 278 A.2d 307. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262879/ | 207 F.Supp. 355 (1962)
KESSLER EXPORT CORPORATION, a domestic corporation, Plaintiff,
v.
RELIANCE INSURANCE COMPANY OF PHILADELPHIA, PENN., and American Insurance Company of Newark, N. J., Defendants.
No. 60-C-1094.
United States District Court E. D. New York.
May 14, 1962.
*356 William A. Stetter, Jr., New York City, for plaintiff; Robert Heller, Brooklyn, N. Y., of counsel.
Greenhill & Speyer, New York City, for defendant Reliance Ins. Co. of Philadelphia, Pa.; Simon Greenhill, John M. Speyer, New York City, of counsel.
Abrams & Bleich, New York City, for defendant American Ins. Co. of Newark, N. J.; Benjamin M. Haber, New York City, of counsel.
BARTELS, District Judge.
This action, predicated upon two policies of marine insurance, one issued by Reliance Insurance Company of Philadelphia, Penn. (hereafter "Reliance") and the other by American Insurance Company of Newark, N. J. (hereafter "American"), both in favor of the plaintiff, arises out of the theft of a shipment of surplus sunglasses loaded upon a carrier's truck stationed upon plaintiff's premises.
Upon the calendar call the parties appeared before the Court and indicated that there was one issue, i. e., coverage of the policies, which required decision before the trial could proceed and they thereupon waived a trial by jury and agreed to submit the resolution of this issue to the decision of the Court upon a stipulation of facts signed by them, which was made part of the record as Exhibit I. From this exhibit the pertinent facts appear as follows.
FACTS
The relevant portions of the Reliance policy provide as follows:
"12. Warehouse to Warehouse Clause. This insurance attaches from the time the goods leave the Warehouse and/or Store at the place named in the policy for the commencement of the transit and continues during the ordinary course of transit, including customary transshipment if any, until the goods are discharged overside from the overseas vessel at the final port. Thereafter the insurance continues whilst the goods are in transit and/or awaiting transit until delivered to final warehouse at the destination named in the policy or until the expiry of 15 days (or 30 days if the destination to which the goods are insured is outside the limits of the port) whichever shall first occur. The time limits referred to above to be reckoned from midnight of the day on which the discharge overside of the goods hereby insured from the overseas vessel is completed. Held covered at a premium to be arranged in the event of transshipment, if any, other than as above and/or in the event of delay in excess of the above time limits arising from circumstances beyond the control of the Assured."
"MARINE EXTENSION CLAUSES
* * * * * *
"1. This insurance attaches from the time the goods leave the warehouse at the place named in the policy, certificate or declaration for the commencement of the transit and continues until the goods are delivered to the final warehouse at the destination named in the policy, certificate or declaration, or a substituted destination as provided in Clause 3 hereunder."
*357 Plaintiff also relies upon the following clause:
"16. Warehousing & Forwarding Charges, Packages Totally Lost Loading etc. Notwithstanding any average warranty contained herein, these Assurers agree to pay any landing, warehousing, forwarding and special charges for which this policy in the absence of such warranty would be liable. Also to pay the insured value of any package or packages which may be totally lost in loading, transshipment or discharge."
The relevant portions of the American policy provide as follows:
"4. This insurance covers only while the insured property is in transit within the limits of the Continental United States and Canada in the custody of:
"(a) Any railroad or railroad express company (including the risk while on ferries or in cars on transfers or lighters);
"(b) Public truckmen, land transfer or land transportation companies.
"This Policy also covers while on docks, wharves, piers, bulkheads, in depots, stations or on platforms, but only while in the custody of a common carrier incidental to transportation.
"This insurance attaches from the time the goods leave factory, store or warehouse at initial point of shipment, and covers thereafter continuously, in due course of transportation, until same are delivered at store or warehouse at destination."
Plaintiff, whose office and warehouse is located in Brooklyn, arranged for the shipment of certain merchandise (consisting of surplus sunglasses) to Casablanca, Morocco. Accordingly plaintiff engaged Abraham Rosen of Rosen's Trucking to pick up the shipment at plaintiff's warehouse and to deliver the same to a vessel located at Pier 1, Erie Basin, Brooklyn.
At approximately 2 P. M. on Friday, June 17, 1960, Rosen and his driver, Joseph Keezer, arrived at plaintiff's warehouse with the truck to pick up the shipment which was thereupon loaded onto Rosen's truck. At the inception of the loading the cab portion of the truck protruded from plaintiff's warehouse onto the sidewalk and the cargo section of the truck extended into the interior of the building. During the process of loading the truck was moved further out on to the sidewalk in order to permit the last portion of the cargo to be loaded onto the truck through the rear opening of the truck.[1] At all times, however, the actual loading took place totally within the confines of plaintiff's warehouse. When the truck was fully loaded, it was then backed completely into plaintiff's warehouse and the cargo portion secured. Rosen told plaintiff's president, Melvin Taks, that it was then too late to make the trip to the pier and that he would leave the truck in the warehouse and return Monday morning, June 20, 1960. Taks acquiesced and by mutual agreement the truck was left in the warehouse. After the truck was loaded Taks exhibited to Rosen a document purporting to be a bill of lading prepared by Taks and Rosen then affixed his signature thereto but Taks retained the document without Rosen receiving any copy thereof.
Rosen was to return on Monday morning, June 20, 1960, to pick up the loaded truck and a dock receipt which had also been prepared by plaintiff, and then make delivery to the pier. The truck (with its ignition key therein) and its contents were locked up inside of plaintiff's warehouse when plaintiff closed its building at about 5:15 P. M. on Friday, June 17th, and neither Rosen nor his driver at any time had the keys to the warehouse but the same remained in the possession of plaintiff. When the warehouse *358 was opened the following morning, Saturday, June 18th, the truck and its contents had been removed by an unknown person who had made an illegal entry into the building and the same were never recovered by plaintiff.
THE ISSUE
The issue of law presented by the foregoing facts is whether plaintiff's alleged loss is covered by the "warehouse to warehouse" paragraphs under the two policies. While the terms of the policies are not identical, the intent in both seems to be the same. In the Reliance policy the "insurance attaches from the time the goods leave the Warehouse and/or Store" for the commencement of the transit, and in the American policy the "insurance covers only while the insured property is in transit" in the custody of a common carrier and attaches "from the time the goods leave factory, store or warehouse".
Therefore the question to be decided is whether under the wording of the policies the parties intended that plaintiff's property would be insured while loaded on the truck of the carrier upon plaintiff's premises, ready to leave for transportation to the pier after a period of repose. In other words, whether the goods left the warehouse and were in transit within the purview of the policies. The intention of the parties must be found in the contract and the circumstances surrounding the same. Gracie v. Marine Insurance Co. of Baltimore, 1814, 8 Cranch 75 at page 82, 3 L.Ed. 492; Reed v. Merchant's Mutual Ins. Co., 1877, 95 U.S. 23, at page 30, 24 L.Ed. 348.
Plaintiff claims that the merchandise was in fact in transit and had left its premises within the intendment of the policies since the goods had been delivered to the custody of the trucker for transportation to the pier and that it was immaterial as far as the policies were concerned, that the truck remained on plaintiff's premises. This, of course, places quite a strain upon the common meaning of the words as used in the policies and also gives a new meaning to the words "in transit". The argument implies that the goods were constructively in transit. It should be noted in passing that the Reliance policy does not refer to the custody of the carrier and that the American policy refers to the custody of the carrier only in the sense that it adds another limitation to the coverage of the policy when the property is in transit. "Custody of the carrier" and "in transit" are not synonymous. In support of its contention plaintiff cites a number of cases which, in effect, provide that under certain circumstances goods may be deemed to be in transit even though at the time of the loss they were not in motion, i. e., Gulf Ins. Co. v. Ball, Tex.Civ.App.1959, 324 S.W.2d 605; Koury v. Providence-Washington Ins. Co., 1929, 50 R.I. 118, 145 A. 448; J. G. Ries & Sons, Inc. v. Automobile Ins. Co., 1939, 121 N.J.L. 493, 3 A.2d 610.
In the above cases the merchandise had left the premises of the insured shipper and was in the legal custody and control of the carrier. The fact that thereafter there was a suspension or cessation of movement did not vitiate the inception of the transit or the custody or control of the carrier. The facts in those cases are not analogous to those here present. Goods may be "in transit" although they are not continuously in motion. Plaintiff also cites the following cases referring to the carrier's liability when the shipper has surrendered custody of goods to the carrier for immediate transportation: St. Louis I. M. & S. R. Co. v. Murphy, 1895, 60 Ark. 33, 30 S.W. 419; Colorado & S. R. Co. v. Breniman, 1912, 22 Colo.App. 1, 125 P. 885; Nichols v. Smith, 1874, 115 Mass. 332; Fitchburg & W. R. Co. v. Hanna, 1856, 6 Gray (Mass.) 539, 66 Am.Dec. 426; Fisher v. Lake Shore & M. S. I. Co., 1899, 17 Ohio Cir.Ct.R. 491, 9 Ohio Cir.Dec. 413. These cases are likewise not relevant to the present discussion. The same may be said for the definition of the term "in transit" as used in Section 139 of the New York Personal Property Law, McKinney's Consol. Laws, c. 41 cited by the plaintiff. Here the Court is dealing *359 with the intent and interpretation of specific paragraphs of insurance policies to determine their respective coverage and not with the general liability of a carrier after custody of the goods has been surrendered to it by the shipper or with the right of a seller to stop goods while in transit as set forth in a statute.
On their part defendants contend that the policies do not and were never intended to cover a loss occurring before the goods leave the insured's premises and particularly while the same are within plaintiff's possession and control. Among other cases, they rely upon Plata American Trading, Inc. v. Lancashire, S.Ct., N.Y., 1957, 29 Misc.2d 246, 214 N.Y.S.2d 43, 1958 A.M.C. 2329, aff'd 6 A.D.2d 1036, 178 N.Y.S.2d 1021, leave to appeal denied, 7 A.D.2d 838, 182 N. Y.S.2d 295; Mayflower Dairy Products, Inc. v. Fidelity-Phenix Fire Ins. Co. of New York, 1938, App.Term, 1st Dept., 170 Misc. 2, 9 N.Y.S.2d 892; San-Nap-Pak Mfg. Co. v. Firemen's Ins. Co. of Newark, N. J., Cty.Ct., 1944, 47 N.Y.S. 2d 542; and Brammer Corp. v. Holland-America Ins. Co., 34 Misc.2d 337, 228 N. Y.S.2d 512.
In Plata a shipper of tallow purported to pump from his shore tanks 501 tons of tallow into a standby vessel but as a matter of fact, only permitted 375 tons to pass through the gauge pump and into the vessel, having diverted the balance by transfer into other shore tanks. The question posed was whether the balance of 126 tons represented a loss covered by the policy which provided that the insurance would attach "from the time the goods leave the warehouse at the place named in the policy for the commencement of the transit". It was held that since the tallow never passed through the gauge pump for the final passage to the vessel it had never been physically separated from the warehouse and consequently could not be said to be "in transit". Plaintiff states that this case is distinguishable because the shipper never intended the tallow to leave his premises. That, however, would seem to be unimportant if the goods in fact never left the shipper's possession and control.
Both in San-Nap-Pak and Mayflower the insured shipper was his own carrier and the trucks or trailers were loaded on one day for delivery at a subsequent period and were on plaintiff's premises at the time of the loss. The court held in the former case that the goods "had never started but were there awaiting the beginning of their transit toward their destination", and in the latter case that "transit cannot include a period commencing on the evening of one day when for its own convenience the seller in its own premises loads the goods on its truck, and extending then on through the night during which the loaded truck is stored in such premises on to that time in the morning of the next day when the truck is manned and proceeds on its way to the point of destination." These cases held that the goods loaded on the trucks were in fact in storage. Plaintiff argues with considerable persuasion that those cases are distinguishable on the ground that since the shipper acted as his own carrier, the loading of the trucks did not take the goods out of the shipper's custody and, moreover, the trucks remained on the shipper's premises for the convenience of the shipper. These authorities lay down the principle that the mere segregation of the goods for transit is not sufficient to constitute transit. This point is further illustrated in the Brammer case. There the goods were removed from the manufacturing area of the building and placed in the shipping area where they were turned over to the control of the trucker who left the goods in the shipping area for his own convenience for a period of time until the loss occurred. The court held that although the goods were placed in a position in the warehouse for transportation and had been checked out to the trucker "they were not checked out of plaintiff's building" and hence did not fall within the purview of the "warehouse to warehouse" clause of the insurance policy. Convenience would appear to be irrelevant. Regardless of *360 whose convenience is accommodated, the facts will control.
None of the foregoing cases cover the precise circumstances of the case at bar but the principles enunciated therein seem to be clear. As indicated by the authorities cited by plaintiff, there can be no doubt that if the goods leave the premises of the shipper in the custody of the trucker, they will nevertheless be covered by the policy even if the trucker's transportation is temporarily interrupted. In such a case the goods have left the shipper's premises and the trucker is deemed to have legal custody and control of the goods for the purpose of transit, the shipper being without possession or custody. When transit ceases may not always be crystal clear. For instance, it was held in Druss Stores, Inc. v. Travelers Indemnity Company, 1960, App.Term, 1st Dept., 23 Misc.2d 913, 206 N.Y.S.2d 236, that the goods ceased to be in transit when plaintiff's driver purposely passed the place of destination and parked his truck unattended in front of his home. It also follows that if the goods remain in the possession and control of the shipper even though the goods are loaded on trucks ready for transit, as illustrated in San-Nap-Pak and Mayflower, the insurance coverage does not attach.
CONCLUSION
In this case the goods were loaded on the carrier's truck on the shipper's premises. Were they in the legal custody of the carrier? Custody means the keeping or guarding of property by one who is charged with responsibility therefor and who has through physical control the power to provide the same. See Bierman-Danzi Corp. v. Firemen's Fund Ins. Co., Mun.Ct., 1952, 203 Misc. 119, 115 N.Y.S.2d 706; Hillcrea Export & Import Co., Inc. v. Universal Ins. Co., D.C.N.Y., 1953, 110 F.Supp. 204, 208, aff'd 2 Cir., 212 F.2d 206, cert. den., 348 U.S. 834, 75 S.Ct. 57, 99 L.Ed. 657. Obviously, the goods in this case were not in the legal custody of the carrier at the time the loss occurred. However, the Court does not believe that fact to be important here. The plaintiff could not prevail in either event because the goods had not left the shipper's premises.[2] Under these policies custody and control in the trucker becomes important only after the trucker has left the shipper's premises. Until that event there is no transit and it would stretch the imagination to believe that the parties intended otherwise. But in this case there is even a stronger element which seems to be conclusive in favor of the insurance companies. While the shipper in the first instance turned over the goods to the trucker for transportation, the plan was subsequently changed and when the shipper consented to permit the carrier's truck to remain loaded upon its premises with a key in the ignition, the shipper not only retained possession but also complete custody and control of the goods. The trucker no longer had, if he ever received, custody and control of the goods. During this intermediate period there was no intent that the goods should leave or transit begin. The shipper did not rely upon the responsibility of the trucker but upon its own ability to protect its possession and control. The sunglasses never left the shipper's premises and were not in transit and were not in the custody or control of the trucker. While the trucker gave a receipt for the goods the night before when he signed the so-called bill of lading, this receipt could not become effective until he began transit because actually he was not in *361 receipt of the goods and did not have possession, control or custody. It was never intended by that receipt that the trucker should be responsible for storage on plaintiff's premises during the night. It also appears, although it is not necessary to the decision, that it was not contemplated that the trucker should depart from the premises with the goods until he had received from the shipper on the day of departure a dock receipt covering the goods to be delivered to the pier.
It is hard to believe that a reasonable man in the shipper's position could construe the language in either policy as giving him protection under the circumstances of this case and this Court cannot, without doing violence to the language of the policies, find that the goods had left the shipper's premises or were in transit either actually or constructively.
A final word in answer to plaintiff's argument that paragraph 16 of the Reliance policy supports its position. That paragraph deals with "Warehousing & Forwarding Charges, Packages Totally Lost, Loading, etc.", the last line of which reads "Also to pay the insured value of any package or packages which may be totally lost in loading, transshipment or discharge". A reading of this paragraph clearly indicates that it refers to an exception to the Average Warranty contained in paragraph 15 of the policy and does not modify or restrict the "warehouse to warehouse" paragraph herein discussed. Moreover, it cannot be said that the goods in this case were "lost in loading" and consequently the loss does not come within its compass.
In view of this determination of the issue of coverage under the two policies, it becomes unnecessary to proceed with the trial of the other issues presented by the pleadings; accordingly the Court dismisses the complaint with prejudice and grants judgment for the defendants.
The foregoing constitutes the Court's findings of fact and conclusions of law.
Settle order within ten (10) days on two (2) days' notice.
NOTES
[1] Plaintiff argues that this movement to and from the sidewalk in the process of loading is relevant but the Court attaches no significance thereto.
[2] See Armory Mfg. Co. v. Gulf C. & S. F. Ry. Co., 1896, 89 Tex. 419, 37 S.W. 856, which involved the construction of a bill of lading exempting a common carrier from common law liability except liability for negligence, while the goods were "in transit or in depot or place of transshipment, or of landing at place of delivery". There cotton had been delivered by plaintiff to a compress company and was on the platform of the compress company awaiting shipment at the time the loss occurred. Held: the cotton was not actually "in transit" because it had not moved toward its destination and, further, that while on the platform it was not constructively in transit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262897/ | 207 F.Supp. 560 (1962)
COASTAL TERMINALS, INC., Plaintiff,
v.
UNITED STATES of America, Defendant.
Civ. A. No. 7562.
United States District Court E. D. South Carolina, Charleston Division.
August 23, 1962.
*561 Arthur G. Howe, G. M. Howe, Jr., George E. Grimball, Jr., Charleston, S. C., for plaintiff.
Terrell L. Glenn, U. S. Atty., Columbia, S. C., Thomas P. Simpson, Asst. U. S. Atty., Charleston, S. C., Louis F. Oberdorfer, Asst. Atty. Gen., Washington, D. C., Edward S. Smith, John F. Murray, Leon W. Vaseliades, Attys., Dept. of Justice, for defendant.
WYCHE, Chief Judge.
This suit was instituted by the plaintiff taxpayer to recover refund of taxes which it alleges the District Director of Internal Revenue erroneously assessed against it in holding that certain of its properties were sold on June 30, 1957, for $1,200,000.00 to Delhi-Taylor Oil Corporation.
The issue is whether the transfer by plaintiff of certain of its properties to Delhi-Taylor Oil Corporation for certain properties transferred by it to plaintiff was a sale resulting in a taxable gain, a non-taxable exchange within the meaning of Section 1031(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 1031(a), or a partial taxable exchange within the meaning of Section 1031(b) of the Internal Revenue Code of 1954.
Plaintiff is a corporation which was formed by and designed to serve a group of independent oil jobbers. It performed its function by owing and providing facilities for the storage of petroleum products. In this connection it owned and operated a deep water terminal in North Charleston, South Carolina. This terminal was ultimately transferred to Delhi-Taylor Oil Corporation and it is this transfer which constitutes the subject matter of this action.
In compliance with Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A., I find the facts specially and state my conclusions of law thereon, in the above cause, as follows:
FINDINGS OF FACT
1. Years prior to the transfer there became available to plaintiff's stockholders and jobbers in the interior an inland source of oil supply on what was called the plantation pipe line. Plaintiff, taking into consideration the cost of transporting oil from Charleston, to the interior, commenced investigating the possibility of acquiring terminal sites along this pipe line and as a result acquired options at Doraville, Georgia; Belton, South Carolina, and Salisbury, North Carolina. While investigating the feasibility of developing these sites plaintiff found that steel with which storage tanks could be built was in short supply and was able to obtain commitments from a steel concern so that the same would be available in the event plaintiff found actual need for the same. There existed at this time an operating terminal at Wilmington, North Carolina, which was owned by Coastal Terminals of North Carolina, a separate and distinct corporation of which plaintiff owned sixty (60%) per cent. of the stock, but which plaintiff hoped in the future to acquire and own outright. Plaintiff lacked the capital to purchase and develop these sites, and the obtaining of options and the other things done in connection therewith, at this time constituted no more than investigation and future corporate planning.
2. With this background, and years later, Delhi-Taylor Oil Corporation contacted plaintiff and expressed an interest in acquiring plaintiff's deep water terminal at North Charleston. After a few days of negotiations, the parties concluded that they could not agree upon a sale. Instead, on May 11, 1957, they entered into an alternative agreement under which they agreed Delhi-Taylor Oil Corporation would acquire the terminal in Wilmington, North Carolina, the sites at Belton, South Carolina; Salisbury, North Carolina, Charlotte, North Carolina, (Doraville, Georgia, later being substituted for Charlotte); improve the same and exchange them with plaintiff for its terminal in Charleston. Thereafter, Delhi-Taylor Oil Corporation acquired and improved these properties, and on July 1, 1957, exchanged them with plaintiff for its terminal in Charleston. Plaintiff's terminal in Charleston consisted *562 of real estate, pipe lines and storage tanks. The four tracts it acquired from Delhi-Taylor Oil Corporation were of like kind, and after receiving them, plaintiff continued in the same business in which it has been engaged, utilizing the four properties for the same purpose for which it had formerly used the single property in North Charleston.
3. Contrary to the Government's contention that the true nature of the transaction was that plaintiff sold to Delhi-Taylor, and that Delhi-Taylor thereafter acted as a mere momentary conduit through whom plaintiff purchased property and passed title and who assumed and liquidated liabilities incurred by plaintiff for the construction of terminals, the evidence compels but the one conclusion that the parties from the inception intended an exchange; that the improvements made by Delhi-Taylor such as the construction of tanks and pipe lines were done by and on behalf of Delhi-Taylor so as to put it in a position to accomplish an exchange; and that an exchange of like properties in fact and in law took place.
4. The substance of the transaction was one in which plaintiff owned a deep water terminal which Delhi-Taylor Oil Corporation wanted to acquire; they were unable to agree upon a sale that as a result of prior corporate investigation and planning, which at the time had no connection with this transaction, plaintiff knew of certain property which it would be willing to accept in exchange for its terminal provided Delhi-Taylor Oil Corporation would acquire and improve the same, and that Delhi-Taylor did acquire and improve the same on its own behalf so that it would be in a position to make an exchange, and that an exchange in fact took place. Plaintiff did not "cash in" and invest the same in another business nor did it receive cash and reinvest the same in like property, but merely exchanged its property with Delhi-Taylor Oil Corporation for like property and continued on as before in its identical business.
CONCLUSIONS OF LAW
1. The court has jurisdiction of the parties and of the subject matter of this action.
2. Section 1002 of the Internal Revenue Code of 1954, provides that upon the sale or exchange of property the entire amount of the gain or loss shall be recognized except as otherwise provided.
3. Section 1031(a) of the Internal Revenue Code of 1954, provides: "No gain or loss shall be recognized if property held for productive use in trade or business or for investment * * * is exchanged solely for property of a like kind to be held either for productive use in trade or business or for investment."
4. The purpose of Section 1031(a) is to save the taxpayer from the immediate recognition of a gain, or to intermit the claim of a loss where as a result of the transaction there has been a mere change in the form of the ownership and the taxpayer has not really cashed in on the theoretical gain or lost out on a losing venture. Portland Oil. Co. v. Commissioner of Internal Revenue, (C.A. 1, 1940) 109 F.2d 479.
5. The realities or substance of the transaction and the intention of the parties govern, and the means employed by them to accomplish an exchange rather than a sale are unimportant. Comm'r. v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; Hamlin's Trust v. Commissioner of Internal Revenue, (C.A. 10, 1954) 209 F.2d 761; Sarkes Tarzian, Inc. v. United States, (C.A. 7, 1957) 240 F.2d 467.
6. This transaction cannot be separated for tax purposes into its component parts. The actual intention of the parties and what was accomplished rather than the separate steps taken govern. Century Electric Co. v. Commissioner of Internal Revenue, (C.A. 8, 1951) 192 F.2d 155.
7. It was entirely proper and lawful for Delhi-Taylor Oil Corporation to bind itself to exchange property it did not own but could acquire in the *563 future. Howell Turpentine Co. v. Commissioner of Internal Revenue, (C.A. 5, 1947) 162 F.2d 319; W. D. Haden Co. v. Commissioner of Internal Revenue, (C.A. 5, 1948) 165 F.2d 588.
8. It is my opinion that the facts in this case compel the conclusion that the substance of the transaction clearly brings it within the provisions of Section 1031(a) of the Internal Revenue Code of 1954.
It has been conceded that in the event plaintiff prevails it would not be entitled to recover the full amount prayed for in the complaint and that the same would require adjustment. Therefore, plaintiff should have judgment against the defendant for the amount now determined by adjustment due it, together with interest thereon, to be calculated by the Treasury Department.
Accordingly, an appropriate order for judgment may be submitted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262907/ | 207 F.Supp. 45 (1962)
HUMBLE OIL & REFINING COMPANY, Libelant,
v.
M/V JOHN E. COON, the BARGE M-65 and the BARGE L-1, their engines, tackle, apparel, etc., and Jackson Marine Company, Inc.; Baton Rouge Coal and Towing Company; Cargo Carriers, Inc.; Aetna Casualty & Surety Company; Eagle Fire Insurance Company of New York; Hartford Fire Insurance Company; Tokio Marine & Fire Insurance Company; John Doe, et al., being Underwriters at Lloyds, Respondents.
No. 5010.
United States District Court E. D. Louisiana, New Orleans Division.
May 25, 1962.
*46 Terriberry, Rault, Carroll, Martinez & Yancey, Walter Carroll, Jr., New Orleans, La., for libelant.
Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., and Taylor, Porter, Brooks, Fuller & Phillips, Tom F. Phillips, Baton Rouge, La., for Cargo Carriers, Inc.
Hinds & Meyer, John K. Meyer, Houston, Tex., and Faris, Leake & Emmett, Francis Emmett, New Orleans, La., for Aetna Casualty & Surety Co., Eagle Fire Insurance Co. of New York, Hartford Fire Insurance Co., Tokio Marine & Fire Insurance Co., and Lloyds.
AINSWORTH, District Judge.
Two questions are presented here for decision: (1) Does this court have jurisdiction of a libel against a foreign insurer with no office, place of business or agent for service of process in Louisiana but which insured a vessel for negligent operation with navigation limits in the policy including the waters of Louisiana; and (2) Can a libelant sue the vessel owner's insurers under the provisions of the Louisiana direct action statute despite *47 the pendency of limitation and exoneration proceedings involving the vessel in a federal district court in Texas?
We answer both questions in the affirmative.
Humble Oil & Refining Company, owner of the tanker Esso Zurich, brought this libel against the M/V John E. Coon, the barges M-65 and L-1, Jackson Marine Company, Inc., a Louisiana corporation, Baton Rouge Coal and Towing Company, a Louisiana corporation, Cargo Carriers, Inc., a Delaware corporation, and named insurers of the M/V Isabel S. Garrett and Bell Marine Service, Inc., a Texas corporation, for damages which occurred on March 31, 1961, in the Mississippi River near Baton Rouge, Louisiana, when the tanker was in a collision with two barges which had become loose from their moorings and drifted, unmanned and unlighted, into the vessel in the early morning hours of that day.
Libelant alleged negligence against the M/V Isabel S. Garrett and Bell Marine Service, Inc., for improperly and insufficiently mooring and lighting the barges, and against the other defendants for their failure to equip the barges with lights and for allowing them to become unmoored and to drift free in the river as a menace to navigation.
Exceptors are the insurers by a combined hull and liability policy of the M/V Isabel S. Garrett and its owner, Bell Marine Service, Inc.
On September 30, 1961, a proceeding for limitation or exoneration from liability was filed on behalf of Bell Marine Service, Inc. in the United States District Court, Southern District of Texas, Houston, Texas. The M/V Isabel S. Garrett at that time was in the jurisdiction of that court.
On November 8, 1961, the present libel in rem and in personam was filed.
I.
Exception by Tokio Marine & Fire Insurance Company, Ltd. to the Court's Jurisdiction Rationae Personae
The basis of this exception is that respondent insurance underwriter transacts no business, has no office or place of business, and has no officer, director, employee or agent authorized to accept service, in this district or in the State of Louisiana.
The question of what constitutes doing business in a state by a foreign corporation has been the subject of much litigation. The trend, however, as indicated by recent United States Supreme Court decisions, is toward a relaxation of the qualifications required to constitute the transacting of business by a foreign corporation in another state to satisfy constitutional due process. In McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), the Supreme Court held that where an insurance contract was delivered by a Texas insurance company in California, premiums were mailed from there, and the insured was a resident of California at time of death, due process did not preclude entry of judgment against the Texas company by a California court. Jurisdiction there was based on a statute subjecting foreign corporations to suit on insurance contracts with residents of that state, even though such companies could not be served with process within its borders, the Texas company having no offices or agents in California and having never solicited or done any insurance business in California apart from the one insurance policy involved. The Court said:
"In a continuing process of evolution this Court accepted and then abandoned `consent,' `doing business,' and `presence' as the standard for measuring the extent of state judicial power over such corporations.
* * * * * *
"Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents. In part this is attributable to the fundamental *48 transformation of our national economy over the years. Today many commercial transactions touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity."
McGee cited with approval International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, in which the court decided that:
"* * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'"
See also Pugh v. Oklahoma Farm Bureau Mutual Insurance Co., D.C., 159 F.Supp. 155 (1958).
The primary question for determination here is whether Tokio Marine & Fire Insurance Company, Ltd., as contemplated by LSA-R.S. 22:1253, is transacting business in Louisiana to an extent where fair play and substantial justice would not be offended in requiring respondent to be governed by the state statute.
The pertinent part of LSA-R.S. 22:1253 provides:
"The transacting of business in this state by a foreign or alien insurer without a certificate of authority or the issuance or delivery by such foreign or alien insurer of a policy or contract of insurance to a citizen of this state or to a resident thereof, or to a corporation authorized to do business therein, is equivalent to an appointment by such insurer of the secretary of state and his * * * successors in office to be the true and lawful attorney upon whom may be served all lawful process in any action, suit or proceeding arising out of such policy or contract of insurance * * *."
It is significant to note that a 1952 amendment substituted the word "or" for "and" following "certificate of authority" in the first sentence of the above-quoted statute, which has the effect of considerably broadening the amenability of foreign corporations to service of process upon the secretary of state in Louisiana.
The insurance policy here under consideration by its terms specifically insured risks and operations in Louisiana and was intended to cover property here. The policy covering the vessel Isabel S. Garrett specifies the navigation limits for the vessel's operations as follows:
"Inland waters of Texas, Louisiana, Mississippi, Alabama and Florida, * * *."
We hold that this was sufficient to constitute transacting of business in Louisiana within the meaning of LSA-R.S. 22:1253. Consequently the corporation is subject to process through the Louisiana Secretary of State, and such process does not violate constitutional due process.
II.
The Libel against the Vessel's Insurers during the Pendency of the Limitation Proceedings in the Texas Federal Court
Exceptors, insurers of the M/V Isabel S. Garrett and Bell Marine Service, Inc., seek dismissal of this action or alternatively a stay of these proceedings until the final disposition of the limitation proceedings on the basis of Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917) and Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, 98 L.Ed. 806 (1954).
*49 The Louisiana direct action statute (LSA-R.S. 22:655) authorizes claimants to sue insurance companies directly under liability insurance policies where the damage complained of occurs within the State's territorial limits. The action may be brought against the insurers alone or against both insured and insurer jointly, at the option of claimant. This direct action statute becomes a part of every contract having effect in Louisiana as though written into each policy. Its constitutionality has been upheld specifically in Watson v. Employers Liability Assurance Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1955).
The limitation proceedings in the Texas Federal Court have enjoined suits against the M/V Isabel S. Garrett and Bell Marine Service, Inc. The vessel and its owner, however, are not parties to the present libel which is against their insurers. The limitation proceedings, therefore, operate only in favor of the owner and the M/V Isabel S. Garrett.
In the Cushing case there was no opinion of the court because of the division which existed between its members at the time of its decision. Five members held that an action would lie under the Louisiana direct action statute against the vessel's insurer, despite the pendency of limitation proceedings. Four other members disagreed. Mr. Justice Clark, of the five who agreed that the direct action statute would apply, broke the deadlock by voting to stay the direct action proceedings until culmination of the limitation proceedings.[1] Thus, the Cushing case, by a majority of the court,[2] held that there was no clash between Louisiana's direct action statute and the limitation of liability statute of the United States (46 U.S.C.A. §§ 181-189).[3]
Nor can we agree with the alternative contention that we should stay these proceedings to await final disposition of the limitation proceedings. Under the alleged facts the M/V Isabel S. Garrett suffered no damage. Therefore, its owner, Bell Marine Service, Inc., has no claim against its insurers for hull damage. The libel here involves an action which occurred in Louisiana waters of the Mississippi River and is against not only the insurers of the M/V Isabel S. Garrett but also against other defendants, including Baton Rouge Towing and Jackson Marine Service, both Louisiana corporations.
As to the facts which might justify a stay order, this case is clearly distinguishable from Cushing where the tow-boat Jane Smith owned by a Louisiana resident operated only in Louisiana waters and the accident happened in Louisiana; all the parties, save one, resided in the State and both the limitation proceedings and the damage suit were pending in the same court before the same judge (347 U.S. 409, 426, 74 S.Ct. 608). *50 Exceptors in their brief contend that these differences render Cushing not applicable on the substantive point as to whether an action may be maintained against the insurers under the Louisiana statute.
But Justice Clark used these facts as grounds only for staying the proceeding, not for holding that Cushing was inapplicable to suits under the Louisiana direct action statute. The facts here are clearly distinguishable from those in Cushing insofar as the question of granting a stay is concerned.
It is clear that libelant wishes to proceed in this court and not in the Texas court. On the other hand, the limitation proceedings were initiated by the owner of the M/V Isabel S. Garrett, who apparently wishes to litigate in Texas. Libelant appeared there to assert its claim, and attempted to transfer those proceedings to this court without success because of the opposition of exceptors, and the subsequent ruling of the district court.
No valid reason can be found for staying these proceedings, which are not against the vessel Isabel S. Garrett or its owner but against their insurers under the Louisiana direct action statute, as well as against other defendants, including two Louisiana corporations.[4]
What we do here does not interfere with the Texas limitation proceedings. But it would nullify the rights of libelant, under the Louisiana direct action statute, to require it to await the outcome of the Texas limitation proceedings which it did not initiate, in which the insurers are not parties, and in which two principal Louisiana defendants could not be reached by process of that court.
The exceptions and the exceptive allegations are, therefore, overruled and the stay order is denied.
NOTES
[1] This accords with Louisiana State Court holdings which authorize institution of direct action suits against insurers regardless of the insured's immunity to liability. Burk v. Massachusetts Bonding Co., 209 La. 495, 24 So.2d 875 (1944); Brooks v. Bass, 184 So. 222, La.App. (Orleans, 1938); Lusk v. United States Fidelity & Guarantee Co., 199 So. 666, La.App. (Orleans, 1941).
[2] Justice Black in the Cushing case, in denying that the Louisiana direct action statute clashes with the federal maritime law, said:
"The uniformity which the Admiralty Clause of the Constitution requires is limited to one indefinitely defined area that involving `the essential features of an exclusive federal jurisdiction.' Just v. Chambers, 312 U.S. 383, 391. [668, 61 S.Ct. 687, 693, 85 L.Ed. 903.] Except in instances falling clearly within this area states are free to make laws relating to maritime affairs. * * * Neither Congress nor this Court has provided or forbidden suits against insurance companies in cases like these, or attempted to establish uniform rules for the regulation of maritime insurance to the exclusion of the states."
[3] See also Lake Tankers Corp. v. Henn, 354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246, 354 U.S. 945, 77 S.Ct. 1421, 1 L.Ed. 2d 1543 (1957).
[4] "It is true that state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system. But this limitation still leaves the States a wide scope." Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L. Ed.2d 368, 359 U.S. 962, 79 S.Ct. 795, 3 L.Ed.2d 769 (1959). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262826/ | 207 F.Supp. 820 (1962)
Brenda EVANS et al., Plaintiffs,
v.
Madeline BUCHANAN et al., Defendants.
Civ. A. Nos. 1816-1822.
United States District Court D. Delaware.
August 29, 1962.
*821 Louis L. Redding, of Redding & Williams, Wilmington, Del., for 19 petitioning children.
Irving Morris, of Cohen & Morris, and Leonard L. Williams, of Redding & Williams, Wilmington, Del., for 9 petitioning children.
Sidney Clark, Wilmington, Del., for the Millside Board.
Januar D. Bove, Jr., Atty. Gen., of the State of Delaware, for the State Board of Education of the State of Delaware.
James M. Tunnell, Jr., and Walter K. Stapleton, of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for the Board of School Trustees of School District No. 47, Rose Hill-Minquadale.
WRIGHT, Chief Judge.
This case raises further problems concerning the mandate of the Supreme Court in Brown v. Board of Education.[1] Petitioners, 9 Negro children, have asked this court to allow them to transfer from the all Negro Dunleith School administered by the Millside School District, to the integrated Rose Hill Elementary School which is under the jurisdiction of the Rose Hill-Minquadale School District, No. 47. Named defendants include the State Board of Education, and the Rose Hill-Minquadale District. The latter has also petitioned this court seeking instructions concerning whether they should allow the 9 children to transfer and whether they should allow 19 Negro students residenced in the Millside District to continue attending the Rose Hill School. A detailed exposition of the facts is necessary to an understanding of the issues posed.
Delaware had, before the decision in Brown, adhered to a strict, segregationist policy. The State laws establishing the separate but equal doctrine for education were declared unconstitutional in 1954,[2] and subsequently, a class action against the State and its Board of Education *822 was brought by Negro children to compel their admission into the public schools of Delaware on a racially nondiscriminatory basis. Summary judgment for the plaintiffs was granted in 1957.[3] In 1959 a proposed plan for integration was submitted to this court for approval and after extensive litigation it was approved in 1961.[4] This court retained jurisdiction of the original cause and the parties in order to ensure the vindication of the plaintiffs' rights, to allow the defendants to petition for temporary relief in the event the plan was placing a great burden on the administration of the school system, and to hear other matters pertaining to the problem of integrating the public schools.[5]
Apart from all this litigation, on October 14, 1954 the State Board ordered the local boards to prepare plans for desegregation to be submitted to the former for its approval. The plan which is the subject of this suit was submitted and approved by the Board in 1955. It is not part of the general plan which received court approval in 1961. Generally, the plan which was drawn up by the Rose Hill-Minquadale District called for its own reorganization; a map showing the final result of it is reproduced below.
*823 Prior to the Brown case and this specific reorganization there were two administrative boards with constituencies of coterminous boundaries. The Dunleith Board (Millside District) had jurisdiction over one school, the Dunleith School, which then served all the Negro children in the Rose Hill-Minquadale area for grades 1-9. The predecessors of the Rose Hill Board had jurisdiction of all the white schools in the district. Thus, it is clear that this specific plan called for the severance of one part of the Rose Hill-Minquadale District and its establishment as a separate district called Millside.
The Dunleith School is all Negro and serves these children for grades 1-9. It has no white students. Dunleith has an all Negro faculty and is administered by a special Board of Trustees.[6] It is in the center of attendance area No. 2 the Millside District in which only Negro families live. It should be noted that the Millside District is quite small in area when compared to the surrounding attendance areas and that the latter areas are all white or primarily all white districts. The white children in areas 1, 3, and 4 go to their respective elementary schools for grades 1-5; then they all go to the Colwyck Jr. High School for grades 6-9. The Colwyck Elementary School is all white; there are some Negroes in the Rose Hill-Minquadale Schools. For grades 10-12 all students, both white and Negro, from the areas denoted 1-4 go to the senior high.
Counsel for the Negro children predicate the right of transfer on the grounds that the Rose Hill Board and the State Board in its approval of the former's plan have acted unconstitutionally. It is argued that the State is compelled by the equal protection clause of the Federal Constitution to provide affirmatively an integrated education. Thus, Delaware must ensure the fact that Negroes go to school with whites; a principle which allegedly has been flagrantly violated in this case. Alternatively, the plan is attacked as a deprivation of Fourteenth Amendment rights on the grounds that the Board failed to consider the integration problem when drawing up the plan. The latter must be irrational, it is argued, because its makers failed to consider the vital, race problem. The usual arguments and proofs are made in favor of constitutionality. Rose Hill Board argues that the sole criteria were the use of facilities, access roads, etc., and that the plan therefore meets the standards of rationality demanded by the applicable constitutional provision.
The court holds that the States do not have an affirmative, constitutional duty to provide an integrated education. The pertinent portion of the Fourteenth Amendment of the United States Constitution reads, "nor [shall any State] deny any person within its jurisdiction the equal protection of the laws." This clause does not contemplate compelling action; rather, it is a prohibition preventing the States from applying their laws unequally.
When interpreting the equal protection clause in the Brown case the Supreme Court held only that a State may not deny any person on account of race the right to attend a public school. Chief Justice Warren, speaking for the court said, "To separate them [Negroes] from others * * * solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."[7] (Emphasis supplied.) The clear implication of this statement is that if races are separated because of *824 geographic or transportation considerations or other similar criteria, it is no concern of the Federal Constitution. Thus, discrimination is forbidden but integration is not compelled.
Counsel has cited cases they assert support the children's position. The court believes otherwise. In the Taylor case,[8] strong factual showings of discrimination were made. In another case,[9] the Fourth Circuit upheld the denial of the district court of 5 Negro children's application for transfer on the grounds that the criteria of residence and academic preparedness were properly applied in the threshold denial by the School Board. Moreover, several lower courts have squarely held that the States have no affirmative duty in this area.[10] This court can only conclude that the present state of the law does not support this position.
In effect, counsel is asking the States to intentionally gerrymander districts which may be rational when viewed by acceptable, nondiscriminatory criteria. The dangers of children unnecessarily crossing streets, the inconvenience of traveling great distances and of overcrowding and other possible consequences of ensuring mixed schools outweigh the deleterious, psychological effects, if any, suffered by Negroes who have not been discriminated against, as such, but who merely live near each other. As with most problems, its cure rests in elimination of its roots. The problems in this case grow out of segregated housing.
The assertion that the Board's failure to consider the racial problem renders the plan unconstitutional must, as a matter of law, be rejected. When carefully analyzed it is apparent that it leads to no different place than the first argument. As a practical matter consideration of a problem is only meaningful when acted upon. The action which such consideration would evoke is affirmative integration. The latter is not constitutionally compelled.
There have been many lower court decisions[11] since the Brown case held children may not be denied entrance to public schools solely on the basis of race. One of the teachings of these cases is that whether Negro children are deprived of their constitutional rights is a question of fact. Criteria such as transportation, geography and access roads are rational bases for establishing pupil attendance areas or designating school districts. If, however, these criteria are merely camouflage and school officials have placed children in particular districts solely because of race, a cause of action under the Constitution exists.
Whether such a case is presented can be fairly and intelligently determined only after a detailed presentation and careful study of all the relevant facts. Detailed exhibits and testimony should be offered demonstrating why a school board chose to draw its lines in the manner it did. What directions, if any, were given by the school board to the persons designated to delineate the attendance areas and all relevant and pertinent discussions by the school board held in conjunction with the formulation of a plan should be presented. Evidence should be *825 offered dealing with location, physical facilities, access roads, modes of transportation, population of particular pupil attendance areas and the white-Negro ratio of both students and teachers.
When it is alleged and uncontroverted as in this case that the children go to an all Negro student and faculty school, administered by a separate Board of Trustees, and surrounded entirely by predominantly white attendance areas, the controlling public attendance area plan is subject to careful scrutiny and the promulgators of the plan should have the duty of justification. The Rose Hill-Minquadale Board as promulgator of the plan and the State Board of Education as the party having the ultimate responsibility for administering a nondiscriminatory system of public education should have the initial burden of coming forward since a presumption of unconstitutionality arises under this set of facts.[12] This presumption principle rests upon a bilateral rationale. First, the basic facts are highly probative of the presumed fact.[13] Secondly, the evidence, in great part, rests in the hands of those who conceived and implemented the plan.
A hearing has been held and proof offered. At best, the evidence presented by the Rose Hill-Minquadale Board as justification for its action and that of the State Board of Education, is inconclusive.[14] The type of showing necessary to rebut the presumption of unconstitutionality has not been made. Thus, in this posture, the court has no other alternative but to decree that the 9 children who have applied for admission to the Rose Hill School this fall be admitted[15] and that the 19 children admitted to the Rose Hill School last fall remain until further order of this court. This, in no way, shall prejudice the right of the Rose Hill-Minquadale Board and the State Board of Education to come forward at any time with additional evidence to justify the present plan of pupil attendance areas as rational and nondiscriminatory.[16] At such a time the court will, of course, consider any rebuttal evidence the involved children may wish to offer. Thereafter, a final decision on the constitutionality of the present plan will be made. If the plan is determined to be nondiscriminatory and therefore constitutionally unassailable, the Negro children will be ordered back to the designated school for their attendance area.[17]
Submit order in accordance herewith.
NOTES
[1] 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
[2] The Delaware case was one of four decided under the Brown heading.
[3] Evans v. Buchanan, 152 F.Supp. 886 (D.Del.1957).
[4] Evans v. Buchanan, 195 F.Supp. 321 (D.Del.1961).
[5] See 195 F.Supp. at 323.
[6] It does not appear from the record whether the Board is composed entirely of Negroes. It is, however, the successor of an all Negro Board and has jurisdiction over an all Negro District. Therefore, it would appear safe to assume that the Millside Board is all Negro.
[7] 347 U.S. at 494, 74 S.Ct. at 691 (1954).
[8] Taylor, et al. v. Board of Education, 191 F.Supp. 181 (S.D.N.Y.), aff'd. 294 F.2d 36 (2 Cir. 1961).
[9] Jones v. School Board of City of Alexandria, 278 F.2d 72 (4 Cir. 1960).
[10] Thompson v. County School Board of Arlington, 204 F.Supp. 620 (E.D.Va. 1962); Briggs v. Elliott, 132 F.Supp. 776 (E.D.S.C.1955). But see Branche v. Board of Education of the Town of Hempstead, 204 F.Supp. 150 (E.D.N.Y. 1962).
[11] See e. g., cases notes 8-10, supra; Sealy v. Department of Public Instruction of Penn., 252 F.2d 898 (3 Cir. 1958); Calhoun v. Members of Bd. of Education, City of Atlanta, 188 F.Supp. 401 (N.D.Ga.1959); Henry v. Godsell, 165 F.Supp. 87 (E.D.Mich.1958); Kelly v. Board of Education of City of Nashville, 159 F.Supp. 272 (M.D.Tenn.1958).
[12] The court does not mean to suggest that a presumption will only arise on this set of facts. The one fact of an all Negro student body might be sufficient to justify the invocation of the presumption. We need not decide that now.
[13] The existence of an all Negro student body and faculty, administered by a separate board and surrounded by white districts on all sides is highly probative of the fact of discrimination.
[14] Basicially, the Board's one witness asserted that only facilities, location and access roads were considered in drawing up the plan. The Board offered little more than that in justification.
[15] Of course, if 200 children applied for transfer, even if the presumption were operative the court might not order transfer as a matter of course.
[16] The court does not feel that a final decision on the merits should be made until the Board has had an opportunity to come forward under the guidelines of this opinion.
[17] Absent compelling reasons the court would make the order effective at the next fall term following its decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262846/ | 207 F.Supp. 376 (1962)
CAPITOL MARKET, LTD., Plaintiff,
v.
UNITED STATES of America and Vaughn W. Evans, District Director of Internal Revenue for the District of Hawaii, Defendants.
Civ. No. 1929.
United States District Court D. Hawaii.
July 13, 1962.
*377 Carlsmith, Carlsmith, Wichman & Case, Honolulu, Hawaii, by H. William Burgess, Honolulu, Hawaii, for plaintiff.
Herman T. F. Lum, U. S. Atty., Dist. of Hawaii, Honolulu, Hawaii, for defendants.
TAVARES, District Judge.
I
NATURE OF CASE
This is an action by plaintiff to recover $16,037.74 paid as income tax and assessed interest for the calendar years 1955 through 1959, together with statutory interest thereon. Jurisdiction is conferred upon this court by Title 28, United States Code, Sections 1340 and 1346(a) (1).
II
THE THEORIES OF THE PARTIES
1. Plaintiff claims that the salaries of $9,600.00 each paid to its two officers for the years 1955 through 1959, inclusive, constitute reasonable compensation for corporate management services rendered and that the salaries are properly deductible as ordinary and necessary business expenses.
2. In addition, plaintiff claims that the automobile expenses and depreciation for the years 1955, 1956 and 1957 are properly allocable as business expenses. As to this second claim, so little emphasis was placed thereon during the trial of this matter, and the showing with respect thereto made by the plaintiffs is so minimal, that the court feels it insufficient to establish the burden of proof incumbent on plaintiff of showing that those particular disallowed automobile expenses and depreciation were reasonable. In fact, this issue was in effect abandoned by plaintiff. Hence the court finds in favor of the defendants as to such automobile expenses and depreciation.
III
THE ADMITTED FACTS
The following facts have been agreed upon by the parties and require no proof:
1. Plaintiff Capitol Market, Ltd., is a corporation incorporated May 12, 1932, under the laws of the State of Hawaii with its principal office and place of business in Honolulu, Hawaii.
*378 2. Vaughn W. Evans is now, and since August 9, 1959, has been, the District Director of Internal Revenue for the District of Honolulu.
3. Mr. Fred W. Mahoney and Mr. James F. Small purchased 100% of the stock of plaintiff corporation in 1946 for $65,000.00. Since then and continuing to the present date, Mr. Mahoney and Mr. Small have each owned 50% of the stock and have served as President and Vice President-Treasurer, respectively, of plaintiff corporation.
4. As officers of the corporation, they were paid $9,600.00 each per year by plaintiff corporation during the years 1955 through 1959, inclusive.
5. Plaintiff filed timely corporate income tax returns for the calendar years 1955, 1956, 1957, 1958 and 1959. The returns reported tax liabilities of $6,316.18, $2,809.47, $688.77, $1,651.27 and $00.00, respectively, and all of said amounts were paid with the returns.
6. In each of the years above mentioned, the District Director made a determination that the compensation for the two officers should be limited to $5,000.00 each and therefore disallowed $4,600.00 of the deduction claimed for each.
7. The deficiency assessments made by the District Director were paid by plaintiff together with interest, as follows:
Year Deficiency Tax Assessed Interest Total
1955 $ 2,749.25 $ 683.06 $ 3,432.31
1956 2,964.76 558.71 3,523.47
1957 2,864.04 408.12 3,272.16
1958 2,760.00 227.70 2,987.70
1959 2,760.00 62.10 2,822.10
__________ _________ __________
$14,094.05 $1,939.69 $16,037.74
8. The amounts indicated in paragraph 7 above for the years 1955 and 1956 were duly paid by plaintiff on May 11, 1960. The amounts so indicated for the years 1957, 1958 and 1959 were duly paid by plaintiff on August 1, 1960.
IV
FINDINGS OF FACT
On the first issue of the reasonableness vel non of the compensation paid to the officers Small and Mahoney, the court's decision is in favor of the plaintiff, for the reasons hereinafter stated.
Both parties have cited Mayson Mfg. Co. v. Commissioner, 6th Cir. 1949, 178 F.2d 115, and it contains perhaps as good a statement as can be found in any one decision outlining the factors and circumstances which should be taken into consideration in determining whether or not, in a given case, the compensation paid by a corporation to its officers is reasonable, so as to be allowable under the statute (§ 162 of the Internal Revenue Code of 1954, 26 U.S.C. § 162). In addition the authorities are all agreed, apparently, that the question is primarily one of fact and that each case must stand upon its own facts and circumstances. This case peculiarly illustrates that rule because neither the government, nor the plaintiff, nor the court, has been able to find any case on all fours with this one.
Besides the admitted facts enumerated supra, which the court, of course, incorporates by reference herein, and following generally the format suggested in the Mayson case supra, the court makes the following findings of fact.
1. Qualifications of Officers: James F. Small, Vice President and Treasurer, holds a Bachelor of Science Degree from the University of California with a major in accounting; after graduation he worked for some time on the staff of Cameron & Johnston, a large accounting firm in Honolulu; from 1934 to 1936 he was in charge of the Field Division of the Bank Examiner, Territory of Hawaii; in 1936 he successfully passed the American Institute of Accounting examination and became a Certified Public Accountant of the Territory of Hawaii; from 1938 to 1946 he was successively in charge of the Internal Audit Division of American Factors, Ltd., one of the major corporations in Hawaii, and then was Assistant in the Tax Department of that corporation, in which position he did special survey work involving investment analysis and other management duties; when he left American Factors in 1946 his annual salary was $10,000 a year plus annual *379 bonuses of over $2,000 and $3,000, or a total of $12,000 to $13,000 a year. His subsequent activities along with Mahoney, hereinafter mentioned, further indicate very high executive qualifications and ability.
Mr. Fred W. Mahoney, President and Secretary of the corporation, was a University of Washington graduate, with a degree in pharmacy; he came to Hawaii in 1936 as an agent and special representative of Wyeth, Inc., a mainland pharmaceutical company working through American Factors, Ltd., a local distributor for Wyeth, Inc.; as such he was responsible for opening up Hawaii as a sales area for Wyeth, Inc. As part of his work he acquired a wide acquaintance among doctors, druggists and related professions and established his ability to plan and carry out successful sales and promotion programs. Mr. Small testified that he had found Mr. Mahoney better equipped than anyone else to talk to the doctors, that he talked their language, and through him they were able to get doctors to come in to their building and to want to stay with them. Mr. Mahoney and Mr. Small demonstrated their promotional and executive ability in the formation of a partnership which purchased two drug stores in succession. When they became associated with Capitol Market, Ltd., in 1946, they were executives of proven standing and ability.
High qualifications of this type are one of the criteria for determining reasonableness of salary. Williams Co. v. Lambert, 51 A.F.T.R. 1728 (1956) affirmed, Williams v. United States, 5 Cir., 245 F. 2d 559 (1957).
In this connection the authorities cited in the plaintiff's Opening Brief at pages 5 to 6 appear to be relevant to support their position. The court agrees that Mr. Small's and Mr. Mahoney's experience with Capitol Market, Ltd., during the nine successful years of operation preceding the tax years here involved, added to their qualifications and value to the corporation. In this connection their credit and ability to obtain very substantial financing for the corporation, as testified to by Mr. Small and Mr. Desmond Stanley, Senior Vice President of First National Bank of Hawaii, further support their qualifications. In this connection it is to be noted that in large financial transactions these two officers lent their personal credit and pledged their personal assets for the benefit of the corporation.
2. Nature, Extent and Scope of Officers' Work: Some of the findings made under the previous subheading also apply to this subheading. In general, Mahoney and Small performed duties and functions ordinarily performed by corporate executives. This included the application of the highest kind of skill, experience and business judgment, including the authority to invest and totally commit the entire assets of the corporation, valued in excess of $600,000 as of the end of 1959; it also included seeking, evaluating and accepting or rejecting other major corporate investments[1] of which a substantial number were testified to by Mr. Small without contradiction; it also included the exercise of judgment in determining whether or not to make major alterations and improvements to the building, two of such major projects being *380 testified to as occurring during the period in question. Such investments as were finally consummated, either during or after the period in question, invariably turned out to be good and added in very substantial amounts to the net assets of the corporation. This, plus other duties and activities testified to by Mr. Small, Mr. Stanley, and Mr. Winstedt indicated the broadest possible range of executive responsibility and judgment, as well as an apparently very high degree of successful planning.
In addition to the general executive activities as testified by Mr. Small, these officers conducted many of the duties that might ordinarily be handled by a full-time manager and other personnel. These included building management services, being in the office the greater part of every working day, and portions of Saturdays, engaging in a law suit which was pending a long time, consideration of a possible reorganization, as stated above, the personal endorsement and assumption of corporate obligations, supervision of the Central Medical Building, billing and collection of rents from tenants, payment of routine bills for maintenance, salaries, etc., payment of various kinds of taxes, maintenance of bank account, ordering repair work and supervising same, supervising major alterations of the building, thereby saving very substantial amounts of architects' and contractors' fees, supervising janitorial services, personally accepting and seeing to complaints and the needs of tenants, soliciting of new tenants, writing their own rental agreements, and in general keeping the building in tip-top condition a condition which this court believes it can judicially notice is most difficult to maintain through agents under absentee ownership; keeping of corporate books of account and other duties in connection with record keeping, corporate correspondence, etc.
This testimony is uncontradicted, and the only testimony the government put on was through an expert in building management who testified to what, in his opinion, a building management concern like his would charge for managing the properties. However, even this expert's testimony as to the cost of ordinary building management services failed to establish comparability with the services actually performed by these officers, which would be very substantially greater than those that would ordinarily be exercised by a building management concern of the type envisioned by Mr. Chaney. Moreover, the testimony of Mr. Chaney, when converted into the cost of some of the special services that would not ordinarily be included in building management, produced a total figure not substantially smaller than the total salaries paid to these two officers. Moreover, it should be remembered that even if the corporation had hired a building management organization to operate the business, it would still be justified in paying a substantial salary to its two top officers they would not be expected to work free. The net impression received by this court from the total testimony was that the government failed to shake the picture of reasonableness proved by plaintiffs' testimony, by the incomplete testimony of one expert incomplete in the sense of not covering the entire field of duties and responsibilities held and performed by the two officers.
3. Size and Complexities of Business: What has been said above also indicates that the size and complexity of the business here was not inconsiderable, notwithstanding Mr. Chaney's, as this court sees it, somewhat unrealistic testimony as applied to this concrete case. This was a business which grew from an investment of $65,000 to over $600,000 in the course of some ten years, in value of assets, and which produced a gross income from 1955 to 1959 ranging from some $63,000 in 1955 to some $82,000 in 1959, and an average yield on the investment for the five years in question as testified to by Mr. Small without contradiction, of 9.06% per year after expenses and income taxes.
4. Comparison of Salaries Paid with Gross Income and Net Income: While this is stated by some of the cases to be *381 one of the factors to be considered in determining the reasonableness or unreasonableness of salaries paid by a corporation, the cases fail to establish any particular percentage of the gross or net as a criterion. However, as this court sees it, bearing in mind the salaries paid to these officers previous to the years in question without objection by the government, and other circumstances mentioned in these findings, including the average net yield after salaries and income taxes, this court believes that the salaries paid have not been shown to be unreasonable.
5. Prevailing General Economic Conditions: So far as the evidence disclosed indicates, the prevailing general economic conditions in Hawaii during the years in question show nothing to indicate unreasonableness of the salaries paid. In this connection this court can take judicial notice of general wage rates prevailing in the community, including wage rates in business and government, from $250 to $400 a month for ordinary stenographers, and from $5,000 to $6,000 a year and more for stevedores. In the face of this type of prevailing compensation rates for ordinary employees, this court finds it difficult to hold that $800 a month for each of two top corporation executives would be excessive. In this case the court might also mention the testimony of an expert called by the plaintiff, Mr. Grant W. Canfield, Manager and Secretary-Treasurer of the Hawaii Employees Council, an expert in the industrial relations field, who testified to statistical and other studies, both nationwide and local, and who testified to the various considerations entering into the determination of rates of pay for corporate executives and others, and who testified to an opinion that the salaries in question were reasonable, even for corporate executives who were not top management, and supported even higher rates for top management. This testimony, which the court finds credible, indicates that the salaries paid to these two executives are well within the range considered reasonable for top corporate executives even of corporations with assets no larger than those of this company.
6. Comparison of Salaries with Distribution to Stockholders: The court finds that while actual distribution to stockholders in the way of dividends during the years in question was not made, there were good sound business reasons for this, including the necessity to make payments on mortgages and obligations of the company incurred in connection with new investments, and the investment of earnings in additional investments during a period of community growth justifying such action.
While such failure to pay dividends, particularly in the case of closely held corporations, is a circumstance calling for careful scrutiny, it is not conclusive. Baltimore Dairy Lunch v. United States (8 Cir. 1956), 231 F.2d 870, 872. The court believes that such scrutiny justifies the inference that the failure to pay dividends was due, not primarily to any desire or attempt to evade corporate taxes, but rather (1) to the justifiable purpose of building up the assets of the corporation in a period when it was reasonable to expect an added growth and (2) to the informal agreement of the officers and stockholders with the mortgagee, Prudential, not to pay dividends until the loan had been paid.
7. Prevailing Rates of Compensation for Comparable Positions and Comparable Concerns: This has already been covered in connection with points numbers 4. and 5. above.
8. Salary Policy as to All Employees: This particular item is probably not particularly pertinent here since there was but one employee other than the two officers, namely the janitor. In this case, however, it should again be noted that the compensation paid to these officers was all they got for their services, without the usual bonuses, stock options, pension rights and other fringe benefits accorded to most directors and corporation executives today as an incentive.
9. In Case of Small Corporations with Limited Number of Officers, the Amounts *382 Paid in Previous Years: It has already been noted above that in previous years this same taxpayer, without objection by the government, paid even higher salaries to its officers. The reduction in salaries was explained without contradiction by Mr. Small as due to an informal agreement with Prudential to reduce them so as to render the taxpayer better able to pay its loan.
10. Presumption as to Actions of Board of Directors: The court agrees with the authorities which hold that the actions of a Board of Directors are normally entitled to a presumption that the salaries fixed are reasonable and proper. Here one does not have to rely upon the presumption, for the proof itself amply justified the reasonableness of the salaries paid under all the circumstances, considering the situation as a whole, which this court has done.
11. Situation Considered as a Whole: As stated above, no one factor is conclusive and this court has carefully considered every item testified to and every factor argued or testified to by either side and has come to the conclusion that the salaries paid are reasonable.
12. Results: This has already been considered above in connection with the other items discussed, which indicate that, notwithstanding the payment of these salaries, the results to the corporation have been eminently favorable. This is a strong factor among others in determining the reasonableness of the compensation under the authorities.
13. Presumption in Favor of Validity of Government's Actions: Some argument has been made by the government as to the presumption in favor of the validity of the actions of the government in determining what is a reasonable allowance for expenses and what is unreasonable. This court has given due consideration to that presumption and finds that it has been amply overcome by affirmative evidence produced by the plaintiffs, which evidence has not been counteracted by the one expert witness produced by the government, but on the contrary has been strengthened by it. In this connection, it might be pointed out that, while there are highly competent experts and other qualified employees in the Internal Revenue Service, for some reason none of them was called as a witness. While it may be true that the presumption in favor of the government's action alone should be sufficient to justify prima facie such governmental action, it seems to this court that, once the taxpayer has produced substantial evidence in favor of such reasonableness, especially in a case involving so difficult and technical a question as this one, some qualified member of the Internal Revenue Staff should be called as a witness to inform the court fully as to the actual reasons which in fact impelled the government to make its findings, rather than to leave the matter to inferences and the argument of counsel only. See Baltimore Dairy Lunch, Inc. v. United States, supra, 231 F.2d 872.
CONCLUSIONS OF LAW
1. Any of the foregoing Findings of Fact which might qualify as Conclusions of Law are hereby adopted as conclusions of law. The court finds for the reasons hereinabove stated, that the salaries paid to the officers Mahoney and Small for the tax years 1955 through 1959, inclusive, were and are reasonable and allowable under Section 162(a) (1) of the Internal Revenue Code of 1954; that the deficiency assessments of additional taxes and interest based on the government's determination of $5,000 per year as the maximum annual compensation allowable to each of these two officers for the years in question were and are erroneous; and that judgment should be entered in favor of the plaintiff and against the defendants for the amounts paid by the plaintiff, together with statutory interest thereon.
2. Upon the second issue, that of the additional assessments based on disallowance of a portion of the automobile expenses and depreciation claimed by plaintiff, for the reasons above stated *383 judgment will be entered in favor of the defendants and against the plaintiff.
ORDER
Let judgment issue in accordance with the foregoing findings of fact and conclusions of law.
NOTES
[1] In this connection the court finds that the corporate business included, not only the management of rental properties and the collection of rents, but also the business of seeking for and making additional investments. This is borne out, not only by the testimony of Mr. Small, but also by the corporate letterhead which always characterized the corporation as "An Investment Company" (Exhibit 1). The government's only attempt to counteract this evidence was the contention that in an earlier informal memorandum letter to Internal Revenue, prepared by a C.P.A. firm, and not by an attorney, no specific claim was made that the corporation was an investment company. This is insufficient to counteract the positive evidence of plaintiff. It does not strike the court as unnatural that an attorney engaged by taxpayer after informal efforts through plaintiff's C.P.A. had failed, should, after further investigation, present additional grounds to support his clients' case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262873/ | 306 A.2d 8 (1973)
STATE of Maine
v.
Timothy W. BURNS.
Supreme Judicial Court of Maine.
June 12, 1973.
*9 Donald H. Marden, Asst. County Atty., Augusta, for plaintiff.
Tom Brand, Limington, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
WEBBER, Justice.
This case comes to us on appeal from a conviction for possession of marijuana. Jury trial was waived below. The single issue presented for our consideration is whether defendant's motion to suppress certain evidence was properly denied. We hold that the motion to suppress should have been granted in part and denied in part, and that the judgment must be set aside since we cannot determine from the record whether or not the Justice below may have relied upon inadmissible evidence.
On March 23, 1972 Captain Welsh of the Augusta police department obtained a valid warrant to conduct a search of the premises of Capitol Billiards, Inc., a business establishment in Augusta.[1] The events surrounding the execution of the search warrant were described by Welsh, sole witness at the hearing below on the motion. At approximately 7:20 P.M. on March 23rd Welsh, accompanied by a number of officers, conducted a "raid" at the billiard parlor. Welsh entered through the front, or south, door and immediately notified the 28 persons present that a search was about to be conducted. He directed everyone present to move up against the west wall.[2] Running down the center of the billiard parlor were three pool tables. Midway along the east wall, on Welsh's right, were some low benches. At the rear, or north, end of the room were pinball machines and *10 about fourteen feet from those machines, in the northeast corner, stood a cigarette vending machine. When the police entered, the defendant, who was known and recognized by Captain Welsh, was standing with two or three other persons midway between the pinball machines and the cigarette machine. Another group of people stood between Welsh and the defendant near the benches. As the occupants of the room complied with the order to move to the west wall, a process consuming about three minutes, Welsh proceeded down the east side of the room. He then observed three clear plastic bags containing a grassy material, two lying on the benches and one on the floor beside a bench. As he continued further, he observed two similar bags protruding from a slot in the cigarette machine. At this point Welsh placed all 28 persons in the pool hall under arrest for knowingly being present where marijuana was kept.[3] Pursuant to this arrest searches were conducted of all 28 individuals. The search of defendant produced from his pants pocket a clear plastic bag containing a small amount of grassy material. After the mass arrest had taken place, Welsh noticed a denim jacket lying on one of the pinball machines. Protruding from the pocket of this jacket, in plain view, were several clear plastic bags containing a grassy material. The jacket was seized and an inventory search of the contents of the jacket pocket produced, in addition to the bags of marijuana, a small prescription vial with defendant's name typed across it. The defendant was subsequently arrested upon a new charge of possession.
At the defendant's trial for possession of marijuana,[4] the State offered in evidence, and the defendant moved to suppress, the marijuana taken from the defendant's pants pocket, the marijuana found in the jacket pocket, the vial and the jacket. After a ruling was made by the Court denying the motion in toto, the defendant stipulated that the vial did belong to him and that the material contained in the plastic bags was indeed marijuana. The State offered no further evidence and rested its case. The defendant offered no evidence and was adjudged guilty by the Justice below.
We hold that the Court below erred in failing to grant defendant's motion to suppress the marijuana taken from defendant's person. The search warrant plays no significant role here since it was at most a warrant to search the premises and not a warrant to search the clothing of customers who might happen to be on the premises at the time of the search. The search of defendant's pants pocket could be justified only if it occurred as incident to a lawful arrest. Indeed, it is precisely on this ground that the State seeks to justify that particular search. In the instant case we have an unusual situation in that the defendant was twice arrested within a short time and we must inquire whether or not the search could be justified as incident to either arrest. Here the search of the pants pocket followed an arrest for knowingly being present where marijuana was kept or deposited, but preceded an arrest substantially contemporaneous therewith for possession.
We need not concern ourselves with the fact that the offenses charged by the officer as the basis of arrest were both misdemeanors.[5] The Legislature has enacted *11 a special statutory provision which has application here. 22 M.R.S.A., Sec. 2383(3) enacted by P.L.1970, Ch. 568 provides:
"Any sheriff, deputy sheriff, municipal or state police officer, if he has probable cause to believe that a violation of this section (dealing with, inter alia, possession and being present where marijuana is kept) has taken place or is taking place, may arrest without a warrant, any person for violation of this section whether or not that violation was committed in his presence." (Emphasis ours)
For our purposes, then, the law applicable to probable cause felony arrests and searches incident thereto is applicable here, this being the practical effect of the quoted statute.
In considering whether probable cause existed to justify the search of defendant's person, we must look only at the information known to the police officers prior thereto. "A search that is substantially contemporaneous with arrest may precede the arrest, so long as there is probable cause to arrest at the outset of the search." (Emphasis ours). People v. Marshall (1968) 69 Cal.2d 51, 69 Cal.Rptr. 585, 591, 442 P.2d 665, 671; United States v. Collins (1971) 142 U.S.App.D.C. 100, 439 F.2d 610, 614; Harlan, J. concurring in Sibron v. State of New York (1968) 392 U.S. 40, 77, 88 S.Ct. 1889, 1909, 20 L. Ed.2d 917.[6]
It is clear from the record that at the time of the search of defendant's person the denim jacket had not yet been inventoried, and thus, at this point in time, no evidence had been uncovered which in any way linked the jacket pocket marijuana to the defendant. There was therefore no probable cause then existing to arrest the defendant for possession. Prior to the search of defendant's person, the officers knew only that several bags of material which they rightly assumed was marijuana were strewn about the billiard parlor in plain view. There is no indication that these bags were exposed to the view of the customers prior to the sudden entry of the police. It is at least probable that the unknown owners of the bags discarded them hastily when the police entered in order to divest themselves of any incriminating evidence. We are satisfied that there then existed no sufficient basis for a reasoned belief by the officers, measuring up to the probable cause standard, that any single designated patron among so many had "known" of the presence of marijuana prior to the entry of the police and the simultaneous restriction on the freedom of movement of those in the hall. There was certainly reason to believe that at least a few of the patrons of the billiard parlor had been in possession of marijuana, perhaps secretly, prior to the entry of the police but this did not justify the mass arrest of the 28 persons present, including the defendant.
Thus far we have emphasized the requirement of knowledge on the part of the defendant with respect to the offense for which he was first arrested. We have not heretofore had occasion to construe the words "kept or deposited," as used in Sec. 2383(2). In Bouchard v. Dirigo Mutual Fire Ins. Co. (1915) 113 Me. 17, 92 A. 899 our Court interpreted the words "kept or used" in a fire insurance policy prohibiting the keeping or using of certain articles on the insured premises. In that case it was held that the word "kept" contemplates more than mere temporary presence. We are satisfied that at the very least the words "kept or deposited" as used in this statute import a more extended presence *12 on the premises than would be provided when a customer merely brings the contraband onto the premises for his own purposes, retaining possession of it when he leaves. In the instant case it would be unreasonable to suppose that the five bags of marijuana had been "kept or deposited" by anyone for any appreciable time in the unlikely places in which they were first observed.[7]
We conclude that there was no probable cause for the first arrest of defendant and the search of defendant's person incidental thereto was illegal. It was therefore error to admit in evidence over objection the results of that search.
Although the search of the defendant's person was unlawful, the seizure of the jacket and the marijuana and vial in the pocket thereof was lawful and those items were properly admitted at trial. Welsh first observed the jacket marijuana, in plain view, while he stood in an area freely open to the public. He would have had a perfect right to be where he was at the time even if he had not had a valid search warrant. The subsequent inventory examination of the jacket produced evidence inferentially constituting indicia of ownership and possession of the jacket and its contents adequate to establish probable cause. On the basis of the evidence in hand, the subsequent rearrest of the defendant on a charge of unlawful possession of the marijuana found in the jacket was justified and lawful.
Even though the evidence which we have held admissible in this case might, when viewed in conjunction with defendant's physical proximity to the jacket, have justified a conviction, we are unable to say, beyond a reasonable doubt, whether the judgment below would have been the same, had the marijuana taken from defendant's person not been admitted in evidence.[8] We cannot overlook the fact that the discovery of marijuana on the defendant's person was direct evidence of possession whereas, since it was never stipulated that the jacket was owned by the defendant, possession of the marijuana in that garment would be proved only if the factfinder first concluded that the presence of the defendant's identifying vial in a jacket lying near where defendant was standing convinced him beyond a reasonable doubt that both the jacket and the marijuana were owned by or at least in the possession of the defendant. We cannot say from this record that evidence of the possession of marijuana taken from defendant's person may not have improperly influenced the Justice below in determining that the marijuana observed in the jacket pocket was in fact possessed by the defendant. Neither can we say with any certainty that the determination of guilt did not rest exclusively upon the inadmissible evidence.
The entry will be
Appeal sustained.
New trial ordered.
All Justices concur.
NOTES
[1] The warrant was properly issued on the basis of an affidavit furnished by Captain Welsh and based upon information supplied by an unnamed informer shown to be reliable. It authorized search of the premises for "illicit drugs, namely LSD-25 (d-Lysergic acid diethylamide), amphetamines or derivatives or compounds, thereof, barbituates, or any other salts, derivatives or compounds thereof, Cannabis, (marijuana) and hypodermic needles and syringes and other paraphernalia * * *."
[2] At some point in the proceedings ages were checked and an undisclosed number of juveniles and females were directed to move up against the east wall under the supervision of two police matrons who were in attendance. This fact has no bearing on the result.
[3] 22 M.R.S.A., Sec. 2383(2) as amended provides: "Whoever, knowingly, is present where Cannabis, * * * is kept or deposited, or whoever is in the company of a person, knowing that said person is in possession of Cannabis, * * * shall be punished * * *."
[4] This was an appeal to the Superior Court from the District Court on a charge of violation of 22 M.R.S.A., Sec. 2383(1) possession of Cannabis.
[5] In State v. Stone (1972-Me.) 294 A.2d 683, 690, 691 we were at some pains to point out the limitations on warrantless searches and seizures in the ordinary misdemeanor situation, which are nevertheless permitted even though a lawful warrantless arrest must be for a misdemeanor committed in the presence of the officer.
[6] Mr. Justice Harlan said, "Of course, the fruits of a search may not be used to justify an arrest to which it is incident, but this means only that probable cause to arrest must precede the search."
[7] Since the mass arrest was for knowingly being present where marijuana is kept or deposited, we have no occasion here to consider what might have been the result if the charge had been based upon the alternative statutory groundbeing in the company of a person, knowing that person to be in possession of marijuana. It suffices to say that mere suspicion as to requisite knowledge will not satisfy the requirement of probable cause.
[8] The Justice below made no findings which might aid us in determining what relative probative weight, if any, he assigned to either (1) the discovery of marijuana on defendant's person, or (2) the discovery of marijuana in the jacket. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262908/ | 306 A.2d 92 (1973)
STATE of Vermont
v.
Verne ADAMS.
No. 116-72.
Supreme Court of Vermont.
June 5, 1973.
*93 M. Jerome Diamond, State's Atty., for the State.
Natt L. Divoll, Jr., Bellows Falls, for defendant.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
DALEY, Justice.
The defendant, Verne Adams, was charged in the District Court of Vermont, Unit No. 6, Windham Circuit, with a violation of 23 V.S.A. § 1201, operating a motor vehicle upon the public highway while under the influence of intoxicating liquor. Trial by jury resulted in a verdict and judgment of guilty. Subsequent to the verdict, the defendant filed a motion to set aside the verdict and a motion for a directed verdict of acquittal. Both motions were denied. The defendant appeals to this Court from the judgment of guilty.
The factual situation is as follows: On March 12, 1972, at about 1:30 a. m., two officers of the Brattleboro Police Department were proceeding in their cruiser to the residence of the wife of an individual who was, at the time, being held at the Brattleboro Police Station. The purpose of the officers' journey was to bring the wife of the individual to the police station where the individual was being held so that she could be with him.
On their way to pick up the wife, the two officers first observed the defendant leaning on a parking meter post near the residence of the wife. After stopping the cruiser, both officers approached the residence and knocked on the door. While waiting for an answer, the officers again observed the defendant approach a parked automobile, open and close the door of that automobile without entering it. The defendant was then observed by the officers lighting a cigarette, in the process of which he nearly fell to the ground. The officers then saw the defendant proceed down the sidewalk in a swaying and staggering manner. Both officers formed the opinion that the defendant was intoxicated.
The wife then answered the officers' knock. The officers, after waiting for her *94 to get dressed, proceeded to return to the police station with her in the cruiser. Immediately after leaving her residence, they again saw the defendant. Thinking that he might return to the automobile and attempt to operate it, the officers parked their cruiser a short distance away at a point where they could see the parked automobile. Within a short period of time, the officers saw the defendant walk directly toward the parked automobile, enter it, and proceed to operate it down the street.
After the defendant's vehicle passed the point where the cruiser was parked, the officers followed for a few hundred yards until it was parked by the defendant at the curb in front of a diner. The defendant alighted from the vehicle and then was confronted by the officers who testified that he was unsteady on his feet, had the odor of alcohol on his breath, his eyes were bloodshot and watery. The defendant was then arrested and charged with the offense of which he was later found guilty. A chemical analysis of his blood test, to which the defendant consented, revealed a blood alcohol content of 0.16 per cent by weight of alcohol in his blood.
At the trial, the defendant testified in his own behalf. He admitted to the consumption of three cans of beer during the evening and two highballs later in the night prior to his arrest at about 1:30 a. m. He denied being under the influence; he further testified that he did not recall seeing the officers prior to his being apprehended and that in his opinion, he was all right at all times material.
By his first ground alleged in his motion to set aside the verdict and for a directed verdict of acquittal, the defendant claims the State was barred and estopped from prosecuting him for the violation of 23 V.S.A. § 1201. The basis of his claim is the allegation of a breach of duty on the part of the complaining officers.
He claims that the officers, having knowledge of his apparently intoxicated condition, became charged with the legal duty of preventing him from operating his motor vehicle instead of secreting themselves and lying in wait to effectuate an arrest for a crime they believed might occur. The actions of the officers and their claimed failure to act is the basis for the estoppel and bar asserted. The claim is one novel to this jurisdiction. None can dispute the premise that prevention of crime is a general duty of all law enforcement officers as stated in the cases relied upon by the defendant in his brief. Such duty is performed constantly in a routine manner by every law enforcement officer patrolling the streets and highways of this State. The defendant, however, has cited to us no authority imposing upon law enforcement officers a duty to apprehend an individual observed in an intoxicated condition so as to prevent him from operating a motor vehicle while in that condition. The conclusion of a duty which the defendant would have us draw is based upon the premise of duty, which under the circumstances shown by the record, is non-existent.
The defendant maintains that the officers had the authority to anticipate the commission of the crime and prevent it before fruition. However, the defendant provides no examples of legitimate law enforcement mechanisms which were permissible to use by the officers in this situation.
In examining the defendant's contention, we first recognize the following quote contained in Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968):
"No right is held more sacred, or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."
This, of course, does not preclude an officer from engaging in non-restraining encounters with citizens. See Terry v. Ohio, supra. However, the authority to arrest *95 and thus restrain the citizen is governed by clearly defined perimeters. A law enforcement officer, of course, has the authority to arrest and seize a person under a valid warrant. Vt. Const. ch. 1, art. 11.
An officer also has the authority to arrest, without warrant, one whom he has reasonable cause to suspect is committing or has committed a felony. State v. Crepeault, 127 Vt. 465, 471, 252 A.2d 534 (1969); In re Huard, 125 Vt. 189, 192, 212 A.2d 640 (1965). An officer can, without warrant, also arrest for a misdemeanor when that misdemeanor for which that person is arrested was committed in the presence of the officer making the arrest. 13 V.S.A. § 5507; see also Kurtz v. Moffitt, 115 U.S. 487, 498-499, 6 S.Ct. 148, 29 L.Ed. 458 (1885).
Such is the rule for a breach of peace, where an officer has the authority to arrest if this misdemeanor is being committed in his presence. State v. Mancini, 91 Vt. 507, 510, 101 A. 581 (1917). However, this offense is unique in that an officer can arrest if he reasonably anticipates it is necessary to prevent a breach of peace. State v. Mancini, supra. In such a situation public policy requires quick action by an officer to be necessary to forestall and prevent violent harm to citizens. Thus, actual physical restraint may be necessarily employed to prevent a breach of peace. State v. Crepeault, supra, 127 Vt. at 471, 252 A.2d 534.
In this case, the defendant appeared to be intoxicated at the time that he was first observed by the officers. However, in order to arrest without warrant for public intoxication, the additional element of disturbing "the public or domestic peace and tranquility" must be present. 7 V.S.A. § 562; State v. Bradbury, 118 Vt. 380, 383, 110 A.2d 710 (1955). There is no showing in the record that a breach of peace was occurring or reasonably anticipated by the officers prior to the defendant's operation of his vehicle.
The defendant speculates as to the consequences as to the officers' failure to restrain him, in that his operation while intoxicated could have caused physical injury or property damage. However, suspicion and speculation are not enough to justify a warrantless arrest. See generally Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).
Therefore, the facts in this case do not establish by what authority the officers would have been operating under by physically restraining the defendant prior to the commission of the offense with which he was charged. Therefore, we cannot subscribe to the defendant's theory that the officers violated a supposed duty in failing to restrain the defendant when no authority was shown for such restraint. Under these circumstances, no public policy justification has been presented to this Court to hold as a matter of law that the State should be estopped from prosecuting the defendant.
The defendant also argues that the lying in wait and the secretion on the part of the officers amounted to entrapment. The elements of entrapment are clearly set forth in State v. Girouard, 130 Vt. 575, 578, 298 A.2d 560 (1972), and State v. Dragon, 130 Vt. 334, 339-340, 292 A.2d 826 (1972). There is no showing that such elements are present here. The defendant takes nothing in his assignments of error dealing with the officers' conduct prior to the defendant's arrest.
As a second ground of his motion to set aside the verdict and for a directed verdict of acquittal, the defendant stated:
"The court charged that if the defendant had a blood alcohol test of over 0.10, he was presumed to be guilty of being under the influence of intoxicating liquor, and that the burden changed to him to prove his innocence, which violates the constitutional presumption of his innocence, and violates his obligations of proof."
*96 During the trial the defendant admitted two of the three elements of the charge; namely, being the operator and the operation of his vehicle upon the public highway at the time and place set forth in the complaint. Thus, the only element remaining for consideration was whether or not he was under the influence of intoxicating liquor.
The defendant also contends in argument before us that the court committed prejudicial error in charging the jury upon the statutory presumption of being under the influence, claiming the presumption created by the result of the blood test under 23 V. S.A. § 1204(a)(3) had been rebutted, therefore had "quit the arena".
The defendant in his trial was entitled to the full effect of the presumption of his innocence and the court being under a duty to charge the effect of the presumption. (see 13 V.S.A. § 6502), it fully complied with such duty. As a result of the presence in his blood of 0.16 per cent by weight of alcohol, he became the subject of a presumption, not of guilt or innocence, but of being under the influence of intoxicating liquor, one of the elements of the offense of which he stood charged. This presumption does not outweigh the presumption of innocence which can only be overcome by proof of guilt beyond a reasonable doubt. The statutory presumption of being under the influence cuts off no defense and does not limit the introduction of any competent evidence on the question of whether or not the defendant was under the influence.
When the presumption is established, it becomes prima facie evidence of the fact in issue thereby shifting to the defendant the burden of going forward with evidence upon the issue.
Being a disputable presumption, it shifts to the party against whom it operates the burden of presenting evidence, and the prima facie case would become the established case if nothing further appears. It points out to the party on whom it lies the duty of going forward with evidence on the fact presumed; and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the office of the presumption is performed and disappears from the arena. State v. Bessette, 130 Vt. 438, 442, 296 A.2d 179 (1972); Larmay v. Van-Etten, 129 Vt. 368, 371, 278 A.2d 736 (1971).
The defendant's contention that the presumption was rebutted is based upon negative evidence contained in the testimony of the police officers that they had not observed any erratic or abnormal operation of the vehicle while they followed it. As stated by Mr. Justice Smith in State v. Bessette, supra, 130 Vt. at 443, 296 A.2d at 182:
"No matter what the opinion of the trial court might have been at the time of trial, or this Court might consider it to be here, as being sufficient to overcome the evidence afforded by the presumption, it was a question of fact for the jury on whether such evidence was sufficient to rebut the evidence of the presumption."
The evidentiary effect of the chemical analysis, blood alcohol test, was properly explained to the jury. The trial court instructed the jury in connection with the presumption that it did not of itself declare guilt or innocence; that it could accept or reject the test result; and that the question of whether or not the respondent was under the influence was one for their determination from the evidence of the blood test and all other evidence received. No error appears.
The defendant also raises the spector of deprivation of due process in the court's charge to the jury in that it presumed the guilt of the defendant and relieved the *97 State from proving guilt beyond a reasonable doubt. This contention is also a novel one to this jurisdiction. However, an identical contention as the defendant's was before the Supreme Court of Arizona in State v. Childress, 78 Ariz. 1, 274 P.2d 333 (1954). In that case, the trial court charged both upon the presumption of innocence and the presumption raised by the introduction of the blood alcohol test evidence. Mr. Justice Udall, writing for the court, held that instructions which told the jury in effect that upon proof (beyond a reasonable doubt) of the fact that there was 0.15 per cent or more by weight of alcohol in the blood of the defendant, the law would presume him to be under the influence of intoxicating liquor.
This presumption did not deprive the defendant of due process by presuming his guilt and relieve the State of proving such guilt beyond a reasonable doubt. Id., 274 P.2d at 335. Mr. Justice Udall further held that there was no conflict between an instruction that upon proof of one fact (in that case and here the blood test results) another fact is presumed and an instruction that the law does not presume the guilt of one accused of a crime. Id., 274 P.2d at 337. We believe this to be the correct statement of the law and so hold.
Finally, our reading of the charge does not lead us to the conclusion that the instructions as given were confusing as the defendant contends. A charge must be taken as a whole and not piecemeal. If as a whole it breathes the true spirit and doctrine of the law and there is no fair ground to say that the jury has been misled, it ought to stand. State v. Bishop, 128 Vt. 221, 230, 260 A.2d 393 (1969). Such is the case here.
Prejudicial error not having been demonstrated, the trial court's ruling denying the motion of the defendant is sustained.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331361/ | 101 Ga. App. 138 (1960)
113 S.E.2d 178
EDWARDS
v.
WASHINGTON NATIONAL INSURANCE COMPANY.
38051.
Court of Appeals of Georgia.
Decided January 28, 1960.
Franklin B. Anderson, for plaintiff in error.
Tindall & Tindall, J. F. Kemp, contra.
TOWNSEND, Judge.
1. Code (Ann.) § 70-301.1 provides in part as follows: "A brief of evidence shall not be required to be filed with any motion for new trial where the assignments of error made in the motion for new trial, or the amended motion for new trial, do not require the consideration by the court of the evidence in said case . . . [and the court] shall only be required to pass upon all questions of law made which do not require a consideration of the evidence in the case, such as disqualification of the judge or jurors, rulings of the court. . . upon the pleadings or motions made in the case which do not require a consideration of the evidence, and like questions, the specifications above being illustrative and not exclusive." In a case falling under the provisions of this statute, a question of law raised by an amendment to the motion for new trial which involves no consideration of evidence must be decided regardless of the absence of the brief of evidence. Stevens v. Wright Contracting Co., 92 Ga. App. 373 (2) (88 S.E.2d 511). The motion for new trial in this case alleges that the judgment rendered was illegal for the reason that the plaintiff, after filing his written demand for jury trial in the Civil Court of Fulton County, later withdrew the same without notice to the defendant or defendant's counsel and submitted the case to a judge of that court without a jury, without the knowledge or consent of defendant or his counsel and in their absence, the case never having appeared on any regularly published calendar. The judgment was taken July 21, 1959, and the first regular default jury calendar would have been at the September term, 1959, some months later. No brief of evidence is necessary in order to decide this question. The argument that this court should apply the rule that, had the *139 evidence in fact presented by the plaintiff demanded a verdict in his favor for the amount sued for the error would be harmless is a fallacious contention, for the reason that the plaintiff, by taking such judgment in the absence of the defendant, precluded him either from opening the default and presenting a defense, or, if he did not wish to open the default, from cross-examining the plaintiff's witnesses and perhaps proving other facts which would have authorized a judgment in favor of the defendant. Accordingly, the trial court did not err in refusing to dismiss the defendant's motion for new trial because no brief of evidence was appended to it.
2. The act of 1935 (Ga. L. 1935, pp. 500, 503) amending the statutes creating the Civil Court of Fulton County (formerly Municipal Court of Atlanta) provides: "A jury trial, once demanded by either party, shall not be waived except by written consent of the opposite party." The plaintiff here having made a demand for jury trial had no right to withdraw the same without the written consent of the defendant, and this is true whether the defendant was in default at the time of the withdrawal of the demand or not. It was still the opposite party, and as such had a right to insist that the processes of the court be conducted in a legal rather than an illegal manner. The trial judge accordingly did not err in granting the motion for a new trial and setting the same for hearing upon the next following jury default calendar.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331384/ | 650 S.E.2d 272 (2007)
MATEEN et al.
v.
DICUS.
No. A05A1372.
Court of Appeals of Georgia.
June 27, 2007.
Reconsideration Denied July 25, 2007.
*273 Suraiya A. Mateen, pro se.
Roohi F. Faiyaz, pro se.
Reema Mohammedi, pro se.
Weinstock & Scavo, Richard J. Capriola, Sharon M. Lewonski, Atlanta, for appellee.
MIKELL, Judge.
In Mateen v. Dicus,[1] the Supreme Court reversed Division 1 of our opinion in this case,[2] holding that we erred in concluding that we lacked jurisdiction to consider two enumerations of error because appellants Suraiya A. Mateen, Roohi Fatima Faiyaz, and Reema Mohammedi failed to include the relevant orders in their notice of appeal. Accordingly, our prior judgment as to Division 1 is vacated, and the judgment of the Supreme Court is made the judgment of this court. The Supreme Court remanded the case with direction that we consider appellants' remaining enumerations on the merits.[3] We do so below.
1. Appellants complain that the trial court erred in adding a party, defendant Amtul Hameed, through publication. Appellants argue that service by publication was unauthorized because "Plaintiffs were very well aware of the party's address." This argument fails for three reasons. First, Hameed is not a party to this appeal, and appellants have no standing to voice a vicarious objection to the sufficiency of service upon another party.[4]
Second, appellants waived the argument by failing to assert it in the trial court. The record reveals that at a motions hearing, the court asked defendant Mateen, "are you here to argue defendant Hameed's motion for . . . insufficiency of service of process?" Mateen replied, "No." The court stated, "Hameed is not [here]. As far as you know, she's in India." Mateen replied, "Yes, sir." It is well established that "one cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided *274 in causing."[5] Appellants have waived any right to complain of the method of service upon Hameed.
Third, appellee Dicus complied with OCGA § 9-11-4(f)(1)(A) in obtaining the order for service by publication. He submitted an affidavit averring that he believed that Hameed resided in India but that he did not know where she could be found. Pursuant to the statute, the trial court may grant an order permitting service by publication if, among other things, the affidavit is proper. In this case, appellants offered no evidence to contradict the affidavit. Thus, the trial court did not err in ordering service by publication upon Hameed.
2. Appellants contend that the trial court erred in refusing to set aside the default judgment entered against them because Dicus's voluntary dismissal with prejudice of defendant John Walrath rendered the default judgment void. Walrath was the attorney who prepared the documents transferring the properties that were the subject of the fraudulent conveyance action. Appellants' contention that a voluntary dismissal with prejudice of an alleged joint tortfeasor renders void the judgment entered against the remaining defendants is not supported by Georgia law. "[A] voluntary dismissal with prejudice constitutes a final disposition of the underlying action only as far as the parties involved in the voluntary dismissal are concerned[.] . . . [T]he effect of a voluntary dismissal does not extend to any party not named therein."[6] Furthermore, pursuant to OCGA § 9-11-54(b), an order "which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties."[7] In the case at bar, the dismissal with prejudice adjudicated the liabilities of only one party. It neither terminated the action nor rendered the default judgment void. The trial court did not err in refusing to set aside the default judgment.
3. All pending motions filed by appellants are denied.
Judgment affirmed.
ANDREWS, P.J., and PHIPPS, J., concur.
NOTES
[1] 281 Ga. 455, 637 S.E.2d 377 (2006).
[2] See Mateen v. Dicus, 275 Ga.App. 742, 743-744(1), 621 S.E.2d 487 (2005).
[3] 281 Ga. at 457, 637 S.E.2d 377. The remainder of our rulings was left undisturbed, and our prior decision is reversed only insofar as it is inconsistent with the Supreme Court's decision.
[4] Phillips v. Phillips, 159 Ga.App. 676, 677(2), 285 S.E.2d 52 (1981). Accord Ueal v. AAA Partners in Adoption, 269 Ga.App. 258, 260(2), 603 S.E.2d 672 (2004).
[5] (Citations and punctuation omitted.) Parlato v. City of Atlanta, 151 Ga.App. 235, 237, 259 S.E.2d 217 (1979).
[6] Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, 272 Ga. 209, 211-212(2), 528 S.E.2d 508 (2000) (voluntary dismissal of employee does not bar vicarious liability of employer for employee's tortious acts unless dismissal is statutorily described as an adjudication on the merits).
[7] See Tanaka v. Pecqueur, 268 Ga.App. 380, 383(5), 601 S.E.2d 830 (2004). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331370/ | 236 S.C. 185 (1960)
113 S.E.2d 748
James W. BYNUM and Etta Bynum, Administrators of the estate of Grace M. Parker, Deceased, Respondents,
v.
Etta M. BYNUM, Elzie M. Brown, Hugh M. Morgan, J. Tyler Morgan, and Grace Morgan Simmons, Respondents, and Mary Marchant Maddock, Appellant.
17633
Supreme Court of South Carolina.
March 31, 1960.
*186 Messrs. Nelson, Mullins & Grier, Frank L. Taylor and James C. Cordell, of Columbia, for Appellant.
Messrs. Boyd, Bruton & Lumpkin and Seigler & Seigler, of Columbia, for Respondents.
March 31, 1960.
MOSS, Justice.
Grace M. Parker, a resident of Richland County, South Carolina, died intestate on November 5, 1957, leaving an estate consisting of real and personal property. She left surviving her no husband, parent, child or lineal descendant, but left a sister of the whole blood, the appellant, Mary Marchant Maddock, and the respondents, Etta M. Bynum and Elzie M. Brown, both sisters of the half blood, and the children of a predeceased brother of the half blood, Hugh M. Morgan, J. Tyler Morgan and Grace Morgan Simmons.
James W. Bynum and Etta Bynum were appointed administrators of the estate of Grace M. Parker and brought this action to determine the validity of certain claims filed against the estate, and to determine who are the heirs at law of Grace M. Parker and entitled to her estate and in what proportions.
All possible claimants of an interest in the estate of Grace M. Parker are parties to this action. The appellant, Mary *187 Marchant Maddock, is a person non compos mentis, and appears in this action by her duly appointed guardian ad litem, and asserts by her answer that she is entitled to inherit from her deceased sister, Grace M. Parker, all of her estate because she is a sister of the whole blood, to the exclusion of her half sisters and the children of her predeceased half brother. The respondents, Etta M. Bynum and Elzie M. Brown have answered the complaint, and assert that they are entitled to share, even though they are sisters of the half blood, in the distribution of the estate of Grace M. Parker. The other respondents, Hugh M. Morgan, J. Tyler Morgan and Grace Morgan Simmons are in default, but the record shows that they accepted service of the summons and petition.
This case was referred to the Master of Richland County for the purpose of taking the testimony and reporting his findings of law and fact. A hearing was duly held and, thereafter, the Master filed his report, holding that under Section 19-52(3) of the 1952 Code of Laws of South Carolina, that Mary Marchant Maddock, the whole blood sister of the intestate, did not take the whole estate to the exclusion of the half blood sisters and the children of a predeceased brother of the half blood. He further held the estate is distributable one-fourth to the respondent Etta M. Bynum, one-fourth to the respondent Elzie M. Brown, one-fourth to the appellant Mary Marchant Maddock, and the remaining one-fourth to be divided in equal shares among the respondents Hugh M. Morgan, J. Tyler Morgan and Grace Morgan Simmons. The appellant, Mary Marchant Maddock, excepted to the report of the Master, asserting that he should have held that all of the estate of the intestate descended to her to the exclusion of her sisters of the half blood and the children of a predeceased brother of the half blood. The exceptions to the report of the Master were heard by the Honorable B.E. Nicholson, Special Judge, and he confirmed the findings and conclusions of the Master and adopted his report as the judgment of the Court The case is before this Court upon *188 timely notice of intention to appeal from the order of the Special Circuit Judge.
The question for determination is where an intestate dies leaving no spouse, child, lineal descendant or ancestors, but leaves a sister of the whole blood, two sisters of the half blood and the children of a predeceased brother of the half blood, does the surviving sister of the whole blood take the entire estate to the exclusion of the sisters of the half blood and the children of the predeceased brother of the half blood, under Section 19-52(3) of the 1952 Code of Laws of South Carolina.
Prior to 1791, estates in South Carolina had been distributed under the English Statute of Distribution, enacted in England in 1670, 22 & 23 Chas. 2, ch. 10, p. 523, which said Statute was made of force and effect in South Carolina in 1712, 2 Stats. 744. On February 19, 1791, 5 Stats. 162, our first Statute of Descent and Distribution was enacted by the General Assembly of this State. In the Act of 1791, Section 4 thereof, which is identical in every respect with Section 19-52(3) of the 1952 Code of Laws of South Carolina, provided:
"(3) If the intestate shall not leave a lineal descendant, father or mother, but shall leave a widow and brothers and sisters or a brother or sister of the whole blood the widow shall be entitled to one moiety of the estate and the brothers and sisters or brother or sister to the other moiety as tenants in common. The children of a deceased brother or sister shall take among them respectively the share which their respective ancestors would have been entitled to had they survived the intestate."
The Act of 1791 was amended by the General Assembly of this State on December 16, 1797, 5 Stats. 304, so that in cases where the intestate left no widow or lineal descendant, the parent would not exclude brothers and sisters. In the case of Kinard v. Moore, 220 S.C. 376, 68 S.E. (2d) 321, 323, this Court adopted the order of the Circuit Judge and approved the following holding:
*189 "In 1797, 5 Stats. [304], the Legislature amended the original statute of 1791 so that in cases where the intestate left no widow or lineal descendant, the parent would not exclude brothers and sisters. Judicial interpretation construed the amending Act as merely a proviso to the clause in the original Act which provided for descent to brothers and sisters of the whole blood where there was no surviving parent of the intestate, and that half blood brothers and sisters were postponed."
In the case of Wren v. Carnes, 4 Desaus. Eq. 405, 4 S.C. Eq. 405, decided in 1813, it appears that Mary S. White died unmarried and intestate leaving her mother, Jane Wren, and a brother and sister of the half blood. The sister of the half blood died unmarried and intestate, leaving her mother and her half brother. The question arose as to whether, under the Act of 1791, as amended by the Act of 1797, the brother of the half blood inherited the estate of the intestate along with the mother. The Trial Court permitted the brother of the half blood to inherit. On appeal, the decree of the Circuit Court was reversed. The Court, after pointing out that the half blood brothers and sisters were postponed one degree to the whole brothers and sisters by the Act of 1791, then concluded that the Act of 1797, using the words "brothers and sisters", did not include brothers and sisters of the half blood, said:
"The counsel for the appellant has observed that in the fourth clause of the Act of 1791 the words brothers and sisters are used twice without any terms of restriction, and that they there mean the whole blood.
"This is so; but they so evidently and appropriately refer to the words immediately preceding in the same clause, `brothers and sisters, or brother and sister of the whole blood,' that the insertion of the words `of the whole blood' afterwards would have been superfluous. * * *
"In every clause of the Act of 1791, in which the children of a brother or sister are provided for, it is the children of a brother or sister of the whole blood. Whatever construction *190 shall be put upon the words brother and sister in the proviso, must be put upon the same words in the clause of the Act of 1797, to which the proviso is attached, there being no repugnance between them. If then, the expression brothers and sisters or brother and sister in the clause, comprehends the half as well as the whole blood, the issue of a brother of the half blood is put upon a footing with a brother of the whole blood, which would reverse the situation in which they are placed by the Act of 1791, for by that Act, the children of a brother of the whole blood, take with a brother of the half blood. Many absurd consequences would follow from this construction in favor of the half blood, and we cannot shut our eyes to them. If the meaning of a statute be doubtful, the consequences are to be considered in the construction, and if in this case we say that the legislature intended brothers and sisters of the half, as well as of the whole blood, we shall be bound to say so in every other case which may occur.
"It is said, that under our old act of distribution, brothers and sisters of the half blood were let in equally with brothers and sisters of the whole blood; but the manner of computing the degrees of kindred is prescribed by the act of 1791, and the issue of the brother of the whole, is expressly put on a footing with a brother of the half blood. The act of 1797 refers to the act of 1791, and relates to the same subject. Now all acts that relate to the same subject, must be taken to be one system and construed consistently.
"The general words brothers and sisters are certainly broad enough to include brothers and sisters of the half blood; but the act of 1797, is open to two constructions, one consistent, and the other inconsistent with the act of 1791. I am bound, I think, to adopt the former. This view of the subject appears to me to be warranted by sound principles of construction, and consistent, too, with the object of the act of 1797."
In the case of Lawson v. Perdriaux, 1 McCord 456, 12 S.C.L. 456, decided in 1821, it appears that Francis Lawson died intestate and the question for determination was whether *191 his mother would take the whole of his estate as his only heir, or whether his half brother should take half of the estate. The court reaffirmed what had been said in the case of Wren v. Carnes, supra, and said:
"By the act for the abolition of the rights of primogeniture, passed in 1791, brothers and sisters of the half blood are excluded from the estate of the intestate, who has left also a brother or sister of the whole blood. And brothers and sisters of the whole blood are in like manner excluded, when the intestate leaves a father or mother. By the same act, the issue of a brother or sister of the half blood can take only under the general provision for the `next of kin' and not by representation. By the act of 1791 then, the mother of the intestate Francis Lawson, would have taken the whole estate, even if the intestate had left a brother or sister of the whole blood; and a brother or sister of the whole blood, had there been no parent surviving, would have taken the whole in exclusion of brothers and sisters of the half blood."
The Court then discusses the effect of the amendment of the Act of 1791 by the Act of 1797, and said:
"Now what is the evil complained of? Not surely that parents took in exclusion of brothers and sisters of the half blood, for these were postponed not only to parents, but to brothers and sisters of the whole blood, and were ranked only with the issue of such brothers or sisters. Two distinct classes of kindred, i. e. (1) parents (2) brothers and sisters of the whole blood, stood, not together, but in succession, to exclude brothers and sisters of the half blood, under the act of 1791. It would seem then that the evil complained of was that parents took in exclusion of brothers and sisters of the whole blood, and it follows that the amendment desired was that parents should no longer take in exclusion of them. In construing then the act of 1797, which is called an act to amend, &c., we are to limit the construction by the amendment desired, so as to render the remedy introduced adequate to the evil complained of; but no more than adequate, *192 unless the terms used plainly require a more comprehensive interpretation. * * *
The strict import of the words used conspires then with the apparent object which led to the act of 1797, to confine the meaning of brothers and sisters to those of the whole blood. * * * Now the act of 1791 not only gives the whole estate to the brothers and sisters of the whole blood in exclusion of those of the half blood, and to parents in exclusion of both, but confines the right of taking by representation among collateral kindred to the issue of brothers and sisters of the whole blood. But if in the act of 1797, `brothers and sisters' comprehend both those of the whole and half blood, then not only would brothers of the whole and half blood and parents be placed upon the same footing, and constitute but one class instead of three, but by the proviso quoted, the issue of the brother of the half blood would be made to take by representation or per stirpes, equally with the issue of the brother of the whole blood. Such a change of the rules of the act of 1791, should be imperatively ordered before being adopted; else we might by construction introduce new principles into that act, which is to be regarded as the context of the act of 1797, and with which, the latter should be rendered consistent, wherever it does not expressly amend or alter the former. * * * The brother of the half blood is therefore by no construction to be placed upon a footing with those of the whole blood."
In the case of Ex parte Mays, 2 Rich. L. 61, 31 S.C.L. 61, it was said:
"In Wren & wife v. Carnes, 4 Des. 405, it was held, on the provisions both of the Act of '91 and the amendatory Act of 1797, 5 Stat. 304, that the words, brothers and sisters used in both Acts, meant brothers and sisters of the whole blood, and excluded brothers and sisters of the half blood. * * *"
In the case of Hagermeyer v. City Council of Charleston, 12 S.C. Eq. (Riley Eq.) 117, decided in 1837, it appears *193 that one Joseph Clarke died intestate in 1822, and no claim having been interposed on the part of the next of kin, it was supposed that the estate, which was entirely personal, had escheated, and an order of escheat was issued and the funds in the hands of the administrators of said estate were paid over to the City Council of Charleston. In 1834 an action was instituted and in said action it was found as a fact that at the time of the death of the intestate Clarke, his next of kin was Maria Agnes Retmeyer, a sister of the whole blood, and Margaret Theresa Frantz, also a sister of the whole blood; and Maria Theresa Brandis and John Christopher Brandis, children of Elizabeth Brandis, a predeceased sister of the whole blood; and Clara Hagermeyer and one Mrs. Liesenburg, sisters of the half blood of the intestate. Chancellor DeSaussure held that by the Act of Distributions, sisters of the half blood are not permitted to take, while there are sisters of the whole blood. He said:
"* * * If no brother or sister of the whole blood had survived the intestate, these sisters of the half blood would have been placed on a footing with the children of Mrs. Brandis, who was a sister of the whole blood; but by the Act of Distribution, they are not permitted to take, while there are sisters of the whole blood; and as the rights of the parties were fixed at the death of the intestate, the estate is distributable into three parts; one to the administrator of Mrs. Retmeyer, one to the administrator of Mrs. Frantz, and one is again divisible between the two children of Mrs. Brandis."
The report of the Master in this case states, with reference to the Hagermeyer case, supra, that: "The opinion, unfortunately, does not quote tha text of the statute in effect. Apparently, it was somewhat different from the present statute, * *" Our research convinces us that at the time of the decision in the Hagermeyer case, the Act of 1791, as amended by the Act of 1797, was in force and effect, and that Section 19-52(3) of the Code, which the Master says is applicable, was identical with the statute which was in effect at the time the Hagermeyer case was decided.
*194 It also appears that on December 16, 1851, the General Assembly of this State, by an Amending Act, 12 Stats. 73, set forth how the Act of 1797 was to be interpreted. This Amending Act, after reciting the provisions of the 1797 Act, provided:
"Be it enacted. That brothers and sisters, in the said Act mentioned, shall be taken and understood, and they are hereby declared to be, brothers and sisters of the whole blood."
It is our opinion that the 1851 Act was merely declaratory of the decisions of the Court which had previously construed the 1797 amendment in conjunction with the original Act of 1791, to the effect that the Amending Act of 1797, when specifying brothers and sisters, meant brothers and sisters of the whole blood. Wren v. Carnes, supra; Lawson v. Perdriaux, supra; and Ex parte Mays, supra. See also in this connection the case of Felder v. Felder, 5 Rich. Eq. 509, 26 S.C. Eq. 509.
The case of Kinard v. Moore, 220 S.C. 376, 68 S.E. (2d) 321, is not applicable. The reason such case is not applicable is that there was a different factual situation and the construction of a different section of the Code was involved. 19-52(6).
We call attention to two interesting articles on Descent and Distribution in South Carolina, appearing in Vol. 8, page 48, and Vol. 9, page 3, of the Year Book of the Selden Society.
We conclude that under Section 19-52(3) of the 1952 Code of Laws of South Carolina, and the cases which have construed such Section, that the appellant, Mary Marchant Maddock, being a sister of the whole blood of the intestate, inherited the entire estate, to the exclusion of the two sisters of the half blood and the children of the predeceased brother of the half blood.
The order of the lower Court confirming the report of the Master is reversed, and this case remanded to the lower *195 Court for the purpose of entering an order directing the administrators of the estate of Grace M. Parker, deceased, to distribute the entire estate to the appellant, Mary Marchant Maddock.
Reversed and remanded.
STUKES, C.J., and TAYLOR, OXNER and LEGGE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331436/ | 215 Ga. 764 (1960)
113 S.E.2d 443
AMMONS
v.
CENTRAL OF GEORGIA RAILWAY COMPANY.
20711.
Supreme Court of Georgia.
Argued January 12, 1960.
Decided March 15, 1960.
Henry M. Henderson, for plaintiff in error.
Walter C. Scott, Jr., B. D. Murphy, Powell, Goldstein, Frazer & Murphy, contra.
HAWKINS, Justice.
Daniel Landers brought his petition against Central of Georgia Railway Company and others to enjoin the prosecution by the railway company of a condemnation proceeding to acquire a right of way across described land of the plaintiff, upon which land was located a portion of the residence occupied by the present plaintiff in error, Lula P. Ammons, as tenant of the plaintiff, and to enjoin the defendant from entering upon or interfering with the plaintiff's enjoyment of the same in any manner. To this petition the defendant railway company filed its answer and cross-bill, in which it made certain allegations with respect to the previous litigation between the parties; alleged that it had prosecuted *765 its condemnation proceeding against the plaintiff to a conclusion; had tendered to the plaintiff the amount of the award therein, which had been refused; and that it had paid the amount of the award into the registry of the court; that the plaintiff and a person who occupied a house located in part upon the premises had interfered with the company's servants and employees in the preparation for the construction of a track over the right of way, and prayed that the plaintiff, his agents, servants, tenants, and employees be temporarily restrained and permanently enjoined from in any wise interfering with the company's servants, agents, and employees in the construction of the spur track over said right of way, and necessary activities precedent thereto; and that the tenant, whose name was unknown and was therein referred to as Jane Doe, be served and made a party to said proceeding. Upon the presentation of this answer and cross-bill, the trial judge entered an order as follows:
"The foregoing amendment and cross-petition read and considered the same is allowed and ordered filed subject to objection and demurrer. Let the plaintiff, Daniel Landers, show cause on the 25 day of Sept. 1959 why the prayers of the cross-petition should not be granted. Pending the hearing and until the further order of this court, the plaintiff, Daniel Landers, his agents, servants, tenants and employees, each and all are enjoined and restrained as prayed. Let the tenant of Daniel Landers referred to in the petition be served with a copy of the amendment and cross-petition and let her show cause on the above stated date why she should not be made a party to this proceeding."
To this order Lula P. Ammons, the plaintiff's tenant, excepts upon the ground that it is contrary to law; that it is in effect a temporary injunction granted ex parte, for that it specifies no time and place (only a date) for a hearing to be had; that it calls upon the plaintiff in error to show cause only why she should not be made a party to the proceeding; that it enjoins and restrains the administration of the criminal laws; that it purports to accomplish by injunctive relief the dispossession and eviction of the plaintiff in error, and the placing in possession of the railway company with respect to the real property described; and was not authorized by the allegations and prayers of the pleadings upon which it was issued. Held:
1. This order, entered on September 2, 1959, which restrained the parties only pending a hearing to be held on September 25, *766 1959, a date fixed by the order, and until the further order of the court, was the mere grant of an ex parte restraining order in advance of the time set for the hearing of the application for temporary injunction, and is not reviewable. Grizzel v. Grizzel, 188 Ga. 418 (3 S.E.2d 649).
2. It appears from the record in Case No. 20758, Ammons v. Central of Georgia Railway Company, which is now before this court, and of which we may take judicial cognizance (Baker v. City of Atlanta, 211 Ga. 34, 35 (3), 83 S.E.2d 682), that, following the order here complained of, Lula P. Ammons voluntarily became a party to said proceeding by filing her answer to the railway company's cross-petition, and her cross-action against the railway company seeking injunctive relief, on September 18, 1959, and it is to the judgment of the trial court entered after a hearing thereon to which she excepts in that case. The question of whether the plaintiff in error was made a party to the proceeding without a hearing by the order here excepted to is therefore moot.
Writ of error dismissed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2432467/ | 456 S.W.2d 387 (1970)
Ella Dora SPRINKLE, Appellant,
v.
The STATE of Texas, Appellee.
No. 42991.
Court of Criminal Appeals of Texas.
July 8, 1970.
*388 Kenneth E. Blassingame, Dallas (on appeal only), for appellant.
Henry Wade, Dist. Atty., Harry J. Schulz, Jr., W. T. Westmoreland, Jr., Edgar A. Mason and John B. Tolle, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
The offense is felony theft with the punishment assessed by the court at two years.
Appellant waived her right to trial by jury and entered a plea of guilty before the court. She waived the confrontation of witnesses. The stipulated testimony was that if Paul E. McManus, the alleged injured party, were present he would testify that he was manager of a business house on Gaston Avenue and that he saw the appellant take a suit of clothing of the value of $120.00 from a display rack and leave the store without paying for it and that the suit was taken without his consent.
Further, the testimony of J. L. Chadwick was to the effect that he was a member of the Dallas Police Department and that he stopped the appellant in an automobile on the day in question and saw a man's suit which was identified by Paul McManus as the suit that had been stolen.
The appellant was sworn and testified that she was the person charged in the indictment and that she had waived her right to trial by jury. She testified that she heard the testimony read into the record by the prosecutor and that it was substantially true and correct.
The sole contention is that the evidence is insufficient to support the conviction.
The judicial admission by the appellant is sufficient to support the conviction under Article 1.15, Vernon's Ann.C.C.P. Fierro v. State, Tex.Cr.App., 437 S.W.2d 833. See Ex parte Keener, 166 Tex. Crim. 326, 314 S.W.2d 93.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262909/ | 84 Cal.Rptr.2d 151 (1999)
71 Cal.App.4th 831
Annie Louise JONES, Plaintiff and Respondent,
v.
ADAMS FINANCIAL SERVICES et al., Defendants and Appellants.
No. B122159.
Court of Appeal, Second District, Division Seven.
April 27, 1999.
*152 Law Offices of Steven Gourley, Steven Gourley and David M. Gillen, Los Angeles, for Defendants and Appellants.
Bet Tzedek Legal Services, Manuel Duran and Benjamin Diehl for Plaintiff and Respondent.
JOHNSON, J.
This is an appeal from the trial court's order denying a petition to compel arbitration in an action to cancel a note and deed of trust based on fraud in the execution. Appellants also contend the trial court erred in refusing their request for a statement of decision. We affirm the trial court's rulings.
FACTS AND PROCEEDINGS BELOW
Plaintiff Annie Louise Jones brought this action against several defendants, including Adams Financial Services, a loan broker, its president Antonio Santillan, and the Schiff Family Revocable Trust and its trustees who made the loan which is the subject to this action. We state the facts in the light most favorable to the trial court's order.
*153 Plaintiff Annie Louise Jones is a 79-year-old woman who at all times material to this case was legally blind and suffered from dementia and hypothyroidism. Her income consists of Social Security benefits and a small pension totaling $819 a month.
In April 1996, Ms. Jones received an unsolicited visit at her home from a woman named Mary Johnson. Johnson told Ms. Jones she "helped senior citizens get reverse mortgages." Ms. Jones told Johnson she did not want a "reverse" mortgage or any other type of mortgage. Nevertheless Johnson continued to call on Ms. Jones over the next few weeks, bringing her fruit, and discussing subjects other than the mortgage. Gradually Johnson gained Ms. Jones' trust and friendship. In the course of these visits Johnson saw that Ms. Jones could not read without the aid of a magnifying glass.
In late April or early May of 1996, Johnson convinced Ms. Jones to accompany her to the office of defendant Adams Financial Services just to "talk to someone about reverse mortgages." Ms. Jones continued to insist she was not interested in a mortgage.
At Adams Financial Services Johnson introduced Ms. Jones to defendant Miguel Santillan, who told her he was going to help her get a reverse mortgage. Ms. Jones repeated what she had told Johnson: she was not interested in a "reverse" mortgage or any kind of mortgage. Nevertheless, Santillan produced "a lot of papers" and asked Ms. Jones to initial them. Ms. Jones did not have her magnifying glass with her and could not read the papers Santillan gave her. All she could see were "blurry lines." She asked what the papers were and Johnson told her they were just for the purpose of finding out what the payoff was on her current mortgage. Trusting Johnson, Ms. Jones placed her initials where Santillan and Johnson told her to. She does not remember placing her signature on any of the papers but remembers "initialing a lot."
Approximately a month later, Miguel Santillan and his father, defendant Antonio Santillan, came to Ms. Jones house demanding payment on the loan she had received and threatening to foreclose on her home if she didn't pay. Ms. Jones told them she never took a loan from them. According to defendants, however, in May 1996 Ms. Jones, took out a $50,000 loan secured by a deed of trust on her home. The record shows this loan was for five years at an interest rate of 12.75 percent. The payments were $531.25 per month, interest only, with a balloon payment of $50,531 due on July 1, 2001. For arranging this loan, Ms. Jones paid Adams Financial Services a $6,000 commission and paid Mary Johnson a $2,000 commission.[1]
When Ms. Jones' niece, Phyllis Tisdale, heard about the pending foreclosure on her aunt's home she went to Adams Financial Services and asked Antonio and Miguel Santillan "how they could have made a loan to [Ms. Jones] when she could not see properly and was mentally impaired." Miguel Santillan responded, "All we did was move her hand to show her where to sign and initial."
Subsequently, the trustee on the deed of trust allegedly signed by Ms. Jones recorded a notice of default and notice of trustee's sale. Legal Aid attorneys representing Ms. Jones filed this action to cancel the note and deed of trust and obtained a preliminary injunction against the foreclosure sale.
Defendants petitioned for an order compelling arbitration on the ground that in the process of applying for the loan Ms. Jones contractually agreed to submit all disputes arising out of or relating to the loan to binding arbitration. Ms. Jones opposed the petition on the ground she was defrauded into executing the loan documents including the arbitration agreement.
After reading and considering the parties' declarations, which conflict in some material respects, the trial court found Ms. Jones had "adequately carried" her burden of showing fraud in the execution of the loan documents and denied the defendants' petition to compel arbitration. Defendants subsequently moved *154 for a statement of decision which the trial court denied as untimely. Defendants filed an appeal from the order denying their petition to compel arbitration. (Code Civ. Proc., § 1294, subd. (a).)
DISCUSSION
I. Substantial Evidence Supports Denial of the Petition to Compel Arbitration.
Where "the fraud goes to the inception or execution of the agreement, so that the promisor is deceived as to the nature of his act, and actually does not know what he is signing, or does not intend to enter into a contract at all, mutual assent is lacking, and [the contract] is void.... [C]laims of fraud in the execution of the entire agreement are not arbitrable under either state or federal law." (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 415, 416, 58 Cal.Rptr.2d 875, 926 P.2d 1061; [internal quotes and italics omitted].)
Ms. Jones contends defendants tricked her into signing the loan documents by telling her she was merely authorizing them to obtain the payoff on her existing mortgage. Defendants contend the evidence is insufficient to prove fraud in the execution and thereby defeat defendants' petition to compel arbitration.
Although the declarations submitted by the parties contain sharp conflicts as to the circumstances surrounding Ms. Jones' execution of the loan documents, nevertheless, defendants do not seek reversal on the ground the trial court abused its discretion in failing to take oral testimony and to subject the witnesses to cross-examination. (Cf. Rosenthal, supra, 14 Cal.4th at p. 414, 58 Cal. Rptr.2d 875, 926 P.2d 1061.) Instead, defendants argue that even if the declarations on behalf of Ms. Jones are taken at face value she has failed to prove by a preponderance of the evidence the loan documents are void for fraud in their execution.
Defendants contend it was Mary Johnson, not they, who misrepresented the nature of the documents Ms. Jones signed. And, because there is no evidence Johnson was an agent of defendants, they cannot be held liable for her conduct.
Ms. Jones' declaration states in relevant part:
"One of the times Mary Johnson took me to Adams Financial Services, I met a man named Miguel Santillan. He told me that he was going to help me get a reverse mortgage. I told him that I did not want to get a reverse mortgage or any mortgage.
"Miguel Santillan did not listen to me. He brought out a lot of papers. He wanted me to initial many papers. I asked what the documents were because I could not read the papers. Mary Johnson said that they were needed to get the payoff of the `Home Budget loan.' I trusted Mary Johnson so I initialed where they told me to initial."
In addition, Phyllis Tisdale stated in her declaration Miguel Santillan admitted he and Johnson moved Ms. Jones' hand on the documents to show her where to sign and initial.
It is undisputed Miguel Santillan was a loan officer employed by Adams Financial Services and that he was acting as an agent of Adams Financial Services in processing the subject loan. The trial court could draw a reasonable inference from the Jones and Ms. Tisdale declarations that Miguel Santillan was present when Johnson falsely told Ms. Jones the loan documents were merely papers necessary to obtain the payoff on her current mortgage and, further, that he not only did nothing to correct this false statement but actually assisted Johnson in placing Ms. Jones' signature on the documents. Therefore, the court could find defendants' agent, Miguel Santillan, participated in the fraudulent execution of the documents.
Defendants next argue Ms. Jones is not strictly entitled to void the loan contract for fraud in the execution even if defendants did misrepresent the nature of the documents she was signing. The rule in California, as clarified by the Supreme Court in Rosenthal, is that fraud in the execution does not render a written contract void where the defrauded party has a reasonable opportunity to discover the real terms of the contract *155 before signing it. (14 Cal.4th at pp. 419-420, 423, 58 Cal.Rptr.2d 875, 926 P.2d 1061.) Therefore, "one party's unreasonable reliance on the other's misrepresentations, resulting in a failure to read a written agreement before signing it, is an insufficient basis under the doctrine of fraud in the execution, for permitting that party to avoid an arbitration agreement contained in the contract." (Id at p. 423, 58 Cal.Rptr.2d 875, 926 P.2d 1061; italics in original.)
A party does not have "a reasonable opportunity" to discover the true nature of the writing if the party is prevented from doing so by some physical or other impairment. In Rosenthal, for example, two plaintiffs declared they were unable to read the documents presented to them because they knew very little English and one declared she could not read the documents because she was legally blind. The court held these facts, assuming they were true, deprived the plaintiffs "of a reasonable opportunity to learn the character and essential terms of the documents they signed" and "would suffice to establish reasonable reliance for purposes of showing fraud in the execution of the agreement." (20 Cal.4th at pp. 427-429, 83 Cal.Rptr.2d 533, 973 P.2d 512.)
Ms. Jones' declaration states she could not read the documents presented to her for her signature because she did not have her magnifying glass with her. Other declarations submitted on her behalf show she was legally blind[2] and suffered from "dementia of the Alzheimer's type ... of sufficient magnitude to compromise her ability to handle her own financial affairs." The present case is factually similar to Gardner v. Rubin (1957) 149 Cal.App.2d 368, 308 P.2d 892 and to Rosenthal, supra.
In Gardner, an elderly couple successfully brought an action to cancel a note and trust deed on the ground of fraud in the execution of these instruments. Plaintiffs were told the documents they were signing were "credit references" and plaintiffs believed this was true. (149 Cal.App.2d at p. 371, 308 P.2d 892.) In rejecting the defendant's argument the plaintiffs were negligent in not reading the documents before they signed them, the Court of Appeal held it was reasonable for the trial court to infer from the evidence "that Mr. Gardner could neither read nor understand these papers in view of his limited education, business experience and physical condition. While Mrs. Gardner could read, she was wholly unfamiliar with the nature of a promissory note or trust deed." (Id. at p. 375, 308 P.2d 892.) The court also noted at the time the Gardners signed the note and deed of trust, they were alone with the loan agent "[s]o the plaintiffs did not have anyone to consult as to the character of these documents." (Ibid.)
Like Mr. Gardner, Ms. Jones suffered from physical and mental impairments which prevented her from reading the documents, and like the Gardners, Ms. Jones was alone with the loan agents when she signed the documents she believed were simply payoff inquiries. It could be argued that, unlike Ms. Gardner, Ms. Jones was familiar with the nature of a promissory note and trust deed since she already had a mortgage on her home. But this knowledge, assuming she had it, was useless if she could not see the documents well enough to determine their true nature. Furthermore, Ms. Jones' home was purchased when her husband was still alive so it cannot be presumed Ms. Jones herself had any familiarity with promissory notes and deeds of trust.
In Rosenthal, plaintiff Rosen submitted a declaration stating she was legally blind and this fact was known to defendant's agent, Ferlini, when he falsely represented to her she was merely signing a "signature card" for an FDIC-insured deposit account at Great Western Bank. In fact Rosen signed documents investing her money in an uninsured mutual fund operated by a separate entity, Great Western Financial Securities Corporation. Because Rosen could not read the documents, the agent guided her hand to the places where he wanted her to sign including an arbitration clause. Ms. Rosen's *156 sister joined her while she was signing the documents and the agent told the sister Ms. Rosen was just signing a signature card to open a new account. (14 Cal.4th at p. 429, 58 Cal.Rptr.2d 875, 926 P.2d 1061.) The Supreme Court held: "In light of Rosen's prior relationship with [Great Western Bank], by whom she thought Ferlini was employed, her warnings to Ferlini that she could not read the documents, [and] Ferlini's assurances ... [she] was only signing a `signature card,' Rosen's failure to take additional steps to learn the contents of the written agreement would not have been negligent. [Defendant's] asserted fraud would have deprived her of a reasonable opportunity to learn the character and essential terms of the documents she signed." (Ibid.)
Like Ms. Rosen, Ms. Jones was legally blind when she signed the documents, and this fact was known to Miguel Santillan, who guided her hand to the places where she was to sign. Although the court mentioned Ms. Rosen's prior relationship with Great Western Bank was a factor in her reliance on the truth of the statements of the representative from Great Western Financial, we do not believe a prior relationship with the defendant is necessary to establish reasonable reliance on the defendant's representations. In Gardner, for example, the transaction was completed in one evening and there was no prior relationship between the Gardners and the loan agent. (149 Cal.App.2d at pp. 369-370, 308 P.2d 892.)
Defendants argue that notwithstanding Ms. Jones' physical impairments her reliance on the misrepresentations by Miguel Santillan was unreasonable because, even if she could not read or understand the documents when she signed them, she was given copies of the documents to take home with her and she had three business days after executing the documents in which to cancel the contract.[3] She could have read the documents with her magnifying glass when she got home or had someone explain them to her. Her negligence in failing to do so precludes a finding the contract is void for fraud in the execution.
We disagree with defendant's contention Ms. Jones acted negligently. As the court in Rosenthal recognized, a party must have "a reasonable opportunity" to discover the real terms of the contract "before signing it." (20 Cal.4th at p. 423, 83 Cal.Rptr.2d 533, 973 P.2d 512; italics added.) Once the party signs the contract as a result of the defendant's fraud the transaction is complete and the cause of action for cancellation arises. Defendants do not explain why Ms. Jones should be required to have discovered defendants' fraud within the three-day cancellation period under Regulation Z. (See fn. 3, supra.) We note the purpose of the three-day "cooling off period is to give the consumer the opportunity to reconsider and cancel a transaction which involves encumbering the title to her home. (Rodash v. AIB Mortg. Co. (11th Cir.1994) 16 F.3d 1142, 1145.) If, as the trial court found, Ms. Jones did not know she had entered into a transaction encumbering the title to her home she would have no reason to be concerned about her right to cancel the transaction and no particular reason to read the documents she was given once she returned home. Only an unexpected event such as the Santillans' arriving oh her doorstep demanding a loan payment would prompt her to investigate whether the documents she signed were in fact what the defendants represented them to be.
Finally, defendants argue Ms. Jones' claims of physical and mental impairment are not believable. They point to Ms. Tisdale's declaration in support of a preliminary injunction in which she states Ms. Jones left eye was impaired by a cataract. Presumably, defendants state, Ms. Jones could have read the documents with her right eye. Defendants also question how a woman who was so mentally impaired she could not understand the nature of the contract she was entering into could, two years later, file a verified complaint and declaration under penalty of perjury swearing she could competently testify under oath to the facts alleged therein.
*157 As an appellate court, we do not review the evidence for its "believability." (Gardner v. Rubin, supra, 149 Cal.App.2d at p. 372, 308 P.2d 892.) Questions of credibility are for the trial court. Nevertheless we note Ms. Jones' eye surgeon filed a declaration stating at all times relevant to this action her visual acuity was 20/200 in both eyes. Furthermore, Ms. Jones submitted detailed evidence as to her mental condition at the time of the disputed transaction. Defendants submitted no contrary evidence as to her condition then or at the time she filed the complaint.
We conclude there was substantial evidence from which the trial court could find the loan documents were obtained through fraud in the execution without negligence on the part of Ms. Jones. Therefore the petition to compel arbitration was properly denied.
II. Defendants Were Not Entitled to a Statement of Decision.
Defendants contend the court erred in refusing their request for a statement of decision on the denial of their petition to compel arbitration. We disagree.
Code of Civil Procedure section 632 provides a request for a statement of decision must be made "within 10 days after the court announces a tentative decision unless the trial is conducted within one calendar day... in which event the request must be made prior to the submission of the matter for decision." In this case the hearing on the petition lasted only a few minutes and defendants did not make a request for a statement of decision "prior to the submission of the matter for decision." Therefore, the trial court properly denied the defendants' untimely request.
DISPOSITION
The order denying the petition for arbitration is affirmed.
LILLIE, P.J., and NEAL, J., concur.
NOTES
[1] According to Ms. Jones' verified complaint she never received any of the proceeds from this loan. Instead, Adams Financial Services gave Johnson a check representing the loan proceeds whereupon Johnson forged Ms. Jones' signature and deposited the check in her own bank account.
[2] Ms. Jones has an unaided visual acuity of 20/200 in both eyes, which constitutes legal blindness. (California School Employees Assn. v. Department of Motor Vehicles (1988) 203 Cal. App.3d 634, 638, fn. 2, 250 Cal.Rptr. 50.)
[3] Defendants are referring to the three-day "cooling off" period under the federal Truth in Lending Act and its accompanying Regulation Z. (15 U.S.C. §§ 1601, et seq.; 12 C.F.R. § 226.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262910/ | 207 F.Supp. 563 (1962)
PETER PAN FABRICS, INC.
and
Henry Glass & Co., Plaintiffs,
v.
PURITAN DRESS CO., Inc., Defendant.
United States District Court S. D. New York.
May 18, 1962.
Helfat & Helfat, New York City, for plaintiffs.
Rubin, Rubin, Pearlman & Weinberg, New York City, for defendant, Max Grossberg, New York City, of counsel.
BRYAN, District Judge.
This is an action under the Copyright Act, 17 U.S.C. § 101, for copyright infringement and unfair competition. Plaintiffs seek: (a) damages for infringement and unfair competition; (b) an accounting of all gains and profits; (c) the impounding and destruction of all infringing copies, plates and molds; and (d) costs and reasonable attorney's fees.
Jurisdiction is based on 28 U.S.C. § 1338.
Plaintiffs now move, pursuant to Rule 56, Federal Rules Civil Procedure, 28 U. S.C., for summary judgment in their favor on all issues raised by the complaint except as to the amount of damages, for *564 reference of the action to a master, pursuant to Rule 53, F.R.Civ.P., to take an accounting of plaintiffs' damages and loss and defendant's profits, and for costs and attorney's fees.
Plaintiffs claim that there is no genuine issue as to any material fact except as to the amount of damages and that they are entitled to a judgment on all questions of liability as a matter of law.
The facts as they appear from the papers before me are virtually undisputed and are as follows:
Plaintiff Peter Pan Fabrics, Inc. (Peter Pan) is a New York corporation under whose name various fabric designs are copyrighted and advertised for sale. Peter Pan is a wholly owned subsidiary of plaintiff Henry Glass & Co. (Glass). Glass, also a New York corporation, converts and sells fabrics to women's apparel manufacturers and handles the financial arrangements involved in such sales. It is known in the industry as a "style leader" and uses the designs of its subsidiary Peter Pan.
Defendant Puritan Dress Co., Inc. (Puritan), a Massachusetts corporation which has a place of business in New York, is a manufacturer of women's dresses.
At the request of Wilner, president of both plaintiffs, the Pierre Kittler Studio of Paris created and painted a fabric design known as Style 680, Range 1, "Byzantium" (hereinafter referred to as "Byzantium") and assigned it to plaintiff Peter Pan. The design was based on notes and sketches which Wilner prepared during a trip to Istanbul. It "is a solid design made up of motifs suggestive of the Near East: arches reminiscent of Arabic architecture, figures much like those in Oriental rugs, tablets covered with palpable imitations of Arabic script and other unidentifiable but similar decorations." Peter Pan Fabrics, Inc. v. Brenda Fabrics, Inc., 169 F.Supp. 142 (S. D.N.Y.1959).
Peter Pan made a reproduction of this fabric design and secured a copyright for it under 17 U.S.C. § 5(h). The certificate of registration is dated and identified as "July 9, 1958, Class H, No. 7290."
The fabric design has been published by Peter Pan since June 30, 1958. Glass, Peter Pan's parent corporation, has been converting greige goods into printed textiles bearing the design and offering them for sale to manufacturers of women's dresses since October of 1958.
Notice of Copyright is annexed to the fabric by printing on the selvage (or border) of the goods and is repeated at intervals of about 19 inches so that there are approximately two copyright notices on every yard of material.
Some time after October 1958 the Martin Weiner Corp., not a party here, began manufacturing printed textiles which were copies of the Peter Pan Byzantium design and selling them to various women's apparel manufacturers. Puritan purchased some 24,000 yards of the fabric with the copied design from Martin Weiner. It manufactured and sold approximately 8,000 dresses made from the fabric.
Plaintiffs' copyright of the Byzantium design and infringement of that copyright has been the subject of considerable litigation in this court. See Peter Pan Fabrics, Inc. v. Acadia Company, Inc. (Peter Pan Fabrics, Inc. v. Martin Weiner Corp.), 173 F.Supp. 292 (S.D. N.Y.1959), aff'd 274 F.2d 487 (2 Cir. 1960); Peter Pan Fabrics, Inc. v. Dixon Textile Corporation, 280 F.2d 800 (2 Cir. 1960); Peter Pan Fabrics v. Dixon Textile Corporation, 188 F.Supp. 235 (S. D.N.Y.1960); Peter Pan Fabrics, Inc. v. Brenda Fabrics, Inc., 169 F.Supp. 142 (S.D.N.Y.1959).
In these cases the plaintiff claimed infringement of its Byzantium design by Martin Weiner Corporation, the manufacturer of the fabric which was copied from the design, and various dress manufacturers who purchased the copied fabric manufactured by Weiner, and sold dresses made of that fabric. Issues substantially the same as the issues in the case at bar were raised in these cases *565 and all of such issues were determined in favor of the plaintiffs here. The law with respect to facts practically identical with those now before the Court has been exhaustively stated in those cases and there is no need to repeat it here. These decisions have resolved in favor of Peter Pan and Glass every legal and factual issue now raised by the defendant Puritan in the case at bar.
Puritan, while denying in its answer all of the allegations of the complaint except the allegations as to the incorporation of the plaintiff, attempts to resist the motion for summary judgment on two grounds only. These are: (1) that the Byzantium design was not original and therefore not properly copyrighted; and (2) that it had no notice or knowledge of the alleged copyright.
These grounds are specious and without merit.
(1) As to whether this design is sufficiently original to be copyrighted, the Court of Appeals for this Circuit specifically held in Peter Pan Fabrics, Inc. v. Dixon Textile Corporation, supra, 280 F. 2d at p. 802, that
"While the basis of the sketches appears to have been suggested by or perhaps taken faithfully from ancient art forms, their incorporation into a combined design by the Parisian designer is clearly sufficiently original to satisfy the originality requirement of the copyright law * * *. Originality, not novelty, is the test."
The entire subject is fully discussed in the various Peter Pan cases and nothing need be added to that discussion here.
Puritan does not deny that the Byzantium design was created for plaintiffs by a Paris house from sketches made by plaintiffs' president. The sole support for the defendant's claim that the design is not original is a statement in an affidavit by its vice president, Nelson, that "in my thirty years in the textile industry, I have seen literally hundreds of fabric designs similar to plaintiffs'." This is wholly insufficient to raise any question of fact as to whether the design was sufficiently original to be copyrighted, particularly in the light of the previous decisions on this very subject with which the defendant must be thoroughly familiar.
(2) Defendants' second ground for opposing the motion, lack of notice, is equally devoid of merit. Publication is deemed "to have occurred on sale of the printed goods to the dress manufacturers, and notice at that time is to be held constructive notice to all dress manufacturers, provided the notice was sufficient." Peter Pan Fabrics, Inc. v. Dixon Textile Corporation, supra, 280 F.2d at p. 803. The adequacy of the method of giving notice of copyright to dress manufacturers, by printing the notice on the selvage of the cloth, has already been determined as a matter of law in the earlier litigation involving the Byzantium fabric. Such notice is clearly good. See Peter Pan Fabrics, Inc. v. Martin Weiner Corp., supra; Peter Pan Fabrics, Inc. v. Dixon Textile Corporation, supra.
Defendant contends finally that the motion for summary judgment must be denied because it had no actual knowledge of the copyright. This question does not bear on the issue of liability but only goes to the issue of the amount of damages. F. W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 73 S.Ct. 222, 97 L.Ed. 276 (1952).
There is no genuine issue as to any material fact bearing on the question of liability and plaintiff is entitled to judgment as a matter of law on all issues raised by the complaint except the issue of damages. Judgment will be entered in favor of plaintiffs and against defendant accordingly. The issue of damages and loss suffered by the plaintiff and of profits made by defendant will be referred to a Special Master to be appointed by the Court to hear and report thereon. Costs and attorney's fees will abide his report.
Settle order on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262916/ | 207 F.Supp. 336 (1962)
Edward NARDONE et al., Plaintiffs,
v.
GENERAL MOTORS, INC., Defendant.
Civ. A. No. 469-58.
United States District Court D. New Jersey.
June 26, 1962.
*337 Weiner, Weiner & Glennon, by Otto C. Staubach, Elizabeth, N. J., for plaintiffs.
Carpenter, Bennett & Morrissey, by Richard H. Hughes and Laurence Reich, Newark, N. J., for defendant.
COOLAHAN, District Judge.
This is a suit for recovery of wages for uncompensated time spent in performing various activities allegedly relating to the general job of metal finisher in the body shop of the B.O.P. Assembly Division Plant of General Motors at Linden, New Jersey.
The action was instituted by 53 plaintiffs, each seeking individual recovery. The action was brought pursuant to 29 U.S.C.A. § 216(b), popularly known as the Fair Labor Standards Act. All of the plaintiffs were employees of General Motors. The period of time covered by this suit is April 25, 1956 to April 25, 1958 inclusive. The case was first tried before the late Judge Morrill and is now here upon stipulation that this Court decide the case on the record and briefs as originally submitted.
The record discloses that Judge Morrill was of the opinion that this suit was not a class action. Of the 53 plaintiffs involved only 12 testified. This procedure was followed because the Court wished to expedite matters and therefore requested that the scope of all claims be covered by as few witnesses as possible. The testimony of the 12 men therefore covered all types of jobs in the department in question. Since this suit is for individual recovery by each plaintiff the problem of the effect of the judgment upon those who did not testify arises.
The leading case in this area is the Third Circuit decision of Pentland v. Dravo Corp., 152 F.2d 851 (3rd Cir., 1945). This opinion discusses the problem in terms of the spurious class action and reaches a conclusion that only those plaintiffs who testified can be bound by the judgment. Therefore, it is not clear whether the remaining 41 plaintiffs will be precluded by the disposition of this case. However, since all the plaintiffs are similarly situated, in that the activities for which they seek compensation are alike, the ruling of this Court should effectively serve notice upon all as to the possible disposition of their individual claims.
Plaintiffs' basic contentions are that the employees involved performed certain activities integrally related to their employment for which they were not compensated. These activities may be summarized as including clothes changing; washing up; drawing coveralls, gloves and tools and putting same away after work.
Since this suit is in an individual capacity the time spent in performing the above activities varies with the particular plaintiff who allegedly performed those tasks. For the purposes of this opinion we will deal with the plaintiff claiming the maximum in time spent doing these activities.
The activities in question can basically be divided into pre-shift and post-shift time. The pre-shift time is before this Court based upon the recollection by the plaintiffs as to the time spent in performing those tasks. The estimates vary but in cases of this nature such estimation *338 is a proper procedure. See DeRose v. Eastern Plastics, Inc., 134 F.Supp. 805 (W.D.Penn.1955). The pre-shift activities include changing clothes; obtaining tools from a tool box (tool box was located right next to the assembly line); obtaining new tools from the foreman; putting on coveralls, gloves, aprons, goggles and hoods (hoods were only worn by certain workers). As to the postshift activities they included putting away tools; taking off coveralls, etc.; washing up; and taking a shower at home. The post-shift activities are subject to a more strict limitation than the pre-shift since there is some recorded date available consisting of the punchout time record which appears on the office time cards. Judge Morrill indicated that he believed this punchout time would provide a ceiling on the plaintiffs' recovery, if any, since this was the last act performed before leaving the plant. This punchout time, of course, does not limit the time allegedly spent showering. Using this data as supplied in the appendix, it is interesting to note that the greatest amount of time spent in post-shift activities was 6.16 minutes on the average, and that by only one plaintiff. Certain plaintiffs spent less than 2 minutes, on the average, in leaving work after the whistle blew. It must also be pointed out that all the activities listed above were not performed by all the plaintiffs on each working day, but rather encompass all the possible activity for which a plaintiff could claim compensation. It is also interesting to note in assessing the plaintiffs' credibility that the average punchout time, per the cards, is for the most part less than the time testified to by the plaintiffs on the stand. This suggests that there was an inaccurate estimate of the time needed for each activity by the plaintiffs.
There seems to be two major questions of law present. The first question to be decided is whether or not any of the claimed activities fall into the group of compensable tasks covered by the F.L.S.A. If plaintiffs can establish that any or all of the tasks are compensable we then reach the question of the de minimis barrier.
In determining which activities comprise compensable tasks under the F.L.S.A., resort must be had to legislative history, administrative rulings and the case law as determined by the Courts. Changing clothes and showering are normally not considered to be compensable tasks. 29 C.F.R. § 790.7(g) clearly states checking in, changing clothes, washing up or showering are all activities which are considered either preliminary or postliminary and hence not compensable. This is supported by the legislative history as set out in 93 Cong.Rec. 2297-8 (80th Cong. 1st Sess. 1947) and Dunning v. Q. O. Ordnance Corp., 228 F.2d 929 (8th Cir., 1955), 233 F.2d 902 (8th Cir., 1956), cert. denied 352 U.S. 927, 77 S.Ct. 226, 1 L.Ed.2d 162 (1956), and numerous other decisions. In the face of this authority plaintiffs assert two cases in their behalf. They are Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956) and Mitchell v. King Packing Co., 350 U.S. 260, 76 S.Ct. 337, 100 L.Ed. 282 (1956). Steiner is the plaintiffs' principal authority and it is noteworthy that this case recognized the basic principle mentioned at the beginning of this paragraph. In Steiner the workers dealt with highly toxic lead compounds and fumes throughout the work day. A Tennessee statute required that washing and showering facilities be maintained and utilized on the employer's premises. Safe operations required the use of these facilities and a changing of work clothes. (These work clothes were supplied by the employer since due to the rapid deterioration the employees could not have afforded their maintenance). This washing took 30 minutes a day for all employees and was required by the employer. The employer's insurance carrier required the employer to adopt this procedure. The question in the case was whether or not these tasks were part of the principal activity and hence compensable. Said activities were held to be made necessary by the nature of the work and the Court felt they fulfilled mutual *339 obligations between the employer and the employee and were an integral part of the employee's duties and therefore part of the principal activity under the F.L.S.A., and not exempted by the Portal Act. It must be pointed out that there was no question of damages involved in that case since the suit was for prospective relief instituted by the Secretary of Labor to compel the company to keep a record of the time spent in performing said activities. To gain the benefit of this decision it becomes necessary for the plaintiffs to show that the changing of clothes and washing up in the case at bar would be an integral part of their employment. They presented an expert witness who testified to the dangers of working with lead substances. However, the expert had never been at the plant, nor had he examined any of the men claiming benefits. There is no evidence that any dangerous condition existed at the plant or that the hygienic facilities were not adequate. New Jersey has no corresponding State Law as in Steiner, nor is there any insurance company requirement. In fact the General Motors Plant has been approved as to safety. The company does not require the men to change clothes nor to wash up, although it does provide basins for this latter purpose.
The second case relied on by the plaintiffs is King Packing. In that action the workers were required to spend time sharpening knives outside of their regular shift time spent in butchering meat. In that case the company required the workers to spend this time and in many instances the workers had to provide their own knives. The sharpening activities included the company's equipment as well as the workers' tools and was required to be performed outside of shift time. This was also an in futuro case and did not seek damages. The Court held the knife sharpening to be an integral part of the job and hence allowed the relief sought.
The record and briefs in the case at bar indicate many points of divergence between the decisions in Steiner and King and the instant case. To place themselves under King plaintiffs argue that they were required to keep their tools ready before the shift started. However, they have admitted that they would not be subject to discipline or discharge for failure to do any of the tasks claimed on their own time. It can safely be assumed that there is no employer rule, either express or implied, that the plaintiffs perform any activities of a substantial nature on their own time. Bland statements by the plaintiffs that the tasks in question are integrally related to their principal activity will not bring them under the rationale of either Steiner or King.
The case of Mitchell v. Southeastern Carbon Paper Co., 228 F.2d 934 (5th Cir. 1955) disallowed recovery under a similar factual situation to the case at bar. Even where there was an employer requirement as to changing and washing up recovery was disallowed in Dunning v. Q. O. Ordnance Corp., supra.
The next point in controversy is the effect of 29 U.S.C.A. § 203(o). That section of the F.L.S.A. bars washing up and clothes changing time from overtime consideration where such time is the subject of a collective bargaining agreement or is excluded by custom or practice under such an agreement. It is the defendant's contention that the agreement between the Union and the employer here provides for this problem. The plaintiffs contend that there was no agreement between management and labor and hence say there could have been no custom or practice since the matter was entirely unresolved from the Union's point of view. The evidence discloses that in the negotiations prior to entering into the 1946 agreement there was a demand for a 5 minute washup time prior to lunch and before quitting time (D-1). This was eventually resolved by stating that the plant policy would continue (nonpayment for such time). The reference to policy indicates a custom that such time was traditionally uncompensated. In later negotiations of collective bargaining agreements (D-2 and D-3) *340 there is confirmation of this fact. The Union continued to press for such payment but met with no added success. It is outside the confines of this case, but D-7 discloses that the agreement entered into on October 21, 1958 allowed certain designated jobs in this department up to 12 minutes per day for pre-shift, noontime and after-shift change and clean up time. This 12 minutes was to be charged as straight time and not to be considered for the purpose of overtime. The defendant has shown the history of its dealings with the Union as being that as would exempt washing and clothes changing time from payment. It also has shown that the collective bargaining agreement negotiations encompassed such a problem. Therefore they reason that the statute precludes the plaintiffs' recovery for these activities. This seems to be a logical interpretation in light of the above circumstances and the information set out in 29 C.F.R. § 790.10 (c). There is some merit in plaintiffs' argument that there must be accord between management and labor since it would be manifestly erroneous to permit subversion of the F.L.S.A. by not allowing benefits to employees because the Union could not get such recognition in its contract. However, they do not overcome the argument that the policy did exist, nor can they show that the negotiations entered into were other than on equal basis. If the activities were in fact necessary to perform the work there is strong reason to believe the Union would have been able to secure their payment through negotiation.
The parties are also in disagreement as to the burden of proof necessary to establish compensable activities and the time spent therein. The governing test is laid down in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), and states that the employee need only show that he has in fact performed work for which he was improperly compensated and must produce sufficient evidence to show the amount of that work as a matter of just and reasonable inference. Plaintiffs argue they sustained this burden by showing compensable activity and giving an estimate of the time spent, thereby shifting the burden of proof to the employer. They cite Handler v. Thrasher, 191 F.2d 120 (10th Cir. 1951) as their authority. This case supports their position only if they are capable of creating the favorable inference required by Mt. Clemens. Here each of the plaintiffs allege different times spent, and most of them state that certain tasks were performed on some days and on other days not at all. This, plus the great disparity between the times estimated in different parts of the testimony of individual plaintiffs, (contradicting themselves), negates their contention. See Eaknis v. Alvarado Broadcasting Co., 125 F.Supp. 87 (D.N.M. 1954); Davies v. Onyx Oils and Resins, Inc., 63 F.Supp. 777 (D.N.J.1946); McIntyre v. Joseph E. Seagram & Sons Co., 72 F.Supp. 366 (W.D.Ky.1947). These cases point out how the favorable inference is created and the extent to which the plaintiffs' credibility must be scrutinized.
The final point involves the de minimis question. Defendant contends that the plaintiffs are precluded from recovery by virtue of this doctrine. Such a doctrine has even found recognition in the Mt. Clemens decision. The concept is to deny recovery for otherwise compensable activity if the time involved is only a matter of minutes or seconds. The plaintiffs argue they can overcome this rule by virtue of the fact that the time involved herein spans a two year period therefore making it substantial and not minimal. However, this misconstrues the purport of the Mt. Clemens doctrine since the basic tasks still are in terms of minutes per day. Plaintiffs cite the District Court Opinion in Tobin v. King Packing Co., 107 F.Supp. 369 (D.Idaho, 1952) affirmed 216 F.2d 618 (9th Cir. 1954) reversed 350 U.S. 260, 76 S.Ct. 337, 100 L.Ed. 282 (1956) which indicates by way of dicta that 10.4 minutes a day is not de minimis. However, the District Court went on to hold for the defendants *341 and disallowed recovery. Here there is little showing of any great amount of time spent. The average pre-shift time spent was testified to as 6 to 10 minutes per day. This figure was further reduced during cross-examination. The post-shift time comprised 6.16 minutes at the outside and this was only in one case. Therefore the time spent seems to have been insubstantial. The cases of Seagram, supra and McComb v. C. A. Swanson & Sons, 77 F.Supp. 716 (D. Neb.1948) support the defendant's contentions. In McComb (which had many facts similar to the instant case) the de minimis rule was held applicable, and Seagram held from 10 to 20 minutes per day to be de minimis.
It is the Court's opinion that an outer limitation on the number of minutes is not of itself the proper application of the de minimis rule. It is a doctrine which must be applied with common sense to the facts before the Court. An artificial time limit will not suffice. Here, in light of the uncertainty of how often the tasks were performed, or how long a period was required for their performance, and in the face of the punch card ceiling time, I would find that if the plaintiffs indulged in any compensable activity at all (perhaps getting tools or other equipment from foreman) then such time was merely de minimis and not recoverable.
A trend of decisions indicates that each case must be determined on its own facts. D. A. & S. Oil Well Servicing, Inc. v. Mitchell, 262 F.2d 552 (10th Cir. 1958). The entire picture must be considered along with the "industrial realities" of the situation. See Mitchell v. Stewart Brothers Construction Co., 184 F.Supp. 886 (D.Neb.1960) and Laudenslager v. Globe-Union & Co., 180 F.Supp. 810 (E.D.Pa.1958), affirmed 274 F.2d 814 (3rd Cir. 1960). The latter case involved lead storage battery workers as did Steiner and yet applied a rule of reason to reach a practical solution.
I hereby find in favor of the defendant on the grounds that plaintiffs have failed to establish the compensable nature of the clothes changing and washing time and have also failed to establish other than de minimis time spent in any other activity.
The form of this Opinion will be held to encompass findings of fact and conclusions of law as per F.R.Civ.P. Rule 52, 28 U.S.C.
Let an appropriate order be submitted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262948/ | 207 F.Supp. 830 (1959)
Claire F. TISHMAN, Executor, etc.
v.
UNITED STATES of America.
Civ. A. No. 2801.
United States District Court E. D. Virginia, Richmond Division.
April 24, 1959.
*831 John F. Kelly and LeRoy R. Cohen, Jr., Richmond, Va., for plaintiff.
Joseph S. Bambaccus, U. S. Atty., Richmond, Va., Rufus E. Stetson, Jr., and John F. Murrary, Department of Justice, Washington, D. C., for United States.
Sterling Hutcheson, District Judge.
This is an action to recover Federal Estate taxes and interest paid by the plaintiff.
The decedent, Philip F. Tishman, at the time of his death on March 4, 1956, owned an undivided one-half interest in certain real estate located in Richmond, Virginia. In submitting Federal Estate tax returns the plaintiff valued the one-half interest at $34,000.00. This sum was arrived at by an appraisal of the entire property at $80,000.00 and discounting the one-half interest owned by the decedent fifteen percent because of the fact that the interest was an undivided fractional part of the whole. Upon audit of the return the Commissioner of Internal Revenue determined the interest at the date of the decedent's death at the value of $40,000.00. Thereupon the Commissioner assessed a deficiency in the amount of $636.00, with interest thereon of $15.33. Those amounts were paid by the plaintiff and timely request for refund was disallowed. Thereupon this suit was instituted.
The case was tried before a jury, which returned a special verdict holding that the one-half interest in the property on March 4, 1956, had a value of $37,000.00. At the conclusion of all the evidence the plaintiff moved for a directed verdict and the motion was overruled. After the special verdict had been returned the plaintiff moved to set aside the verdict upon the ground that the evidence was insufficient to form a basis for the special verdict found by the jury.
It will be seen that the sole question involved is whether all the evidence is sufficient to support the findings of the jury that the value of the property at the date of the death of the decedent was $37,000.00.
Two qualified real estate appraisers were called by the plaintiff to testify as expert witnesses. Mr. Adrian Bendheim testified that he had appraised the property as of the date of the defendant's death as having a fair market value of $80,000.00 for the whole and one-half of that amount, less fifteen percent, or $34,000.00 as the value of the one-half undivided interest. It was upon that valuation the Estate tax return was based. The other expert, Mr. John W. Bates, Jr., testified that he had not appraised the property here involved but in accordance with normal practices based on experience regarding undivided interests, it was customary to discount the value of fractional interests in real estate between a minimum of fifteen percent and a maximum of fifty percent.
The defendant called Mr. Richard Chandler, Assessor for the City of Richmond, who testified concerning the assessed valuation of the real estate here involved, which was $99,730.00 for the years 1955 and 1956, for 1957 $86,700.00. He testified that appraisals for assessment purposes differ from other appraisals, that the city employs a mass appraisal system as distinguished from a subjective appraisal, and for assessment purposes fractional interests in real estate are not considered. It was his opinion that the allowance of a discount for joint ownership in appraising fractional interests is reasonable. The defendant *832 also called Mr. Frank Heindl, who testified concerning the sale of a fractional interest in adjoining property involved in a sale between members of a family without discount by reason of such fractional interests. He expressed the view, based upon his experience as a real estate dealer, that it is proper to discount fractional interests in arriving at market value.
The highest valuation which could be fixed for the purposes of this case is $80,000.00 for the whole. The only testimony of witnesses familiar with this property was to the effect that the fact of joint ownership reduced the market value fifteen percent. The taxpayer reported the value as $34,000.00, being fifteen percent, less than one-half the appraised value of the whole. The verdict of the jury fixed the value at $37,000.00, representing seven and one-half percent reduction in value. The $40,000.00 assessment valuation is prima facie proof of value. The only evidence to the contrary is $34,000.00 fixed by the appraisement. The verdict was obviously a compromise without any evidence to support it. The situation is not comparable to the ascertainment of fair market value in eminent domain proceedings in which the jury or commissioners are at liberty to view the property and form an opinion of value. Here there was a presumption that the valuation was $40,000.00, unsupported by the other evidence. The counter evidence based upon appraisals was $40,000.00 less fifteen percent, or $34,000.00. The jury rejected both and returned a compromise verdict. There is no evidence except the bare presumption to support the higher figure and this has been overcome by competent evidence fixing the value at $34,000.00. This is the only evidence in the case and it follows that the verdict should be set aside and judgment entered for the plaintiff in the amount sued for. See United States v. Grannis, 4 Cir., 172 F.2d 507, and Moore v. Chesapeake & O. Railway Company, 4 Cir., 184 F.2d 176; 340 U.S. 874, 71 S.Ct. 123, 95 L.Ed. 635. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262977/ | 31 Cal.App.4th 277 (1995)
36 Cal. Rptr.2d 901
A. BRUCE WALTON III et al., Plaintiffs and Respondents,
v.
BEVERLY WALTON, as Administrator, etc., Defendant and Appellant.
Docket No. C016397.
Court of Appeals of California, Third District.
January 3, 1995.
*282 COUNSEL
Eisen & Johnston, Jay-Allen Eisen, Marian M. Johnston, Karen Leaf and Ann Perrin Farina for Defendant and Appellant.
Hennelly & Grossfeld, Brian M. Englund, Fredrick S. Cohen and Daniel P. Whaley for Plaintiffs and Respondents.
[Opinion certified for partial publication[*]]
OPINION
SIMS, Acting P.J.
Defendant Beverly Walton, as administrator for the estate of A. Bruce Walton II (Bruce Jr.),[1] appeals from a judgment awarding specific performance of an oral contract to make a will in consolidated actions brought by plaintiffs A. Bruce Walton III (Bruce III) and Richard L. Walton (Rick). Defendant contends the trial court erred in denying her a jury trial and in granting specific performance on the merits.
In the published portion of the opinion, we conclude the trial court properly adjudicated the dispute without a jury. In the unpublished portion of the opinion, we conclude the trial court properly granted specific performance. We shall therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 1992, Bruce III and Rick filed separate complaints against defendant in her capacity as administrator of their father's estate, claiming entitlement to specific percentages of the stock in the family business, SBC Industries, Inc., pursuant to an oral agreement by Bruce Jr. to devise the stock to plaintiffs in his will. By amended complaints, plaintiffs each alleged the following counts: (1) breach of contract, (2) quasi-specific performance of an oral contract to make a will,[2] (3) common count money had and received, and (4) restitution.
The two complaints were consolidated, per stipulation of the parties.
Plaintiffs moved to sever and try separately the equitable claim for quasi-specific performance, pursuant to Code of Civil Procedure sections *283 598[3] and 1048.[4] Defendant demanded a jury trial and opposed severance on the ground she would be denied her right to jury trial. The trial court granted the motion to sever and set the case for nonjury trial of the quasi-specific performance claim, with a later date set for jury trial of the legal claims if needed.
The following evidence was adduced at trial (with quoted matter taken from the trial court's statement of decision):
In the early 1970's, plaintiffs owned stock in a family-held corporation, State Box Company. Bruce III owned 37.042 percent of the stock. Rick owned 12.775 percent, held in trust for him, with Bruce Jr. as trustee. The remainder of the stock of State Box Company (50.183 percent) was owned by Bruce Jr.
Bruce III worked at State Box Company until 1970, when he returned to college. Rick also worked at the company but stopped due to health reasons.
"... In late 1973, Bruce III discussed with Bruce Jr. the possibility that Bruce Jr. might purchase Bruce III['s] and Rick's shares in State Box Company. Bruce III believed that State Box Company was worth approximately $3 million.
"... In early 1974, Bruce Jr. offered that State Box Company would redeem the shares of Bruce III and Rick for $40.00 per share, most of which would be paid for with promissory notes at an interest rate of 4%.
"... Bruce Jr. also entered into an oral contract in early 1974, providing that if Bruce III and Rick would agree to allow their shares to be redeemed on the terms offered by Bruce Jr., then upon Bruce Jr.'s death, he would return the shares to them, provided he still owned them. Accordingly, Bruce III and Rick agreed to the terms of redemption offered by Bruce Jr.
*284 "... Bruce Jr., Bruce III and Rick understood this oral contract to mean that Bruce Jr. would return their respective percentage ownerships (Bruce III - 37.042%; Rick - 12.77%) to them, upon Bruce Jr.'s death, provided he still owned the family business that owned the real property at 840 S. River Road, West Sacramento, California. This real property was the principal asset of State Box Company, and Bruce III and Rick did not believe that Bruce Jr. was likely to dispose of that asset."
The deals were consummated in February 1974 in the form of a stock redemption by State Box Company. Plaintiffs were each represented by counsel but neither mentioned to his attorney that Bruce Jr. had agreed to bequeath the stock back to plaintiffs. As found by the trial court, plaintiffs considered the oral agreement to be a "private, family matter, that did not need to be documented and that should not be discussed outside of the Walton family."
A few months later, State Box Company ceased to exist. Bruce Jr. merged it with another company he owned, Pres-to-Logs Distributors, to gain tax advantages. The new corporation was named SBC Industries, Inc. It continued to own land formerly owned by State Box Company and continued to use the State Box Company logo and bank accounts.
In 1982, Bruce Jr. executed a will disinheriting plaintiffs. Although plaintiffs heard rumors they were disinherited, they believed the disinheritance affected only property other than the stock affected by the agreement.
In 1984, Bruce Jr. suffered a severe stroke, which left him physically incapacitated.
In October 1991, Bruce Jr. died. At his death he held 100 percent of the stock of SBC Industries, Inc.
In March 1992, Bruce III and Rick filed claims against Bruce Jr.'s estate in the probate court. Bruce III demanded $4,445,040, as the value of the stock Bruce Jr. promised to devise to him; Rick demanded $1,440,000. The claims were rejected, and the present actions were filed.
Following the bench trial of the quasi-specific performance claim, the trial court issued a statement of decision in plaintiffs' favor, finding (1) plaintiffs and Bruce Jr. entered an agreement whereby plaintiffs allowed their stock to be redeemed on the terms offered by Bruce Jr., who agreed to devise the shares to plaintiffs upon his death if he still owned the family business, (2) the fair market value of plaintiffs' stock at the time of redemption was *285 $73.17 per share, (3) Bruce Jr.'s promise to return the stock to plaintiffs was additional consideration on which plaintiffs agreed to sell at $40 per share. The court also found the oral contract was definite, complete and sufficiently clear to be enforceable; the contract was fair, just and reasonable and supported by adequate consideration; plaintiffs fully performed the contract; Bruce Jr. breached the agreement; and plaintiffs' remedy at law was inadequate.
The trial court further found the merger of State Box Company with Pres-to-Logs Distributors and the subsequent name change to SBC Industries did not prevent the court from awarding equitable relief. The merger was done for tax reasons, which benefited Bruce Jr. There was no significant change in the operations of the corporation after the merger. Both before and after the merger the principal asset of the company was real property constituting 99.7 percent of the company's assets.
"The parties did not contemplate that the oral contract could be avoided by the pretext of a change in corporate form. Further, the Court, sitting in equity, has considerable discretion, which it chooses to exercise, in determining the appropriate relief.
"The nature of the oral agreement is such that quasi-specific performance is the appropriate remedy."
Plaintiffs dismissed all other causes of action.
The trial court entered judgment that the "Estate of A. Bruce Walton II holds 37.042% of the outstanding shares of stock of SBC Industries, Inc. in trust for A. Bruce Walton III and 12.775% of the outstanding shares of stock of SBC Industries, Inc. in trust for Richard Lynn Walton." The court ordered defendant to deliver the share certificates to plaintiffs and reserved jurisdiction to supervise and compel compliance.
DISCUSSION
I. Right to Jury Trial
Defendant contends the trial court erred in denying her a jury trial in violation of California Constitution, article I, section 16, which provides: *286 "Trial by jury is an inviolate right and shall be secured to all...."[5] We disagree.
A. No Waiver
(1) We first dispose of plaintiffs' assertion that defendant waived the right to a jury trial by failing to renew her demand for jury trial at the commencement of the court trial and by failing to post jury fees. We find no waiver.
The case was originally set for a trial by jury (at plaintiffs' request) to begin on April 19, 1993. Before trial, plaintiffs moved for severance and a separate court trial of the quasi-specific performance claim. Defendant responded with a written demand for a jury trial. Defendant also filed a written opposition arguing the existence and interpretation of the alleged oral contract must first be determined by a jury, as a prerequisite to equitable relief.
On March 8, 1993, the court granted plaintiffs' motion, ordered the quasi-specific performance claim to proceed to a court trial on April 19th, the date originally set for trial of the entire action, with a jury trial of any remaining legal issues to commence May 17th, if necessary.
Defendant apparently did not deposit jury fees for the April 19th trial date, though she did deposit jury fees in advance of the May 17th trial date.[6]
Under these circumstances, there was no waiver. Plaintiffs cite no authority requiring defendant to renew the jury demand at the commencement of the court trial. There can be no waiver of jury trial by implication. (Cohill v. Nationwide Auto Service (1993) 16 Cal. App.4th 696, 700 [19 Cal. Rptr.2d 924].) The exclusive methods of waiver are set forth in section 631. (Ibid.) Section 631, subdivision (c), provides that where, as here, the party who initially demanded a jury trial waives the right to jury trial after the assignment for trial to a specific department of the court, the other party's right to a jury trial is waived by failing "promptly to demand trial by jury before the judge in whose department the waiver ... was made" or by failing timely to deposit jury fees 25 days before trial.
*287 Here, defendant promptly demanded a jury trial when plaintiffs waived their demand by moving for a separate court trial. The court refused defendant's demand. No further demand was required. Moreover, defendant "having been refused a jury [was] not thereafter required to deposit fees for a jury trial which had been denied [her]. The law does not require the performance of an idle act. (Civ. Code, § 3532.)" (Robinson v. Puls (1946) 28 Cal.2d 664, 667 [171 P.2d 430].)
We conclude defendant has not waived the jury trial issue.
B. No Right to Jury Trial
(2) Our Supreme Court has said: "The right to a jury trial is guaranteed by our Constitution. (Cal. Const., art. I, § 16.) We have long acknowledged that the right so guaranteed, however, is the right as it existed at common law in 1850, when the Constitution was first adopted, `and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact.' [Citations.] As a general proposition, `[T]he jury trial is a matter of right in a civil action at law, but not in equity.' [Citations.]
"`"If the action has to deal with ordinary common-law rights cognizable in courts of law, it is to that extent an action at law. In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law."' [Citation.] On the other hand, if the action is essentially one in equity and the relief sought `depends upon the application of equitable doctrines,' the parties are not entitled to a jury trial. (E.g., Hartman v. Burford (1966) 242 Cal. App.2d 268, 270 [51 Cal. Rptr. 309] [enforcement of promise to make a will]....) Although ... `the legal or equitable nature of a cause of action ordinarily is determined by the mode of relief to be afforded' [citation], the prayer for relief in a particular case is not conclusive [citations]. Thus, `The fact that damages is one of a full range of possible remedies does not guarantee ... the right to a jury....' [Citation.]" (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8-9 [151 Cal. Rptr. 323, 587 P.2d 1136], original italics.)
(3) There is no constitutional right to a jury trial in an action for specific performance, even though such action implicates legal issues regarding contract formation. Thus, at common law an action for specific performance was triable only in a court of equity, wherein a jury trial was not a matter of *288 right. (Connell v. Bowes (1942) 19 Cal.2d 870, 871 [123 P.2d 456].) As we said many years ago: "Actions to enforce specific performance were not recognized at common law. [Citation.] Such actions are wholly of equitable cognizance. [Citations.]" (Schaefer v. United Bank & Trust Co. (1930) 104 Cal. App. 635, 641 [286 P. 723] [no right to jury trial where main purpose of action was to compel specific performance of agreement to issue certain corporate stock].) "The fact that in an action for specific performance of an agreement the court must determine the existence of the agreement does not in itself transform the action into one at law. [Citation.]" (Hastings v. Matlock (1985) 171 Cal. App.3d 826, 835 [217 Cal. Rptr. 856].)
Additionally, at common law an action for specific performance of an agreement to make a will was triable in equity for another reason enforcement of the agreement implicated equitable principles of trusts.
Thus, though not a case about the jury trial guarantee, Owens v. McNally (1896) 113 Cal. 444 [45 P. 710], citing pre-1850 common law, held "... a man may make a valid agreement binding himself to dispose of his property in a particular way by last will and testament, and a court of equity will enforce such an agreement specifically by treating the heirs as trustees and compelling them to convey the property in accordance with the terms of the contract." (Id. at p. 448; see also Redke v. Silvertrust (1971) 6 Cal.3d 94, 100 [98 Cal. Rptr. 293, 490 P.2d 805] [contract to make a particular testamentary disposition of property is valid and enforceable].)
"An action of the type involved here has been called one for quasi-specific performance of the contract to make a will. [Citation.] Since the making of a will cannot be compelled, there can be no specific performance of such a contract in the strict sense, but under certain circumstances equity will give relief equivalent to specific performance by impressing a constructive trust upon the property which decedent had promised to leave to plaintiff. [Citations.] The jurisdiction over such actions rests in equity and not in probate. [Citation.]" (Ludwicki v. Guerin (1961) 57 Cal.2d 127, 130 [17 Cal. Rptr. 823, 367 P.2d 415].)
"In enforcing the testator's contract the courts use the theory of constructive trusts as well as that of specific performance. The estate, and through it the legatees, would gain assets by the wrongful act of the testator; therefore equity intervenes ... to establish an involuntary trust for the benefit of the person who would otherwise have the assets. [Citations.]" (Thompson v. Beskeen (1963) 223 Cal. App.2d 292, 296 [35 Cal. Rptr. 676].)
In Hartman v. Burford (1966) 242 Cal. App.2d 268 [51 Cal. Rptr. 309], the plaintiff brought an action seeking specific performance of an oral agreement by her parents to devise property to her by will. The trial court *289 impaneled a jury, but the court treated the verdict as advisory and independently found the oral agreement had not been proved. The appellate court ruled the trial court could properly disregard the jury's verdict. There was no right to a jury trial because the action was one in equity. (Id. at p. 270.) "[W]here, as here, the pleadings disclose that the action is essentially one in equity and that the relief demanded depends upon the application of equitable doctrines, the parties are not entitled to a jury trial. [Citations.] Here appellant seeks a kind of relief that has been described as `quasi specific performance.' [Citations.] The prayer of the complaint is for a decree declaring that respondents hold one-third of the estate of [the decedent] for the benefit and account of appellant. Thus the action is clearly one in equity, seeking equitable relief, and jury trial is not a matter of right." (Ibid.)
We note the Supreme Court has cited Hartman with approval as an example of an action for which there is no constitutional right to a jury trial: "[I]f the action is essentially one in equity and the relief sought `depends upon the application of equitable doctrines,' the parties are not entitled to a jury trial. (E.g., Hartman v. Burford (1966) 242 Cal. App.2d 268, 270 [51 Cal. Rptr. 309] [enforcement of promise to make a will] ....)" (C & K Engineering Contractors v. Amber Steel Co., supra, 23 Cal.3d at p. 9 [no right to jury trial in action for damages for breach of contract where action was based on equitable principle of promissory estoppel].)
Thus, there is no constitutional right to a jury trial in an action for quasi-specific performance of an agreement to make a will.
Defendant appears to agree with this principle. Thus, she accepts Hartman's holding that jury trial is not a matter of right in an action for quasi-specific performance of a promise to devise property. Defendant merely contends Hartman is distinguishable because there the plaintiff sought only quasi-specific performance. Defendant argues her case is different because plaintiffs also pled a legal claim for damages for breach of contract (as well as other legal claims).
(4a) Defendant's argument may be summarized as follows: The complaints alleged breach of contract as the first count and incorporated those allegations by reference in the second count for quasi-specific performance. California follows Pomeroy's "primary right" theory of pleading, under which the pleading of different forms of relief does not mean there is more than one cause of action. The primary right of a plaintiff seeking to enforce a contract is legal in nature, regardless of whether the plaintiff seeks legal relief alone (damages for breach of contract) or alternatively seeks equitable relief (specific performance). According to defendant, the right to jury trial *290 could not be defeated by adding an equitable claim for specific performance and then severing the equitable claim for separate trial. As defendant puts it: "[S]pecific performance was not a separate or severable cause of action at all. Plaintiffs' complaint set out only one cause of action, and sought both legal and equitable relief for the same, single cause of action." Defendant believes the proper procedure would have been to submit to a jury the questions whether an agreement existed and was breached. If the jury so found, then the trial court could grant the equitable relief of quasi-specific performance if the court found such relief appropriate. If the trial court did not find such relief appropriate, the jury would decide the question of damages for breach of contract.[7]
We believe defendant's argument is flawed. The linchpin of her argument is the asserted applicability of the "primary right" theory of pleading to the question of the constitutional right to a jury trial. However, the primary right theory of pleading does not control the determination of the jury trial guarantee.
*291 1. Primary Right Theory Does Not Control
(5) The "primary right" theory of pleading is a "theory of the `cause of action' [which] vitally affects the solution of such pleading problems as splitting [and], amendment ..., and has an important place in the application of the doctrine of res judicata." (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 23, p. 66, italics omitted.) Under this theory, the "cause of action" is comprised of the facts from which a primary right of the plaintiff and a corresponding duty in the defendant have arisen, together with facts constituting the defendant's delict or act of wrong. (4 Witkin, op. cit. supra, at p. 67.) There is a distinction between "the cause of action (the primary right and duty, and the violation thereof) and the remedy or relief sought. The violation of one primary right may sometimes give rise to two or more remedial rights, entitling the plaintiff to two or more remedies or forms of relief; and the fact that several forms of relief are sought, whether legal or equitable or both, does not mean that there is more than one cause of action. [Citations.]" (4 Witkin, op. cit. supra, § 29, p. 73.) "Where a single right and injury are involved, there is only one cause of action though the complaint seeks distinct legal or equitable remedies." (4 Witkin, op. cit. supra, § 30, p. 74.)
Thus, the "primary right" does not encompass the remedy.
(4b) However, the determination of the jury trial guarantee does not turn on the "primary right" but rather on the "gist" of the action, a concept which does encompass consideration of the type of relief sought. Thus, the Supreme Court in C & K Engineering Contractors found the "gist" of an action seeking damages for breach of contract was equitable because relief depended upon application of the equitable doctrine of promissory estoppel. (23 Cal.3d at p. 9.) "[T]he complaint purports to seek recovery of damages for breach of contract, in form an action at law in which a right to jury trial ordinarily would exist. [Citations.] ... [H]owever, the complaint seeks relief which was available only in equity, namely, the enforcement of defendant's gratuitous promise to perform its bid through application of the equitable doctrine of promissory estoppel." (Ibid.) The legal or equitable "gist" of the action is ordinarily determined by the mode of relief to be afforded, though the prayer for relief is not conclusive. (Ibid.)
Thus, Pomeroy's "primary right" theory of pleading does not control determination of the right to a jury trial. The fact that plaintiffs may have alleged only one "primary right," legal in nature, does not mean the "gist" of the action is legal for jury trial purposes.
Defendant cites two cases which referred to the "primary right" as legal in actions to enforce promises to make a will. (Morrison v. Land (1915) 169 *292 Cal. 580, 586 [147 P. 259]; Shive v. Barrow (1948) 88 Cal. App.2d 838, 845 [199 P.2d 693].) However, neither case involved the question of the right to a jury trial. In both cases, the question was whether the plaintiff had to show inadequacy of the legal remedy in order to obtain specific performance. The answer was yes. (Ibid.) These cases have no bearing on the questions before us.
Defendant cites Medeiros v. Medeiros (1960) 177 Cal. App.2d 69 [1 Cal. Rptr. 696], where we held a jury trial was a matter of right in an action to quiet title despite the contention the action was equitable. That decision, however, was based on the rule that the nature of a quiet title action as legal or equitable depended on whether possession of the property was at issue. (Id. at pp. 72-73.) Medeiros thus has no bearing on this case.
We conclude defendant's reliance on Pomeroy's primary right theory of pleading is unavailing.
2. Alternative Pleading and Severance
(6a) Defendant contends the right to a jury trial cannot be defeated by joining equitable claims with legal claims and then severing the equitable claim for nonjury trial. She argues severance was improper because section 1048 (fn. 4, ante) expressly provides that severance may not be employed to deprive a party of the constitutional right to a jury trial. We find no merit in the contentions.
(7a) A plaintiff may plead inconsistent, mutually exclusive remedies, such as breach of contract and specific performance, in the same complaint. (Brandolino v. Lindsay (1969) 269 Cal. App.2d 319, 324 [75 Cal. Rptr. 56]; 4 Witkin, Cal. Procedure, op. cit. supra, Pleading, §§ 356-361, pp. 411-415.) Such alternative pleading is not a "joinder" of causes of action, because the "seeking of different kinds of relief does not establish different causes of action." (California Trust Co. v. Cohn (1932) 214 Cal. 619, 629-630 [7 P.2d 297].) (8) The statutory provisions for severance and separate trial are not limited to separate trial of a cause of action but also authorize separate trial of any issue. (§ 598, fn. 3, ante [court may order that trial of "any issue or any part thereof" shall precede trial of any other issue or part thereof]; § 1048, fn. 4, ante [court may order separate trial of any separate cause of action or "any separate issue"].)
(7b) Where mutually exclusive remedies are pled, there need not be a trial on both remedies. At some point an election of remedy may be compelled. (4 Witkin, op. cit. supra, § 363, pp. 416-417.) (6b) Here, *293 plaintiffs in effect elected to proceed on their quasi-specific performance claim a claim which defendant agrees did not give rise to a right to jury trial. The legal claims never went to trial and were ultimately dismissed. Defendant considers it significant that the legal claims were not dismissed until after the court trial of the equitable claim. However, defendant fails to show she objected to that procedure.
That the trial court severed the claims was not improper. (9) "It is well established that, in a case involving both legal and equitable issues, the trial court may proceed to try the equitable issues first, without a jury (or ... with an advisory jury), and that if the court's determination of those issues is also dispositive of the legal issues, nothing further remains to be tried by a jury. [Citations.]" (Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671 [111 Cal. Rptr. 693, 517 P.2d 1157].)
(6c) In arguing that joinder of equitable with legal claims cannot deprive a party of the right to a jury trial, defendant ignores the distinction that this case involved mutually exclusive remedies. She cites inapposite cases where a claim of one nature was raised by way of cross-complaint to a complaint of a different nature (e.g., Connell v. Bowes (1942) 19 Cal.2d 870 [123 P.2d 456] [in action for specific performance, defendant's cross-complaint for damages gave rise to right to jury trial]), or where one party raised cumulative legal and equitable remedies that were not mutually exclusive (e.g., Pacific Western Oil Co. v. Bern Oil Co. (1939) 13 Cal.2d 60 [87 P.2d 1045] [action for damages for past trespass and injunction to restrain future trespass]; Hutchason v. Marks (1942) 54 Cal. App.2d 113 [128 P.2d 573] [equitable claim for cancellation of instruments (which depended on rescission) and legal claim for fraud]).
In such cases, all claims legal and equitable must be tried, and the right to jury trial cannot be defeated by severance of the equitable claim. But where mutually exclusive remedies are pled, there need not be a trial on both the legal and the equitable remedy. Resolution of one renders the other moot. Thus, defendant's cited authorities are not helpful.
Defendant cites Selby Constructors v. McCarthy (1979) 91 Cal. App.3d 517 [154 Cal. Rptr. 164], for the proposition that where legal and equitable issues are joined in the same action the parties are entitled to a jury trial on the legal issues. There, a general contractor sued on a contract to obtain a money judgment and to enforce a mechanic's lien. (Id. at p. 525.) The property owner asserted defenses of nonperformance and negligent performance and cross-complained for damages on those grounds. (Id. at p. 520.) The appellate court reversed the trial court's judgment because the defendant had been *294 denied a jury trial. (Id. at p. 527.) However, in that case the appellate court found that the only equitable issues, if any, were those relating to the manner in which the lien was perfected. (Ibid.) Thus, Selby did not present a case of mutually exclusive claims where trial of equitable issues might eliminate the need for a jury trial at all.
Other cases cited by defendant involved actions combining legal claims for damages for past trespass or nuisance with a request for an injunction against future trespass or nuisance. (Pacific Western Oil Co. v. Bern Oil Co., supra, 13 Cal.2d at p. 68; Hughes v. Dunlap (1891) 91 Cal. 385, 390 [27 P. 642]; Arciero Ranches v. Meza (1993) 17 Cal. App.4th 114, 125 [21 Cal. Rptr.2d 127]; Farrell v. City of Ontario (1919) 39 Cal. App. 351, 356-357 [178 P. 740].) The basis for decision in those cases, however, was the historical fact that under English common law in 1850 a plaintiff had to establish at law the right to an injunction to restrain violation of a common law right. (Ibid.) These cases do not help resolve the case before us.
Finally, defendant cites the rule that the right to jury trial of a legal claim cannot be defeated through the device of bringing suit for declaratory relief. (Patterson v. Insurance Co. of North America (1970) 6 Cal. App.3d 310, 315-316 [85 Cal. Rptr. 665] [insured's cross-complaint for indemnity against insurer for refusal to defend insured in action by injured third party was legal in nature though cross-complaint was action for declaratory relief].) However, the principle presented by that situation is that "it is erroneous to say that all declaratory relief actions are equitable; an action for declaratory relief has been characterized as `sui generis.' [Citation.] Where an action for declaratory relief is in effect used as a substitute for an action at law for breach of contract, a party is entitled to a jury trial as a matter of right. [Citations.] `"[C]ourts will not permit the declaratory action to be used as a device to circumvent the right to a jury trial in cases where such right would be guaranteed if the proceeding were coercive rather than declaratory in nature."' [Citations.]" (Patterson, supra, 6 Cal. App.3d at p. 315.) Thus, in Patterson the complaint sought breach of contract relief in a nominally equitable form of action. Here, in contrast, the claim for quasi-specific performance did not seek breach of contract relief. To the contrary, the entire basis for quasi-specific performance was that the remedy at law was inadequate.
Defendant cites United States Supreme Court cases construing the federal constitutional right to jury trial, though she acknowledges the federal provision for jury trial in civil cases does not apply to the states. (Crouchman v. Superior Court (1988) 45 Cal.3d 1167, 1173, fn. 5 [248 Cal. Rptr. 626, 755 P.2d 1075].) Defendant nevertheless urges application of the same policy *295 safeguarding the constitutional guarantee. We do not find the cited authorities helpful. Thus, defendant cites Beacon Theatres v. Westover (1959) 359 U.S. 500 [3 L.Ed.2d 988, 79 S.Ct. 948], for the proposition that where a complaint for equitable relief and a cross-complaint for legal relief raise common factual questions, the defendant's right to a jury trial cannot be denied by a separate court trial of the equitable issues. Here, however, as we have explained, there was no cross-complaint but only alternative pleading of mutually exclusive remedies. Defendant also cites Lytle v. Household Manufacturing, Inc. (1990) 494 U.S. 545 [108 L.Ed.2d 504, 110 S.Ct. 1331], which involved independent and distinct claims which were not mutually exclusive. (Id. at pp. 548-549 [108 L.Ed.2d at p. 513.)
Thus, all cases cited by defendant are distinguishable. Defendant cites no authority precluding court trial in the circumstances of this case, where the legal and equitable claims were inconsistent, mutually exclusive remedies such that trial need not be had on both.
We conclude there was no violation of defendant's constitutional right to a jury trial.
II., III.[*]
.... .... .... .... .... .... .... .
DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.
Scotland, J., and Nicholson, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts II and III of the Discussion.
[1] For ease of reference we adopt the name designations used by the trial court.
[2] "Quasi-specific performance" is a term used for enforcement of a contract to make a will because the court cannot compel the making of a will but rather declares a constructive trust upon the property in the hands of those who have succeeded to the estate, which is in effect the equivalent of specific performance. (Ludwicki v. Guerin (1961) 57 Cal.2d 127, 130 [17 Cal. Rptr. 823, 367 P.2d 415]; 11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 28, pp. 706-707.)
[3] Undesignated statutory references are to the Code of Civil Procedure.
Section 598 provides in part: "The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order ... that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5...."
[4] Section 1048, subdivision (b), provides: "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States."
[5] In her reply brief defendant cites a statutory right to jury trial (§ 592 [issues of fact must be tried by a jury in actions for money claimed due upon contract or as damages for breach of contract]). However, that statute adds nothing to defendant's argument.
[6] At defendant's request, filed August 16, 1994, we take judicial notice of documents reflecting payment of the jury fees deposit on April 27, 1993.
[7] For purposes of this appeal we will assume jury trial would be a matter of right had the complaint alleged only a legal claim for damages for breach of contract. We note, however, that defendant has not shown such an action which still implicates constructive trust principles would have been triable at law in 1850. She cites Ripling v. Superior Court (1952) 112 Cal. App.2d 399 [247 P.2d 117] for the proposition that even though an action to impose a constructive trust is considered equitable in nature, some such actions were maintainable at common law as legal actions for debt or indebitatus assumpsit, for which no jury trial right attached. That case involved an action seeking return of funds held in trust. The appellate court emphasized the case was not truly one for a declaration of trust because the defendant admitted the trust but merely disputed that the money remained unpaid. (Id. at p. 407.) The common law action of indebitatus assumpsit generally involved the duty to pay money. (1 Corbin on Contracts (1963), § 20, pp. 50-51; Ames, The History of Assumpsit (1888) 2 Harv. L.Rev. 1, 64.) In another case cited by defendant, the court discussed the common law action of debt as one for recovery of a debt, i.e., money in an amount certain or readily ascertainable. (Grossblatt v. Wright (1951) 108 Cal. App.2d 475, 484, fn. 18 [239 P.2d 19].) We have noted that where recovery of specific, identified property is sought on the ground it is impressed with a trust, the issue does not involve an indebtedness of the estate, even though the complaint alternatively seeks the value of the property. (Pay Less Drug Stores v. Bechdolt (1979) 92 Cal. App.3d 496, 501-502 [155 Cal. Rptr. 58] [action for rescission of contract].) Moreover, in Woolsey v. Woolsey (1932) 121 Cal. App. 576 [9 P.2d 605], we rejected an argument that a complaint against an estate administrator, to declare a trust in a bank account, alleged an action at law in the nature of assumpsit. The demand for judgment was "dependent upon the equitable establishment of the alleged trust." (Id. at p. 581.) Finally, we note this type of case implicates the equitable principle of estoppel to plead the statute of frauds. (Prob. Code, § 150, subd. (c) [effective Jan. 1985, contract to make a will can be established only by a writing].) Before January 1985 the same restriction was contained in the statute of frauds (Civ. Code, § 1624) but was deleted by Statutes 1983, chapter 842, section 6, page 3021 operative January 1, 1985. Defendant cites the statute of frauds only in connection with her argument that the court erred in granting specific performance, and plaintiffs point out defendant did not assert the statute of frauds in the trial court.
[*] See footnote, ante, page 277. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331401/ | 215 Ga. 799 (1960)
113 S.E.2d 628
LEDFORD
v.
THE STATE.
20791.
Supreme Court of Georgia.
Argued February 8, 1960.
Decided March 16, 1960.
Rehearing Denied March 16, 1960.
James I. Parker, Harold L. Murphy, D. B. Howe, for plaintiff in error.
Dan Winn, Solicitor-General, John T. Perren, Assistant Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, Deputy Assistant Attorney-General, contra.
CANDLER, Justice.
William Hoyt Ledford was indicted in Polk County for the murder of Virgil Glenn Gray, Jr. He was tried, convicted of the offense charged in the indictment without a recommendation for mercy, and was sentenced to be electrocuted. He moved for a new trial, basing his motion on the usual general grounds and subsequently amended it by adding several special grounds. His amended motion for new trial was denied, and the exception is to that judgment. Held:
1. Before being arraigned for trial, the defendant field a motion to quash the indictment on the ground that it was null and void because it was found and returned as true by the grand jury without sufficient evidence to authorize the charge contained therein. After hearing evidence in support of and against the motion, the court denied it, and one of the special grounds of the motion for new trial alleges that such judgment is erroneous and requires a reversal of the judgment refusing to grant a new trial. There is no merit in this position since this ruling cannot properly be raised in a motion for new trial; but such ruling, if insisted on, should have been directly excepted to in the bill of exceptions since it relates to an attack on the legal sufficiency of the indictment. Seymour v. State, 210 Ga. 21 (1) (77 S.E.2d 519), and the several cases there cited.
2. Special grounds 16, 22 and 23 of the motion for new trial have been expressly abandoned in the brief filed in this court for the plaintiff in error and for that reason they will not be considered.
3. Before the introduction of evidence began, the defendant invoked the rule of sequestration of the witnesses as provided for by Code § 38-1703. The solicitor-general then requested the court to permit Sergeant Bernard Young, a member of the Arkansas Police Department and witness for the State, to remain in the courtroom during the trial to assist him in the prosecution of the case, stating as his reason for such request that he (the witness) had participated in the investigation of the case more than any other officer. Whereupon counsel for the defendant, as his objection to the request, stated to the court, "We object to some Arkansas officer helping prosecute *800 this man." The request was granted by the court and this ruling is excepted to in one of the special grounds of the motion for new trial. Respecting the solicitor-general's request, the trial judge had discretionary power to grant or refuse it, and in the circumstances of this case we will not hold that he abused his discretion by permitting the witness Young to remain in the courtroom during the trial for the purpose of aiding the solicitor-general in the prosecution of the case. See Justice v. State, 213 Ga. 166 (97 S.E.2d 569), and the cases there cited which include Poultryland, Inc. v. Anderson, 200 Ga. 549, 562 (37 S.E.2d 785), where it was said by a full bench that "the rule as fixed by the Code of 1863 ( § 3787) and continued in all subsequent Codes, as to the sequestration of witnesses, conferred upon the party making such request an absolute right, subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case. . ." Accordingly there is no merit in this special ground.
4. The solicitor-general in outlining his case to the jury stated that he expected to prove by evidence that "the defendant was arrested in Oklahoma by Federal authorities on a complaint charging him with taking an automobile across the state line." At this point counsel for the defendant moved for a mistrial on the ground that the statement of the solicitor-general placed the character of the accused in evidence when he (the accused) had not first elected to do so. As to the motion for mistrial, the court said: "Gentlemen of the jury, counsel for the defendant has made a motion for a mistrial on account of certain remarks that counsel for the State made. I instruct you that counsel is merely making a statement of what he expects to prove in the case. That is not evidence until it is proven. You will disregard any statement with reference to any other crime, and consider only the evidence in this case and base your verdict thereon. What counsel states in his opening statement, or any statement, is merely what he contends is the evidence or reasonable deductions drawn therefrom. So, you will disabuse your minds of anything that has been said and not consider it in making your verdict, and in the last analysis you make your verdict based on the evidence in the case. I overrule the motion with that *801 explanation." In view of the court's instruction to the jury, we hold that he did not err in refusing to grant a mistrial. Hence the special ground which complains of this is not meritorious.
5. While the Sheriff of Polk County, John Redding, was testifying as a witness for the State, he was, over objection of the defendant, permitted to read to the jury a statement which the accused had dictated to him and which recites: "I have made this statement freely and voluntarily, without any hope of reward or benefit or fear of punishment" and the statement speaks of a trip north of Cedartown, Georgia, which the accused had made that day (October 16, 1958) with Sheriff Redding and it recites that the place to which they had gone together was the spot where Virgil Glenn Gray, Jr. was killed. It also recites that the place to which they went on that day was the spot about two miles north of Cedartown, Georgia, as mentioned in a written statement he (the accused) made to a certain officer in Oklahoma City, Oklahoma. The witness Redding testified that the written statement which the accused dictated to him was freely and voluntarily made, without any hope of reward or fear of punishment, and that the spot pointed out to him as being the place where the deceased Gray was killed was in Polk County, Georgia. The statement was signed by the accused and witnessed by Sheriff John Redding, Dan Winn and James H. Hines. The statement was objected to "on the ground that the subscribing witnesses . . . Dan Winn and James H. Hines have not identified the statement, neither has the State accounted for their absence." The statement was also objected to on the ground that the taking of it by Sheriff Redding without first apprising the defendant of his right to counsel was a denial of his right to have the assistance of counsel in violation of Article VI of the amendments to the Constitution of the United States and was also a denial of the privilege and benefit of counsel guaranteed by Article I, Paragraph V of the Constitution of Georgia. These objections are without merit, and the special grounds of the motion for new trial which complain of them show no error.
6. Weldon Gentry, a witness for the State, was permitted by the court to read to the jury a written statement which the accused made to him and another agent of the Federal Bureau *802 of Investigation, except the following part of it which the court ordered him not to read: "I was released from the Federal Prison, Atlanta, Georgia, on September 30, 1958. My number in prison was 76160, and I was doing five years for robbing a mail clerk of his pistol. After release. . ." The part thereof as read to the jury by the witness being: "I, Hoyt Ledford, give the following voluntary signed statement to Daniel J. Maloney and Weldon C. Gentry who have identified themselves to me to be Special Agents of the Federal Bureau of Investigation. I have been told I do not have to give or make a statement; that I am entitled to a lawyer; and that anything I say can be used against me in a court of law. My name is W. Hoyt Ledford, I am 43 years old and my residence is Chatsworth, Georgia. On 9-30-58, I went to the Piedmont Hotel in Atlanta and rented a room and told the bell boy to send a prostitute up to my room. Susan Jeffries came to my room. I later learned her name was Lorraine Stanga. She and I became friendly during the week of September 30, 1958, and I stayed at her apartment on Thursday and Friday nights of that week. During this week Stanga told me she was on parole from some city in Arizona on check charges and that she had a plan to make some money. Stanga stated to me that she had been dating a man named Virgil Glenn Gray who had an automobile and carried a big roll of money. She said we could rob and kill Gray, and take his car and he wouldn't be missed for some time as he was a traveling man. Stanga and I then planned for her to have a date with Gray on Saturday night October 4, 1958, in his car. After the date she was to bring Gray by her apartment where I would be waiting and we would then pull the robbery. On Saturday Gray called Stanga and they were to go to dinner at 5 or 6 p. m. Gray came by and Stanga went out to the car and got in before Gray had a chance to come in. Later in the evening Stanga called me at her apartment and said she and Gray would come to the apartment at about 9 p. m. At about 9 p. m. a car came up to the apartment and stopped. Stanga and Gray came in and I was hid behind the door. I had earlier in the evening purchased a 38-caliber revolver. As they came in I pulled this gun and told Gray to do as he was told and he wouldn't get hurt. Gray wheeled and drew back his fist and I hit him on the side of his head with the gun. We *803 then got in Gray's car. Stanga was driving, Gray was in the front seat and I was in the rear seat behind Gray. We drove out on a country road where we robbed Gray. I hit him once or twice on the head with my gun on the way out. After stopping the car, Stanga searched Gray's pockets on her side as we sat in the car and I searched his right side. He only had $21 which we took, along with his wallet, wrist watch and rings. We later threw the rings and watch away in streams we crossed. After searching Gray we opened the trunk lid and forced Gray to crawl in the trunk and we closed the lid. Before closing the trunk I hit Gray again with the gun and knocked him out. We then went to my room and picked up my luggage and clothing; went to her room where we also got Stanga's bags and clothes and started towards Cedartown, Georgia. In Cedartown a police car pulled alongside and told us our tail lights were out. Stanga told him she would stop at the next station and fix them. We could hear Gray moving in the trunk and he would moan every once in a while. Stanga remarked that we had better finish him off. Stanga pulled off on the shoulder of the road at a spot where there were no houses. She unlocked the trunk then took the keys and re-started the motor. She came back to the rear. I was going to use the 38 revolver but Stanga handed me a 25-caliber automatic and said I had better use it as it wouldn't make so much noise. She then grabbed Gray's head and turned it so that the side of the head was to me. I shot Gray twice in the head with the 25-caliber automatic. I handed this gun to Stanga and she put it in her purse. We then drove west through Tennessee and after driving the rest of Saturday night and all day Sunday we stayed at a tourist court in a small town in Arkansas near the Ozark Mountains. Stanga had told me there was many places in these mountains to hide the body. We turned off near some lakes and we drove on a dirt road over a mountain, White Mountain, I believe, and on a dirt side road after passing the crest of the mountain we pulled off and dumped the body of Gray. It took both of us to get the body out as rigor mortis had set in. We then drove to a town about 80 miles east of Oklahoma City where we stayed at a tourist court Monday night. Stanga had told me that she had a stepbrother named Cecil in Oklahoma City, so on Tuesday morning, October 7, 1958, we drove to Oklahoma *804 City. We went to his home but Cecil's wife said he was at work. We then went to a garage where Cecil works but he could not get off work till noon. I stayed in the car while Stanga went into the garage and talked to Cecil. We then drove around trying to locate a place to eat when we were arrested by the Bethany police. While on this trip at the tourist courts Stanga always went in and rented the room while I stayed in the car. Stanga always carried her 25-caliber automatic on this trip and I carried the 38-caliber revolver. Stanga drove and I rode in Gray's 1958 four-door Ford from College Park, Georgia, to Oklahoma City, Oklahoma, knowing this car to have been taken from Gray by force and without his permission. The above car bore 1958 Georgia license plate 20-8904. I have read the above statement consisting of seven handwritten pages, and it is true. I have initialed the first six pages and signed page seven. Signed W. Hoyt Ledford. Witnesses: Weldon C. Gentry, Special Agent, F. B. I., Oklahoma City, Oklahoma. Daniel J. Maloney, Special Agent F. B. I., Oklahoma City, Oklahoma. 10-8-58." Special ground 7 of the motion for new trial alleges that the court erred in not permitting the witness Gentry to read that part of the defendant's statement which is quoted above on the ground that it permitted an incomplete statement to go before the jury for their consideration and allowed the State's counsel to offer in evidence only such portion of the defendant's statement as they chose. We see no conceivable error in this: but even error without injury does not require the reversal of a judgment. Special ground 8 of the motion for new trial alleges that the court erred in overruling movant's motion for a mistrial which was made when the witness Gentry read to the jury the following portion of the above quoted statement, to wit: ". . . Stanga drove and I rode in Gray's 1958 four-door Ford from College Park, Georgia, to Oklahoma City, Oklahoma, knowing this car to have been taken from Gray by force and without his permission. The above car bore 1958 Georgia license plate 20-8904." His motion for a mistrial was based on the ground that this portion of his statement "was material, prejudicial and hurtful" to him because it placed his character in issue when he had not first elected to do so. Since the statement complained of in this special ground was made by the accused as a part of *805 his alleged confession, the contends of which the witness Gentry was reading to the jury, and as such was admissible, it afforded the accused no valid ground for his mistrial motion. Calhoun v. State, 210 Ga. 180 (78 S.E.2d 425); and Charlton v. State, 214 Ga. 778 (107 S.E.2d 840). "It is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense. Watts v. State, 8 Ga. App. 694 (2) (70 S.E. 46); Lampkin v. State, 145 Ga. 40 (88 S.E. 563); Swain v. State, 162 Ga. 777 (2) (135 S.E. 187)." Reed v. State, 197 Ga. 418 (6) (29 S.E.2d 505).
7. S. N. Gaston, a witness for the State, was permitted by the court to read a written statement which the accused made and signed in his presence on October 20, 1958, and which he (the witness), L. P. Moss and E. G. Pepper signed as witnesses, except the following part of it: "On September 30, 1958, I was discharged from the Federal penal system in Atlanta. I had received $90 or more from the prison. They sent me to the probation officer. I got this check, $825, and got it cashed. I then went back to the Piedmont Hotel. I got a bell boy and gave him a sales slip for my clothes to pick up by 4 p. m., for I had to report to the probation officer." The portion of the defendant's statement which the court permitted the witness Gaston to read to the jury over the defendant's objection, is in all material respects like that part of the defendant's statement which the State's witness Weldon Gentry read to the jury. As to that part of the defendant's statement which the witness Gaston read, the defendant's counsel made and urged the same objections to the reading of it which were made and urged to the statements which Sheriff John Redding and Agent Weldon Gentry were permitted to read, and since we have held that the court did not err in overruling them as to those two statements, we make the same ruling as to that portion of the defendant's statement which the witness Gaston read. Hence, the special grounds of the motion which complain of this are not meritorious.
8. Special grounds 17, 18 and 19 of the motion for new trial allege that quoted excerpts from the court's charge on the issue *806 of insanity are erroneous and require a reversal of the judgment refusing to grant the defendant a new trial. Special ground 17 alleges that the court had instructed the jury in this case that a person is not responsible for acts which would otherwise be criminal when he does not possess sufficient mental capacity to distinguish between right and wrong in relation to the act about to be committed by him, and that it was confusing, misleading, and therefore erroneous for the court to also give the following instruction: "The law does not attempt to measure the degree of insanity which renders a man or a woman legally irresponsible for his or her acts. That is a question of fact for you to determine." As authority for his contention respecting this special ground of the motion, movant cites and relies on Caison v. State, 171 Ga. 1 (154 S.E. 337); Geer v. State, 184 Ga. 805 (193 S.E. 776); Bryant v. State, 191 Ga. 686 (13 S.E.2d 820); and Reece v. State, 210 Ga. 578 (82 S.E.2d 10). In all of those cases a charge like the one here complained of was held to be erroneous for the reason, as there given, that the law does fix the degree of insanity which renders a person irresponsible for his acts, and the State's motion to review and overrule them is expressly denied. Accordingly, this special ground of the motion for a new trial is meritorious. Special grounds 18 and 19 complain about other portions of the court's charge on the subject of insanity but when the parts so complained of in these special grounds are considered in connection with the whole charge on that subject, we hold that they are not subject to the criticism lodged against them. Hence there is no merit in these two special grounds of the motion.
9. Under the facts of this case there is no merit in the contention that the court erred in charging on the law respecting confessions of guilt. Owens v. State, 120 Ga. 296, 299 (48 S.E. 21); Ford v. State, 202 Ga. 599 (4) (44 S.E.2d 263); Pressley v. State, 201 Ga. 267 (1) (39 S.E.2d 478); Weatherby v. State, 213 Ga. 188 (97 S.E.2d 698), and the cases there cited; Adsmond v. State, 47 Ga. App. 444, 447 (170 S.E. 525).
10. "It is only in cases where the State relies wholly on circumstantial evidence that Code § 38-109 must be charged without request." Gentry v. State, 208 Ga. 370 (2) (66 S.E.2d 913). In this case the State did not rely entirely on circumstantial evidence; and this is true since a confession of guilt is direct *807 evidence of the highest type. Harris v. State, 207 Ga. 287 (2) (61 S.E.2d 135). Hence there is no merit in special ground 27 of the motion for new trial.
11. The verdict is amply supported by competent evidence and has the approval of the trial judge; hence, there is no merit in the general grounds of the motion for new trial.
12. The remaining special grounds of the motion have been carefully examined and they are either without merit or raise questions which will not likely occur on another trial. Hence they will not be specifically dealt with in this opinion.
13. Only for the ruling made respecting special ground 17 of the amended motion is the judgment complained of erroneous.
Judgment reversed. All the Justices concur.
HEAD, Presiding Justice.
For the reasons stated in my dissenting opinions in Glustrom v. State, 206 Ga. 734 (58 S.E.2d 534), and Ramsey v. State, 212 Ga. 381 (92 S.E.2d 866), the motion for rehearing filed on behalf of the State, in my judgment, should have been stricken and disallowed as a part of the record in the present case. It must be conceded that there is neither constitutional nor statutory authority for the filing of a motion for rehearing on the part of the State in any criminal case in this court. The authority of this court to modify, revise, or vacate its judgments within the term is a power vested in the court that is not subject to limitation or expansion at the instance of the Attorney-General or any Solicitor-General of this State. The filing of a motion for rehearing on behalf of the State is not authorized by any concept that this court might, in some instance in the future, make an error in granting to a defendant a new trial. In the more than one hundred years of the existence of this court, no instance is cited wherein this court on its own motion, *808 or for any other cause, has ever vacated a judgment granting a defendant a new trial in a criminal case and substituted a judgment denying a new trial. I am authorized to say that Mr. Justice Almand and Mr. Justice Quillian concur in this view. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331584/ | 650 S.E.2d 775 (2007)
CROSBY
v.
The STATE.
No. A07A1159.
Court of Appeals of Georgia.
August 6, 2007.
*776 Lucas Oliver Harsh, for appellant.
Daniel J. Porter, District Attorney, Mya Whitmore-Hinton, Assistant District Attorney, for appellee.
BERNES, Judge.
A jury convicted James Curtis Crosby of three counts of theft by shoplifting. Following the denial of his motion for new trial, Crosby appeals, contending that there was insufficient evidence to convict him of the charged offenses; that the trial court should have granted his motion to sever the three counts; and that the trial court erred in limiting the cross-examination of two state witnesses. For the reasons discussed below, we affirm.
1. In reviewing Crosby's conviction, we construe the evidence in the light most favorable to the verdict of guilty. Adams v. State, 284 Ga.App. 534, 535(1), 644 S.E.2d 426 (2007). "As an appellate court, we do not weigh the evidence, judge the credibility of witnesses, or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id.
So viewed, the evidence adduced at trial reflects that Crosby was involved in three shoplifting incidents at three stores located in close proximity to one another on Grayson Highway in Gwinnett County. All three stores an Eckerd Drugs, a Blockbuster, and a Kroger, respectively were located near Crosby's residence. The first two shoplifting incidents occurred on October 1, 2004, whereas *777 the third incident occurred on October 14, 2004.
The October 1, 2004 Incidents. On the evening of October 1, 2004, Crosby entered the Eckerd Drugs on Grayson Highway. An assistant manager recognized Crosby because he had previously stolen an item from the store. The assistant manager notified the store manager, who followed Crosby down an aisle. As the manager approached Crosby, she noticed three empty cologne boxes on a rack and observed that Crosby was standing nearby attempting to conceal the cologne bottles under his shirt. The cologne boxes had security strips on them that would sound an alarm if they were taken out of the store, but the cologne bottles did not. After observing Crosby, the manager said, "I know that you are not going to take that" and indicated to Crosby that she was going to call the police department. Crosby walked up front to the register and placed the three cologne bottles that had been under his shirt on the counter. He attempted to present a receipt, but the receipt was from Wal-Mart. While the manager called the police department, Crosby left the store.
Law enforcement arrived at the Eckerd Drugs and obtained a physical description of Crosby from the manager. After canvassing the area, two officers quickly located Crosby in a parking lot about one half of a mile from the Eckerd riding a bicycle and carrying a plastic bag. When the officers approached him, Crosby said, "I guess they called the police on me." He admitted that he had just been at Eckerd, but denied that he had been attempting to steal the cologne. As Crosby spoke with the officers, the plastic bag he was carrying broke, and four video games fell out. The games were in their original boxes with security devices still on them and were stamped with an address for a Blockbuster on Grayson Highway, located approximately one quarter of a mile from the Eckerd. Crosby told the officers that he had purchased the games "on the street in Duluth."
After arresting Crosby for shoplifting at Eckerd, the officers took the video games to the Blockbuster store listed on the boxes and showed them to the store manager. The manager confirmed that the games were from his store. A computer check revealed that the games were still listed as available for renting. Additionally, the store manager remembered an individual matching Crosby's description leaving the store approximately 20 minutes before the officers had arrived. Crosby had come to the counter and had attempted to rent two games, but was not permitted to rent them because he did not have a valid membership. Crosby then had told the manager that he was going to go down the street and get his sister's membership card and would be back shortly. At that point, Crosby had left the store. No security detector went off, but the manager explained that would-be thieves could avoid sounding the detector if they surreptitiously held store items in a particular manner as they exited.
The October 14, 2004 Incident. In the same shopping center as the Blockbuster is a Kroger grocery store. On October 14, 2004, Crosby went inside the Kroger, appeared to do some shopping, and then stood in the checkout lane with a 24-pack of beer and three packs of razor blades. Without paying for the items, Crosby then backed out of the line, passed the cash registers, and walked out of the first set of exit doors into the vestibule area. An undercover security guard who had observed the entire incident stopped Crosby before he could exit the second set of doors into the parking lot. Crosby told the officer that he had forgotten his checkbook and was going to get it from his sister who was in a car outside the store. The officer escorted Crosby back into the store and arrested him.
Crosby subsequently was indicted on three counts of theft by shoplifting under OCGA § 16-8-14. That statute provides that
[a] person commits the offense of theft by shoplifting when he . . ., with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, . . . [c]onceals or takes possession of the goods or merchandise of any store or retail establishment.
OCGA § 16-8-14(a)(1). Count 1 of the indictment averred that Crosby took unlawful *778 possession of the three cologne bottles owned by Eckerd Drugs; Count 2 averred that he took unlawful possession of the four video games owned by Blockbuster; and Count 3 averred that he took unlawful possession of the beer and razor blades owned by Kroger. Crosby was tried before a jury and convicted on all three counts, and the trial court thereafter denied his motion for new trial.
On appeal, Crosby contends that there was insufficient evidence to convict him of any of the three counts of theft by shoplifting. We disagree.
As to Count 1, the Eckerd assistant manager and store manager both testified to what they observed as set out above, and their testimony provided sufficient evidence that Crosby concealed the cologne bottles with no intent to pay for them. This testimony was enough to sustain Crosby's conviction for theft by shoplifting, even though Crosby never took the cologne outside the store. See Simmons v. State, 278 Ga.App. 372, 372-373(1), 629 S.E.2d 86 (2006) (sufficient evidence supported shoplifting conviction where store employees observed defendant with alcohol bottles stuffed in his pants, and defendant was stopped before exiting); Racquemore v. State, 204 Ga.App. 88(1), 418 S.E.2d 448 (1992) (sufficient evidence supported shoplifting conviction where defendant concealed items in his clothes but placed them back on the shelf when store employees started to follow him).
Crosby argues that the evidence presented by the state failed to exclude every reasonable hypothesis of his innocence. His argument is misguided, however, because "the `reasonable hypothesis' rule relied upon by [Crosby], codified in OCGA § 24-4-6, applies only when the evidence against the accused was entirely circumstantial." (Citation, punctuation and emphasis omitted.) Meeks v. State, 281 Ga.App. 334, 337, 636 S.E.2d 77 (2006). Here, there was direct evidence supporting Crosby's conviction on Count 1, namely, the eyewitness testimony of the Eckerd manager that Crosby had the cologne bottles under his shirt. The reasonable hypothesis rule thus is not applicable to Count 1. See Fitzpatrick v. State, 271 Ga.App. 804, 805-806, 611 S.E.2d 95 (2005).
As to Count 2, one of the officers who discovered Crosby with the Blockbuster video games testified, as did the store manager who had observed Crosby in the Blockbuster store earlier that day. This testimony established that the video games had been taken from the store without being purchased; that Crosby entered the Blockbuster and left without making a purchase; and that Crosby was observed with the video games, still in their boxes with security devices attached, on his person approximately 20 minutes after leaving Blockbuster and in conjunction with his apprehension for shoplifting at the Eckerd. Although no one saw Crosby with the video games hidden on his person inside the Blockbuster or saw him exit the store with the games, the testimony of the officer and store manager provided sufficient circumstantial evidence to exclude every reasonable hypothesis of Crosby's innocence and thus to authorize his shoplifting conviction on Count 2. See Benn v. State, 244 Ga.App. 67, 68(1), 535 S.E.2d 28 (2000) (evidence that defendant had been observed in the store, that jackets in the store were discovered missing, and that defendant was observed outside the store with the jackets was sufficient to sustain shoplifting conviction); Agony v. State, 226 Ga.App. 330, 332(2), 486 S.E.2d 625 (1997) ("[U]nexplained recent possession of stolen goods supports an inference that the accused committed the theft.").
Crosby cites to Calhoun v. State, 213 Ga. App. 375, 444 S.E.2d 405 (1994) in support of his position that the evidence was insufficient as to Count 2. In Calhoun, we reversed a shoplifting conviction for insufficient evidence because the state had relied upon hearsay evidence, which had no probative value. See id. at 376-377(4)(a), 444 S.E.2d 405. In contrast, the testimony of the officer and Blockbuster store manager was based on personal knowledge and thus was competent evidence with probative value. Hence, Calhoun is distinguishable and provides no basis for reversal. See Russau v. State, 250 Ga.App. 717, 719(1), 552 S.E.2d 890 (2001).
Finally, as to Count 3, the undercover investigator working for Kroger testified about how he observed Crosby pass the cash *779 registers and exit through the first set of doors carrying the beer and razors without having paid for them. As was true with respect to Count 1, this eyewitness testimony was direct evidence sufficient to authorize Crosby's conviction on Count 3. See Simmons, 278 Ga.App. at 372-373(1), 629 S.E.2d 86; Racquemore, 204 Ga.App. at 88(1), 418 S.E.2d 448.
For these combined reasons, Crosby has failed to point to any basis for reversing his shoplifting convictions. While Crosby testified to an alternative version of events at trial, "[r]esolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court." (Citation and punctuation omitted.) Meeks, 281 Ga.App. at 336, 636 S.E.2d 77. Accordingly, we conclude that the evidence was sufficient to allow a rational trier of fact to conclude that Crosby was guilty beyond a reasonable doubt of all three counts of theft by shoplifting. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Crosby next argues that the trial court erred in denying his motion for severance of the three counts because the alleged crimes were joined solely because they were similar in character. We cannot agree.
[A] defendant has a right to severance where the offenses are joined solely on the ground that they are of the same or similar character because of the great risk of prejudice from a joint disposition of unrelated charges. However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique. In determining whether severance is necessary to achieve a fair determination of the defendant's guilt or innocence of each offense, the court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
(Citations and punctuation omitted.) Coats v. State, 234 Ga. 659, 662(4), 217 S.E.2d 260 (1975).
Here, all three of the shoplifting incidents occurred in commercial establishments in close proximity to one another on the same road. All three were near Crosby's residence. And, all three involved Crosby posing as an ordinary customer and at some point approaching the checkout line or register as part of an effort to either distract employees or make his actions appear legitimate in some manner. Furthermore, the Eckerd and Blockbuster shoplifting incidents occurred on the same day within an hour of one another. In turn, the Blockbuster and Kroger shoplifting incidents both involved Crosby referring to his sister as part of his criminal scheme. Finally, the evidence of the three offenses was not complex, and there is nothing in the record that would indicate that the jury could not distinguish the evidence or apply the law to each offense separately. Under these circumstances, the trial court did not abuse its discretion in denying Crosby's motion for severance. See Fields v. State, 283 Ga.App. 208, 210(1)(a), 641 S.E.2d 218 (2007) (trial court did not abuse discretion in denying severance motion, where offenses occurred in the same area in a short period of time and involved the defendant following the same pattern of conduct after entering the stores to carry out the offenses); Felder v. State, 260 Ga.App. 27, 29(2), 579 S.E.2d 28 (2003) (trial court did not abuse discretion in denying severance motion, where the offenses occurred within two months of each other and involved retail businesses near the defendant's residence).
3. Crosby asserts that the trial court improperly limited his cross-examination of two state witnesses, the Eckerd manager and the Blockbuster manager. "Although each party has a right to a thorough and sifting cross-examination of the other party's witnesses, such right is not unfettered, and a trial court may restrict the scope of cross-examination to the issues, and its exercise of discretion will not be interfered with on appellate review unless manifestly abused." (Punctuation and footnote omitted.) Howell v. State, 278 Ga.App. 634, 639(3), 629 S.E.2d *780 398 (2006). We discern no manifest abuse of discretion in this case.
(a) The Eckerd Manager. Crosby contends that the trial court manifestly abused its discretion by preventing him from cross-examining the Eckerd manager about the manner in which the store determined how much loss it incurs as a result of shoplifting and the rate of loss at that particular store. Crosby's contention notwithstanding, the record reflects that he was able to ask the Eckerd manager multiple questions about how losses were determined for that store as well as the rate of loss on a weekly and monthly basis. The state raised an objection, which was sustained by the trial court, only after Crosby had gone through several questions about the loss issue and then asked the manager what the highest loss was that the store had ever incurred. Thus, Crosby was able to raise the loss issue before the jury, but was prevented by the trial court from turning what clearly was at best a peripheral issue into a central one. Under these circumstances, the trial court did not manifestly abuse its discretion. See Holloway v. State, 283 Ga.App. 823, 825, 643 S.E.2d 286 (2007).
(b) The Blockbuster Manager. Crosby similarly contends that the trial court manifestly abused its discretion in preventing him from cross-examining the Blockbuster manager about the general rate of theft at his store. Crosby argues that this issue was relevant to the case because if there was a high rate of theft at the store, it would have bolstered his argument that someone else took the video games at issue and that he merely purchased the games from another person. Even if the Blockbuster had a high rate of theft, however, it "had no bearing on the identity of the person" who committed this particular theft. Skaggs v. State, 278 Ga. 19, 21-22(3), 596 S.E.2d 159 (2004) (generalized statistical evidence concerning fatal traumatic brain injuries was irrelevant to whether the defendant committed the particular homicide at issue). As to the ultimate issue of whether Crosby or a third party stole the video games, evidence as to the rate of theft at the Blockbuster would simply offer no assistance. In any event, even assuming that the evidence as to the rate of theft was relevant, it was only marginally so. The trial court thus acted within its discretion in preventing questioning on this issue. See Holloway, 283 Ga.App. at 825, 643 S.E.2d 286; Howell, 278 Ga.App. at 639(3), 629 S.E.2d 398.
Judgment affirmed.
BLACKBURN, P.J., and RUFFIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331600/ | 650 S.E.2d 45 (2007)
In the Matter of N.G.
No. COA07-369.
Court of Appeals of North Carolina.
September 18, 2007.
E. Marshall Woodall and Duncan B. McCormick, Lillington, for petitioner-appellee Harnett County Department of Social Services.
Sofie W. Hosford, for respondent-appellant mother.
Lisa Skinner Lefler, Wilmington, for respondent-appellant father.
Elizabeth Myrick Boone, Sanford, for guardian ad litem.
ELMORE, Judge.
On 24 October 2005, the Harnett County Department of Social Services (DSS) filed a juvenile petition alleging that N.G. was a neglected child. DSS claimed that N.G. was not receiving proper medical care due to respondents' desire to conceal the child's existence from DSS. DSS alleged that respondents concealed the pregnancy and birth of the child due to the family's history with the agency. Specifically, DSS noted that respondents' parental rights had been terminated with respect to their first child, and that their second child was in DSS custody. DSS further stated that respondents' first child, L.G., sustained injuries associated with "shaken baby syndrome" and that the injuries were deemed non-accidental. Respondents' second child was removed based on the assessment that the home environment being assessed as injurious to the child's welfare. DSS alleged that N.G. also lived in an environment injurious to her welfare due to the significance of L.G.'s injuries, respondents' lack of cooperation with DSS, and their inability to take responsibility or explain L.G.'s injuries. A non-secure custody order was entered and N.G. was removed from respondents' home.
An adjudicatory and dispositional hearing was held on 20 September 2006. On 30 January 2007, the trial court entered the written adjudicatory and disposition order. The trial court found that N.G. was a neglected juvenile in that she lived in an environment injurious to her welfare. The trial court awarded custody to DSS, concluded that reunification would be futile, and ceased visitation. Respondents appeal.
I.
Respondents first argue that adjudicatory findings of fact numbers 5, 7, 9, 10, 12, 18, 24, 25, and 27, as well as dispositional findings of fact numbers 5, 6, 7, 8, and 9, are contrary to the evidence presented. Respondents further challenge the trial court's adjudicatory conclusions of law.
"Allegations of neglect must be proven by clear and convincing evidence. In a non-jury neglect adjudication, the trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings." In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997) (citations omitted).
In findings of fact numbers 5 and 7, the trial court found that N.G. lived in an environment injurious to her welfare because she was allowed to live in a home where an older sibling had been subjected to abuse and respondents had not adequately addressed the conditions that led to the abusive acts. Further, the trial court found that L.G. suffered physical injuries by other than accidental means while in respondents' care. The court then listed L.G.'s many injuries, including *48 intracranial injuries, skull fractures, fractured ribs, and fractured tibias. In finding of fact number 9, the trial court found:
The rib injuries . . . were consistent with being caused by direct impact or from forceful squeezing or compression of her ribs. The injuries to her tibias were likely caused by forceful twisting or torques of those bones. The head injuries were caused by [L.G.] being shaken violently and/or from a forceful impact to her head.
Respondents contend that petitioner failed to present clear, cogent, and convincing evidence that either respondent caused the injuries. However, in the order terminating respondents' parental rights to L.G., the trial court made almost identical findings, and found that L.G. was "an abused child in that she suffered physical injuries by other than accidental means while in the care of her parents." "The doctrine of collateral estoppel operates to preclude parties `from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination.'" In re Wheeler, 87 N.C.App. 189, 194, 360 S.E.2d 458, 461 (1987)(quoting King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)). Therefore, respondents are estopped from denying responsibility for L.G.'s injuries.
Respondents next challenge findings made by the trial court relating to their cooperation with DSS and completion of their case plan. In finding of fact number 12, the trial court found that respondents failed to cooperate with DSS and made no progress on taking steps to improve their parenting skills. In findings of fact numbers 23 and 24, the trial court found that respondents "failed to make reasonable progress on improving their parenting skills and abilities" and had "not engaged in treatment services as ordered by the court and have continued to deny any responsibility for the injuries involving the older sibling . . . or acknowledge any wrongdoings involving that child." In dispositional finding of fact number 6, the trial court found that respondents had failed to cooperate with the various social workers and failed to fully cooperate with family service plans, and that respondents had failed to take responsibility for L.G.'s injuries and blamed others for the injuries without any reliable evidence to support their claims. In dispositional finding of fact number 7, the trial court found that respondents were "directed . . . to participate in the Family PRIDE Program to include individual counseling or therapy for each parent by a therapist approved by DSS and the [guardian ad litem]."
Respondents assert that they made efforts at cooperating with social workers and complying with their case plan. Respondents note that prior orders of the court allowed them to participate in "comparable" programs approved by DSS and the guardian ad litem. Respondents contend that they sought approval of alternative programs and attended these programs, but that their attempts at gaining approval of these programs were ignored. Finally, respondent-mother argues that she should not be faulted for refusing to admit that she injured the older sibling, noting that she has steadfastly maintained her innocence and is not required to prove her innocence.
We find respondents' arguments unpersuasive. Maria Mucciacciaro, a DSS social worker, testified that she met with respondents and specifically told them that the classes they were taking would not be accepted as an alternative to the Family PRIDE program. Mucciacciaro testified that DSS was aware of the program attended by respondents, and that although she and her supervisor reviewed the program, "[they] did not feel that this program would be a good program for [respondents], nor did [they] feel like there would be any success rate with it." Among the reasons stated by Mucciacciaro were that the program attended by respondents did not do drug testing, there were concerns whether the teacher of the class was qualified, and the program was not as "in-depth" a program in comparison to the PRIDE program.
Furthermore, as we have noted, respondents are estopped from arguing that they were not responsible for L.G.'s injuries. Dr. Sharon Cooper testified that:
If you have a parent who is unable ever to acknowledge culpability with respect to the severe injuries that a previous child has *49 had, as is the case in this circumstance, the risk for injury of subsequent infants is significantly elevated, and it is for that particular reason according to the literature, if a person has shaken a baby once, their risk for re-injury is 77 percent, three out of four times. They must come to an understanding that shaking the infant is causing the infant harm.
Therefore, we conclude that there was clear, cogent, and convincing evidence in the record to support the trial court's adjudicatory findings of fact numbers 12, 23 and 24, and dispositional findings numbers 6 and 7.
In finding of fact number 18, the trial court found that respondents "refused (discouraged) to allow home visitation by the social worker after August 2005." Similarly, in finding of fact number 25(iv), the court found that "[h]ome visits were discouraged by the mother." We find sufficient evidence in the record to support the trial court's findings. Mucciacciaro testified that in June, 2005, she attempted to set up a home visit with respondents but was told that "it wasn't convenient." Mucciacciaro offered to come "after regular hours," but was again told that it "wasn't convenient." Mucciacciaro finally asked if there was any time that she could come, and was told, "No, it's not convenient." Similarly, in August, 2005, Mucciacciaro attempted to set up home visits, and respondents told her, "It's a bad week. . . ." Again, Mucciacciaro offered to visit after regular hours, but respondents continued to tell her it was a "bad week." Mucciacciaro testified that "I don't think I was ever able to schedule a visit home visit after that."
In finding of fact number 25(iii), the trial court found that respondents were "consisitently [sic] 15 minutes late to the visitations over the last several months for the announced reason that traffic had made them late." We find sufficient evidence in the record to support the trial court's finding. A DSS court report stated that while respondents attended all visitations, "over the last several months they are consistently on average 15 minutes late to the visitations, most of the time saying that traffic had made them late." Additionally, Mucciacciaro testified that respondents consistently visited N.G., but were "late some." Moreover, respondent-father admitted at the hearing that they were late for visits because they had to drive from New Jersey.
Respondents additionally challenge dispositional finding of fact number 5, in which the trial court stated that it had "reviewed the exhibits offered by the parents but [did] not find the same to be credible on the issue of the juvenile's safety and best interest." Respondent-mother contends that the evidence was competent, and that she "cannot determine on what basis these exhibits were not `credible'. . . ." We hold that the trial court did not err. It is the "judge's duty to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom." In re Whisnant, 71 N.C.App. 439, 441, 322 S.E.2d 434, 435 (1984) (citation omitted).
In finding of fact number 27, the trial court found that DSS "was unable to exercise further efforts to prevent the filing of the petition herein and placement of the juvenile in care was necessary for the protection and safety of the juvenile." Similarly, adjudicatory conclusion of law number 3 states that DSS was "unable to prevent placement of the juvenile into out of home care, and the filing of the petition was necessary to protect the juvenile and the placement of the juvenile in care could not be prevented." Respondents contend that N.G. was being appropriately cared for and removal was not necessary for her protection. We disagree. As we have noted, respondents' arguments regarding L.G.'s injuries are not persuasive. Furthermore, Dr. Cooper testified that respondents' failure to acknowledge culpability for L.G.'s injuries put N.G. at risk of injury. When combined with the fact that respondents did not cooperate with DSS and failed to improve their parenting skills, the evidence supports the trial court's finding of fact and conclusion of law.
In dispositional findings of fact 6, 8, and 9, the trial court found that a plan of reunification would be futile, custody should be awarded to DSS, and visitation should be terminated. Respondent-mother renews her *50 contention that her unwillingness to admit causing L.G.'s injuries should not result in the cessation of reunification efforts. Respondent-mother also argues that she should not be faulted for DSS's refusal to approve alternative programs. Respondent-mother finally asserts that the trial court should have considered a kinship placement. We find respondent-mother's arguments unpersuasive. The question of fault for L.G.'s injuries is not before this court. Moreover, DSS presented evidence that these alternative programs were not comparable.
The trial court also did not err by declining a kinship placement. DSS completed kinship assessments with all relatives suggested by respondents. Indeed, the record shows that "all suggested kinship placements have been exhausted." Family placement was inappropriate because the family members did not believe that N.G. was in need of protection, and relative placement would therefore not ensure the child's safety. Accordingly, because competent evidence in the record supports the trial court's findings of fact and conclusions of law, the assignments of error are overruled.
II.
Respondents next argue that the trial court erred by adjudicating N.G. a neglected juvenile. Respondent-mother argues that the trial court erred in adjudicating N.G. neglected based solely on L.G.'s injuries in the absence of clear, cogent and convincing evidence that respondents inflicted the injuries. Respondent-father argues that the trial court must be reversed because the evidence on probability of neglect is insufficient. Respondents both assert that N.G. was found to be healthy and well-cared for when removed from their home.
After careful review of the record, briefs, and contentions of the parties, we affirm. In an abuse, neglect, and dependency case, review is limited to the issue of whether the conclusion is supported by adequate findings of fact. Helms, 127 N.C.App. at 511, 491 S.E.2d at 676. "Neglected juvenile" is defined in N.C. Gen.Stat. § 7B-101(15) as:
A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen.Stat. § 7B-101(15)(2005). Section 7B-101(15) affords "the trial court some discretion in determining whether children are at risk for a particular kind of harm given their age and the environment in which they reside." In re McLean, 135 N.C.App. 387, 395, 521 S.E.2d 121, 126 (1999). "In cases of this sort [involving a newborn], the decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case." Id. at 396, 521 S.E.2d at 127.
The question of responsibility for L.G.'s injuries is not currently before us. Moreover the trial court adopted as fact testimony that there is a high rate of recidivism where parents do not acknowledge culpability for the injuries a child incurred while in their care. The trial court then found that respondents continued to deny responsibility for L.G.'s injuries. Therefore, the findings relating to the prior adjudication of neglect and subsequent termination of parental rights as to L.G. and respondents' failure to comply with their case plan, when combined with respondents' failure to acknowledge culpability for L.G.'s injuries, support the conclusion that N.G. was a neglected juvenile based on the high risk of future abuse or neglect. See In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005) (affirming adjudication of neglect where respondent violated court-ordered protection plans and failed "to take responsibility for harm that befell her children as a result of her conduct"); McLean, 135 N.C.App. at 396, 521 S.E.2d at 127 (noting that substantial risk of future neglect must be based on the historical facts of the case).
*51 We acknowledge that the fact of prior abuse, standing alone, is not sufficient to support an adjudication of neglect. Indeed, this Court recently held that although evidence of prior abuse or neglect is a relevant factor worthy of consideration, the doctrine of collateral estoppel permits the trial court to rely on only those findings of fact from prior orders that "were established by clear and convincing evidence." In re A.K., 178 N.C.App. 727, 731, 637 S.E.2d 227, 229 (2006).
However, this case is easily distinguished from In re A.K. In that case, "the trial court did not accept any formal evidence in addition to its consideration of the prior court orders concerning [the child previously removed from the home], and the only order concerning [the child previously removed from the home] that contained findings by the clear and convincing standard of proof was from a hearing occurring many months earlier." Id. at 732, 637 S.E.2d at 230. In this case, the trial court also addressed (1) respondents' failure to participate in the PRIDE program, (2) respondents' attempts to hide the fact of the mother's pregnancy, (3) respondents' failure to inform DSS with a change of address, (4) respondents' continued refusal to accept responsibility for L.G.'s injuries, (5) respondents' failure to participate in anger management classes, (6) respondents' consistent tardiness to visits, (7) respondents' attempts to discourage home visits from DSS, and (8) evidence on recidivism rates. The cumulative weight of this evidence is sufficient to support an adjudication of neglect. Accordingly, we find that the trial court did not err by adjudicating N.G. a neglected juvenile.
III.
Respondents next argue that the evidence and findings of fact do not support that the trial court's conclusion of law that reunification efforts should cease and that visitation should be terminated. We are not persuaded.
N.C. Gen.Stat. § 7B-507(b) states that:
In any order placing a juvenile in the custody or placement responsibility of a county department of social services, whether an order for continued nonsecure custody, a dispositional order, or a review order, the court may direct that reasonable efforts to eliminate the need for placement of the juvenile shall not be required or shall cease if the court makes written findings of fact that:
(1) Such efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time.
N.C. Gen.Stat. § 7B-507(b)(2005). The trial court may "only order the cessation of reunification efforts when it finds facts based upon credible evidence presented at the hearing that support its conclusion of law to cease reunification efforts." In re Weiler, 158 N.C.App. 473, 477, 581 S.E.2d 134, 137 (2003). "This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition." In re C.M., ___ N.C.App. ___, ___, 644 S.E.2d 588, 594 (2007). "At the disposition stage, the trial court solely considers the best interests of the child. Nonetheless, facts found by the trial court are binding absent a showing of an abuse of discretion." In re Pittman, 149 N.C.App. 756, 766, 561 S.E.2d 560, 567 (2002) (citations and quotations omitted). "An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision." In re Robinson, 151 N.C.App. 733, 737, 567 S.E.2d 227, 229 (2002) (citations and quotations omitted).
Here, the trial court found in dispositional finding of fact number 6 that:
DSS has been involved with the respondent parents since 2001 when their first child was placed into protective custody. They have failed to cooperate with the various social workers and failed to fully comply with family service plans. They did not make reasonable efforts at reunification *52 in their first child's care. Although they entered into a service agreement (updates) with their second child, they have not met the goals outlined in the service plans within a reasonable time. They concealed their third child from DSS and expressly failed to tell the truth about the possible pregnancy. The parents have not recognized appropriate responsibility or involvement in the injuries to their first child. They deny responsibility or involvement with the injuries but placed the blame for the injuries on others without any reliable evidence being produced. They refused an appropriate course of treatment to obtain parental education, supervision, instruction and behavioral counseling. There has not been an adequate attempt on their behalf to cooperate with a safety plan to assure the juvenile's safety. Their lack of candor, truthfulness and cooperation further complicates the issue of the juvenile's safety if placed with the parents.
As discussed previously, we have concluded that dispositional finding of fact number 6 was supported by clear, cogent, and convincing evidence in the record. We further conclude that the finding supports the trial court's conclusion that reunification efforts would be futile.
Respondents further contend that the trial court erred by ceasing visitation. "This Court reviews the trial court's dispositional orders of visitation for an abuse of discretion." In re C.M., ___ N.C.App. at ___, 644 S.E.2d at 595. In light of the historical facts of the case, respondents' failure to accept responsibility for L.G.'s injuries, their failure to cooperate with DSS and comply with their case plan, and the trial court's conclusion that reunification efforts should cease, we hold that the trial court's decision to cease visitation was not manifestly unsupported by reason. Accordingly, we hold that the court did not abuse its discretion in finding it to be in the best interests of the juvenile to cease reunification efforts and visitation.
Affirmed.
Judge McGEE concurs.
Judge TYSON dissents by separate opinion.
TYSON, Judge dissenting.
The majority's opinion holds that: (1) DSS presented clear, cogent, and convincing evidence to support the trial court's findings of fact and conclusions of law; (2) the trial court did not err by adjudicating N.G. to be a neglected juvenile; and (3) the trial court did not abuse its discretion in finding reunification efforts to be futile and that it was in N.G.'s best interests to cease reunification efforts and visitation with respondents. I disagree and respectfully dissent.
I. Adjudicatory Hearing
A. Standard of Review
The trial court's and our standard of review is well established.
The first stage [of juvenile abuse, neglect, and dependency actions] is the adjudicatory hearing. If DSS presents clear and convincing evidence of the allegations in the petition, the trial court will adjudicate the child as an abused, neglected, or dependent juvenile. If the allegations in the petition are not proven, the trial court will dismiss the petition with prejudice and, if the juvenile is in DSS custody, returns the juvenile to the parents.
In re A.K., 360 N.C. 449, 454-55, 628 S.E.2d 753, 757 (2006) (internal citations omitted).
During the adjudicatory phase, the court takes evidence, makes findings of fact, and determines the existence or nonexistence of grounds for termination. N.C. Gen.Stat. § 7B-1109(e) (2005). The burden of proof rests upon DSS in this phase, and the court's findings must be based on clear, cogent, and convincing evidence. N.C. Gen.Stat. § 7B-1109(f) (2005).
The standard of review on appeal is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether its conclusions of law are supported by its findings of fact. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. rev. denied and appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001). *53 "This intermediate standard is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases." In re Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). "The trial court's `conclusions of law are reviewable de novo on appeal.'" In re D.M.M., 179 N.C.App. 383, ___, 633 S.E.2d 715, 716 (2006) (quoting In re D.H., 177 N.C.App. 700, 703, 629 S.E.2d 920, 922 (2006)).
B. Analysis
Adjudicatory findings of fact numbered 5 and 27 are not supported by clear, cogent, and convincing evidence. In re A.K., 360 N.C. at 454-55, 628 S.E.2d at 757.
The trial court's adjudicatory finding of fact numbered 5 states:
[N.G.] has lived in an environment injurious to her welfare when she was allowed to live in a home where another child [L.G.] had been subjected to abuse and neglect by an adult who regularly lives in that home without that adult having received adequate treatment of the condition which led to the abusive acts upon the older sibling.
(Emphasis supplied).
If DSS makes no showing that neglect has continued at the time of the hearing, evidence of changed circumstances must be considered "in light of the evidence of prior neglect and the probability of a repetition of neglect." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). Here, DSS made no showing of any neglect of N.G. prior to or at the time of the hearing and respondents have proved they made reasonable efforts and received "adequate treatment" to alleviate the conditions that led to N.G.'s removal from their home. Id.
N.G. was healthy and uninjured when she was removed from respondents' home and placed into DSS's care at two months of age. All allegations of neglect were derived and solely based upon another child having been previously removed from respondents' home.
Respondents completed parenting, domestic violence, and anger management classes after L.G. was removed from the respondents' home. Respondents moved to New Jersey in September 2005 and have been commuting to North Carolina for their weekly visits with N.G. since that time. Respondents have not missed any scheduled visits. Adjudicatory finding of fact numbered 5 is not supported by clear, cogent, and convincing evidence. The evidence clearly compels a contrary finding.
The trial court's adjudicatory finding of fact numbered 27 states, "[DSS] was unable to exercise further efforts to prevent the filing of the petition herein and placement of the juvenile in care was necessary for the protection and safety of the juvenile."
No family services case plan was established for N.G. The case plan cited by the trial court in its adjudicatory order pertained to J.G., respondents' second child. This case plan was established prior to DSS obtaining custody of N.G. The record shows DSS made no attempt to implement or restate this case plan for N.G.
The case plan for J.G. states that "[respondents] shall participate in Pride program or other comparable program[s] in Cumberland Co. or other area program upon consultation with DSS [and Guardian ad Litem]." (Emphasis supplied). DSS claimed that all other programs were not comparable because, inter alia, those programs did not require random drug testing. No allegations were made and no evidence was shown of any drug abuse by either of respondents. Respondents were not required by the case plan or order to submit to random drug testing. Respondents were unable to participate in the Family PRIDE program due to scheduling conflicts of that program with respondent-father's work schedule.
DSS refused to respond to suggestions and requests to review multiple alternative agencies and providers whose programs would allow respondents to maintain employment. Undisputed evidence shows respondents submitted two written requests for DSS to review listed programs as "comparable" substitutes for the Family PRIDE Program. The first request, dated 10 November 2005, listed *54 fourteen agencies and providers conducting parenting and anger management classes. The second request, dated 7 December 2005, listed eleven additional possible programs. No evidence in the record shows DSS ever reviewed or responded to any of respondents' requests.
Respondents attended and successfully completed parenting, domestic violence, and anger management classes as required by J.G.'s case plan with Multicultural Community Development Services, a parenting and family development center. While DSS never deemed Multicultural Community Development Services to be a "comparable" provider, the record shows DSS never made any attempt to advise or help respondents find an alternative program that did not conflict with respondent-father's employment; and consequently, respondents' ability to maintain housing and basis of support for their family. Adjudicatory finding of fact numbered 27 is not supported by clear, cogent, and convincing evidence. The evidence clearly compels a contrary result and admonition to DSS to consult, respond, and cooperate with respondents on alternative treatment programs.
Reviewed de novo, the trial court's adjudicatory conclusions of law numbered 2 and 3 state:
2. [N.G.] is a neglected as defined by N.C. Gen.Stat. 7B-101(15) because the juvenile has been allowed to live in an environment injurious to the juvenile's welfare.
3. [DSS] was unable to prevent placement of [N.G.] into out of home care, and the filing of the petition was necessary to protect [N.G.] and the placement of [N.G.] in care could not be prevented.
Since adjudicatory findings of fact numbered 5 and 27 are not supported by clear, cogent, and convincing evidence, these findings cannot support the trial court's conclusions of law. Under de novo review, the trial court's conclusions of law are not supported by the findings of fact based upon clear, cogent, and convincing evidence and are error. The trial court's unsupported conclusions and adjudication of N.G. to be a neglected juvenile should be reversed.
II. Dispositional Hearing
Because the trial court's adjudicatory findings of fact do not support its conclusions of law, the trial court's dispositional order must also be reversed. Presuming, as the majority's opinion holds, that the trial court's conclusions of law are supported by the findings of fact and its conclusions and adjudication of N.G. to be a neglected juvenile should be affirmed, the trial court also erred when it ordered further reunification efforts would be futile and ceased respondents' visitation.
We have recognized the constitutional protection afforded to family relationships. See In re Webb, 70 N.C.App. 345, 350, 320 S.E.2d 306, 309 (1984) ("[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition." quoting Moore v. City of East Cleveland, 431 U.S. 494, 503-04, 97 S.Ct. 1932, 52 L.Ed.2d 531, 540 (1977)). The purposes and policies of the Juvenile Code recited under N.C.G.S. § 7B-100 are applicable to permanency planning hearings.
The trial court's findings and conclusions were not supported by the evidence, did not consider changed conditions, and did not recognize that the purpose of the Juvenile Code is "return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents." See N.C. Gen.Stat. § 7B-100(4).
In re Eckard, 148 N.C.App. 541, 547, 559 S.E.2d 233, 236-37 (emphasis supplied), disc. rev. denied, 356 N.C. 163, 568 S.E.2d 192 (2002). Respondents informed DSS of their alternate compliance with J.G.'s case plan and provided the trial court with undisputed evidence of the treatment they received and completed. Respondents made diligent efforts to remedy the causes that led to N.G.'s removal. Respondents cannot be limited by DSS to a single source service provider whose program schedule conflicts with and jeopardizes respondent-father's employment and means of support. J.G.'s case plan expressly allows for "other comparable program[s]" and "other area program[s]." DSS never responded to two distinct written requests *55 to review or recommend alternative plans or service providers. The trial court erred when it ordered that reunification efforts would be futile and that visitation cease.
III. Conclusion
N.G. was healthy and unharmed when DSS removed her from respondents' home. No case plan was established or restated for N.G. No clear, cogent, and convincing evidence supports the trial court's adjudicatory findings of fact that "[N.G.] lived in an environment injurious to her welfare. . . ." and the "placement of [N.G.] in care was necessary for [her] protection and safety. . . ." No evidence exists and no finding of fact was made that any alleged neglect continued at the time of the hearing.
Under de novo review, the trial court's findings of fact are not supported by clear, cogent, and convincing evidence, and these findings do not support the conclusions of law that "[N.G.] is a neglected as defined by N.C. Gen.Stat. 7B-101(15). . . ." and "the filing of the petition was necessary to protect [N.G.]. . . ." The trial court's adjudicatory order should be reversed.
Because the trial court erred in entering its adjudicatory order, it also erred in concluding at disposition that "[t]he development of a plan of reunification of the child with the parents would be futile" and "[f]urther parental visitation should be ceased." Respondents drove from New Jersey to visit N.G. and never missed a weekly visitation. The trial court's dispositional order should be reversed.
N.C. Gen.Stat. § 7B-100(4) (2005) requires DSS to assist respondents and presumes reunification of N.G. with her parents will occur. DSS failed to respond to respondents' repeated requests to review alternative programs with schedules that would not jeopardize respondent-father's employment and failed to overcome the statutory presumption of reunification. Respondents made substantial progress toward alleviating the conditions that led to N.G.'s removal from respondents' home. No evidence was presented to support the conclusion that further efforts to reunify N.G. with her parents would be futile. I vote to reverse the trial court's order and respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331603/ | 285 S.E.2d 369 (1981)
Ralph Dewayne CLARK, etc., In the Interest of.
No. 15263.
Supreme Court of Appeals of West Virginia.
December 11, 1981.
*370 Spencer P. Simpson and Nelson R. Bickley, Charleston, for Clark.
James E. Roark, Pros. Atty., and Frances W. McCoy, Asst. Pros. Atty., Charleston, for State.
NEELY, Justice:
This is a statutory appeal from a juvenile transfer hearing. The defendant below, Ralph Dewayne Clark, was arrested and charged with first degree murder. A preliminary hearing was subsequently held and the juvenile referee found probable cause to believe that the defendant had committed the crime with which he was charged.
A motion to waive juvenile jurisdiction was then made by the State pursuant to W.Va.Code, 49-5-10(a) [1978]. At a transfer hearing held in the circuit court the juvenile referee testified that he had conducted a preliminary hearing where he found probable cause to believe the defendant had committed the crime of murder. A city detective testified that he had investigated the death of an elderly black female and that as a result of his investigation murder charges were brought against the defendant. After hearing this evidence, the court entered an order granting the motion to transfer the case to criminal jurisdiction.
W. Va.Code, 49-5-10(d) [1978] provides that a circuit court may transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that the juvenile has committed the crime of murder. See, State ex rel. Cook v. Helms, No. 15189 (W.Va. July 7, 1981). In this case there was no evidence at the transfer hearing upon which the court could have relied to determine whether there was probable cause. There were conclusory statements by witnesses; however, none of the circumstances surrounding the alleged crime which would link the defendant to it were introduced. It is not sufficient under the juvenile transfer statute for the court to rely upon conclusions of the juvenile referee. The trial judge himself must make an independent determination upon substantive facts that probable cause exists.
Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), upon which the State relies, does not foreclose our result in this case. In Breed, a juvenile petition was filed against the respondent in that case for committing what would have been the crime of robbery if committed by an adult. An adjudicatory hearing to determine whether the juvenile committed a criminal act was subsequently held; at the conclusion of testimony the court sustained the petition. At a transfer hearing held some days later, the juvenile's case was ordered transferred to criminal jurisdiction. The State then attempted to prosecute the juvenile as an adult and he objected raising a claim of double jeopardy. The United States Supreme Court held that jeopardy attached at the adjudicatory hearing where evidence was taken and the purpose was to establish guilt. The Court therefore held that the juvenile's subsequent prosecution in the criminal court violated the Double Jeopardy Clause of the Fifth Amendment.
The statutory scheme for the disposition of juvenile cases in California differs from that in this State. As we pointed out in State ex rel. Smith v. Scott, W.Va., 238 S.E.2d 223, 226-227 (1977):
*371 "... Breed does not preclude the juvenile court from fulfilling its duties during a transfer hearing, and the fact that the juvenile court hears facts surrounding the commission of the alleged offense does not mean that the hearing becomes adjudicatory so as to invoke the principle of Breed."
Accordingly, the judgment of the Circuit Court of Kanawha County is reversed and the case is remanded with directions to hold a proper transfer hearing.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/717270/ | 82 F.3d 424
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Dean L. PETERSON, Defendant-Appellant.
No. 95-30163.
United States Court of Appeals, Ninth Circuit.
Submitted March 26, 1996.*Decided April 1, 1996.
1
Before: GOODWIN, WIGGINS, and O'SCANNLAIN Circuit Judges.
2
MEMORANDUM**
3
Dean L. Peterson appeals his conviction following a guilty plea to conspiracy to distribute cocaine base and conspiracy to possess with intent to distribute over five grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Peterson contends that his guilty plea was involuntary because he feared serving the maximum penalty if he proceeded to trial. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, United States v. Alber, 56 F.3d 1106, 1111 (9th Cir.1995), and affirm.
4
A defendant has no legal right to withdraw his guilty plea. Id. However, the district court may use its discretion to allow a defendant who demonstrates a "fair and just reason" to withdraw his guilty plea before sentencing. See Fed.R.Crim.P. 32(d); Alber, 56 F.3d at 1111. Fair and just reasons for withdrawing a guilty plea include inadequate Rule 11 proceedings, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea. See United States v. Turner, 898 F.2d 705, 713 (9th Cir.), cert. denied, 495 U.S. 962 (1990); United States v. Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir.1987). We have consistently rejected the defendant's change of heart and unsupported protests of innocence as fair and just reasons for withdrawal. See Turner, 898 F.2d at 713; Rios-Ortiz, 830 F.2d at 1069.
5
Here, Peterson contends that his guilty plea was not voluntary and intelligent because he was afraid when he entered the plea. Peterson admitted his guilt under oath at the Rule 11 hearing. During the sentencing hearing, Peterson described his crimes to the court, in detail, admitted guilt again, apologized for his actions, and stated that being sentenced would be a valuable lesson for him. Peterson does not challenge the adequacy of the Rule 11 proceeding or allege any other fair and just reason for withdrawal. Therefore, his change of heart and unsupported protestations of innocence do not warrant withdrawal of his guilty plea. See Turner, 898 F.2d at 713; Rios-Ortiz, 830 F.2d at 1069.
6
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1331604/ | 650 S.E.2d 728 (2007)
BECK
v.
The STATE.
Davis
v.
The State.
Nos. A07A0017, A07A0018.
Court of Appeals of Georgia.
July 12, 2007.
Certiorari Denied October 9, 2007.
*729 Steven M. Harrison, Eastman, for appellant (case no. A07A0018).
Smith & Cannon, Chester L. Cannon, Jr., for appellant (case no. A07A0018).
Timothy G. Vaughn, District Attorney, for appellee.
SMITH, Presiding Judge.
Greg Beck and Bruce Davis were convicted of possession of marijuana with the intent to distribute and possession of cocaine with the intent to distribute. Both men appeal, arguing that the evidence was insufficient to establish that they possessed cocaine with the intent to distribute, and that the trial court should have granted their motion to suppress because the search warrant was not signed by a proper magistrate. Beck also contends that the trial court erred in failing to recharge the jury on equal access and in considering his prior convictions at sentencing. Finding no error, we affirm.
1. Beck and Davis both contend that the State presented insufficient evidence of their *730 intent to distribute cocaine.[1] Beck also contends that the State failed to "connect [him] to the premises" or establish that he controlled or possessed the drugs found.
On appeal, we view the evidence in the light most favorable to the verdict, and we no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses' credibility, but determine only if the evidence is sufficient to sustain the convictions. Campbell v. State, 278 Ga. 839, 840(1), 607 S.E.2d 565 (2005). We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury's verdict. Id.
Viewed in that light, the evidence at trial established that a confidential informant made a controlled buy of marijuana from Beck at his mother's house under observation of officers with the Oconee Drug Task Force. Based on information obtained during the buy, the officers obtained a search warrant for the house. When the officers executed the warrant, they found Beck lying in the doorway of the master bedroom. Davis was lying on top of a bag of marijuana in the master bedroom. Other bags of marijuana were scattered throughout the bedroom, and more marijuana was in a soft cooler under the bed. The officers also found a bag of crack cocaine on the floor near the dresser. In the kitchen, they found two sets of digital scales on top of the refrigerator along with an empty box of plastic freezer bags and a box of plastic sandwich bags. A forensic chemist with the Georgia Bureau of Investigation crime lab testified that the bag found in the cooler contained nineteen ounces of marijuana and that the bag found on the bedroom floor contained 5.39 grams of cocaine, consisting of five individually wrapped pieces. The police found $1,466 in cash on Beck's person, including a $10 bill used in the controlled buy that took place the day before the search warrant was executed.
(a) On appeal, Beck and Davis argue that the evidence was insufficient to prove cocaine possession with intent to distribute. "To support a conviction for possession with intent to distribute, OCGA § 16-13-30(b), the state is required to prove more than mere possession." (Citation and footnote omitted.) Helton v. State, 271 Ga.App. 272, 275(b), 609 S.E.2d 200 (2005). But "[n]o bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute." (Citation and footnote omitted.) Harper v. State, 285 Ga.App. 261, 265(1)(b), 645 S.E.2d 741 (2007). In McNair v. State, 226 Ga.App. 516, 487 S.E.2d 100 (1997), we noted that "[w]e have considered various kinds of additional evidence as proof of intent to distribute," including scales, packaging, and the possession of particular amounts or denominations of currency, as well as "expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use." (Citations and punctuation omitted.) Id. at 517(1), 487 S.E.2d 100.
Here, in contrast to McNair, in which the only evidence was unqualified testimony that the amount of drugs was consistent with distribution, officers found a large amount of cash on Beck's person, including a recorded bill used in the controlled buy, as well as scales, plastic baggies, and scattered bags of drugs, including five individually wrapped pieces of cocaine. In addition, a police officer testified that scales are used by drug dealers to weigh narcotics. An expert need not be formally tendered where the court accepts the expert's qualifications. Lindley v. State, 225 Ga.App. 338, 341(1), 484 S.E.2d 33 (1997). Here, not only did defense counsel make no objection, he acquiesced in and relied upon the witness's expert status in his cross-examination by eliciting the officer's testimony that scales "are used to weigh amounts of narcotics."
The evidence, though not overwhelming, was sufficient to support the charge of possession of cocaine with intent to distribute. See Copeland v. State, 273 Ga.App. 850, 853-854(2), 616 S.E.2d 189 (2005) (electronic *731 scale, small plastic baggies, $2,600 in cash, and only 1.5 grams of cocaine provided sufficient evidence of possession with intent to distribute cocaine); Jackson v. State, 251 Ga.App. 781, 783(2)(a), 555 S.E.2d 136 (2001) (sufficient evidence to support possession with intent to distribute where defendant admitted he "had been a drug dealer for several years" and officers found a total of 2.1 ounces of marijuana in ten bags, scales, and a box of plastic baggies). Compare Parris v. State, 226 Ga.App. 854, 856, 487 S.E.2d 690 (1997) ("Where no additional evidence of intent to distribute is offered, such as scales, drug paraphernalia, large amounts of cash, division of drugs into individual packages, or a prior conviction of possession with intent to distribute, the expert testimony is critical, and the conviction cannot be sustained without it.").
(b) Beck additionally argues that the evidence was insufficient to establish his connection with the premises or with the drugs. But testimony established that he lived in the house and sold drugs at that location to the confidential informant, and a marked bill from the controlled buy was found on his person. "Possession of drugs may be joint or exclusive, and actual or constructive. Where drugs are found in the immediate presence of a defendant, a jury is authorized to find that the defendant has constructive possession of the drugs." (Citations omitted.) Lawrence v. State, 238 Ga. App. 102, 103(1), 517 S.E.2d 822 (1999). This evidence was ample to connect Beck with both the location and the contraband.
2. Beck and Davis next contend that the trial court erred in denying their motion to suppress, arguing that the search warrant was invalid because the individual who signed it was not qualified to serve as a magistrate and also was not properly appointed.
At the hearing on the motion to suppress, the Dodge County Magistrate testified that after he took office on January 3, 2005, the county administrator told him he could have a part-time assistant. At the end of February 2005, the chief magistrate hired Denae Douglas to assist him, and she was sworn in in early March. On June 2, 2005, when the Drug Task Force officer submitted the search warrant application in question, the chief magistrate was sick at home, and Douglas called him there and read the warrant application to him over the telephone. The magistrate directed Douglas to sign the warrant, because he thought she was properly sworn in as a deputy magistrate.
Douglas, however, was not qualified to serve as a magistrate because she was younger than the minimum age requirement of 25, as set out in OCGA § 15-10-22(a). The chief magistrate did not remember if he had entered the magistrate's oath on the minutes of the superior court. Although he believed he had reported her appointment, because she was receiving training materials, he did not know whether Douglas was issued a commission under seal from the governor's office, as required by OCGA § 15-10-3, subsections (b)(1) and (3). The clerk of court testified that no entry of an oath for Douglas appeared in the minute book, and that no certification was sent to the Administrative Office of the Courts. Nevertheless, the trial court denied the motion to suppress, finding that the chief magistrate acted in good faith in appointing Douglas, that Douglas acted as a de facto magistrate, and that her act of issuing the search warrant in this case was valid.
In concluding that Douglas was a de facto magistrate, the superior court applied a long line of authority reaching back at least to Hinton v. Lindsay, 20 Ga. 746 (1856) (actions of justice of peace were not void although his residence in another district technically vacated his office). In Hinton, the court defined an officer de facto as "one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law; one who acts by color of an appointment, but is not in all respects legally qualified." Id. at 746, hn. 4. The validity of a de facto officer's acts is so well-settled that it is embodied in the Code as part of OCGA § 45-2-1 (the acts of a person ineligible to hold public office "shall be valid as the acts of an officer de facto").
The defendants argue that Douglas could not act as an officer de facto for two reasons: no office of deputy magistrate existed, and *732 even if it did, Douglas was not qualified to hold it. Relying on the principle that "`[e]very public office is the creation of some law, either statutory or constitutional in its origin,' [cit.]," Porter v. Calhoun County Bd. of Commrs., 252 Ga. 446, 447(1), 314 S.E.2d 649 (1984), defendants argue that no evidence established that the judges of the Dodge County Superior Court had authorized additional magistrate positions, as required by OCGA § 15-10-20(a). But the Georgia Supreme Court has held that "the acts of an officer de facto cannot be attacked collaterally," but only directly in a proceeding challenging the officer's validity. Pool v. Perdue, 44 Ga. 454, 457-458(2) (1871); see also Hinton, supra, 20 Ga. at 750. In Pool, the appellant challenged the validity of an attachment because the Georgia Constitution authorized only one notary public and ex officio justice of the peace per militia district, the jurisdiction contained only four militia districts, and the attachment was issued by an officer commissioned after four such officers already existed. Id. at 456. While the Supreme Court agreed that there could be only one legal justice of the peace per militia district, it affirmed the second justice's actions as a de facto official in the absence of an actual office. Id. at 458. "[A]s a de facto officer [Douglas's] acts cannot be collaterally attacked and set aside. [Cit.]" Little v. State, 157 Ga.App. 462, 463(2), 278 S.E.2d 17 (1981).
The fact that Douglas was not old enough to serve as a magistrate or that other statutory prerequisites were unfulfilled likewise does not invalidate the search warrant.
[E]ven assuming irregularities exist concerning the position of the magistrate, we conclude the magistrate was an officer de facto and that her acts while sitting as magistrate, including the issuance of the search warrant in question, are valid. [Cits.]
McLendon v. State, 259 Ga. 778, 779(2), 387 S.E.2d 133 (1990). "[T]he fact that a person is ineligible to hold a particular office, or has failed to take an oath, does not prevent that person from being an officer de facto, and while de facto in such office, competent to act therein. [Cits.]" Freeman v. State, 172 Ga. App. 168(1), 322 S.E.2d 289 (1984). The trial court did not err in denying the motions to suppress.
3. Beck contends that the trial court erred in failing to recharge the jury on the doctrine of equal access when it asked a question during deliberation about the types of possession. The trial court recharged the jury on sole and joint possession and actual and constructive possession. Beck then objected to the court's failure to recharge on equal access. We find no error. "Equal access is merely a defense available to the accused to whom a presumption of possession flows." Lance v. State, 191 Ga.App. 701, 703(2), 382 S.E.2d 726 (1989). The record contains no evidence of access to the premises by anyone other than the defendants, only evidence that Beck and Davis jointly possessed the drugs, actually or constructively, and a charge on equal access was not required. See Jones v. State, 200 Ga.App. 519, 520(2)(b), 408 S.E.2d 823 (1991).
4. Finally, Beck argues that the trial court erred in considering his prior guilty pleas during sentencing as a recidivist, because the State failed to establish that he voluntarily waived his right to counsel. But "the burden in non-death penalty cases is on the recidivism defendant rather than the State to prove by a preponderance of the evidence that a previous guilty plea was not knowingly and voluntarily entered." (Citation and footnote omitted.) Nash v. State, 271 Ga. 281, 519 S.E.2d 893 (1999). Because Beck failed to make this showing, the trial court did not err in considering his two prior guilty pleas during sentencing.
Judgment affirmed.
BARNES, C.J., and MILLER, J., concur.
NOTES
[1] Neither defendant challenges the sufficiency of the evidence to show possession of marijuana with the intent to distribute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331610/ | 650 S.E.2d 767 (2007)
HICKS
v.
The STATE.
No. A07A1796.
Court of Appeals of Georgia.
August 3, 2007.
Douglas R. Woodruff, Ringgold, for appellant.
Herbert E. Franklin Jr., District Attorney, for appellee.
BLACKBURN, Presiding Judge.
Following a jury trial, Ernest Hicks appeals his conviction for possessing a firearm while a convicted felon.[1] His sole enumeration *768 is that the trial court erred in denying his motion to suppress certain evidence found in a warrantless search of his home. We agree that under the Fourth Amendment, no exigent circumstances justified the police's warrantless search of Hicks's entire residence after they had handcuffed him and placed him outside the residence under the watchful eye of an officer. Their failure to obtain a warrant invalidates the subsequent search and compels us to reverse his conviction, which was obtained based on the discovery of a shotgun under his bed during this search. The case is remanded for a new trial, in which the illegally-obtained evidence may not be introduced.
"On reviewing a trial court's ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment. The court's findings of fact will not be disturbed if there is any evidence to support them." (Punctuation and footnote omitted.) Owens v. State.[2] See Tate v. State.[3] We consider evidence from both the motion to suppress hearing and the trial. White v. State.[4]
So construed, the evidence shows that one night, Hicks's neighbor called police when someone at Hicks's residence fired two shots from a shotgun toward the neighbor's house. Police arrived 15 minutes later and learned from the neighbor that Hicks had also fired shots some weeks earlier and had threatened the neighbor in a letter. Knowing that Hicks was a convicted felon and that he had previously had violent altercations with police, the officers went to Hicks's residence and spoke to Hicks (the home's only occupant), who denied shooting any guns and also denied possessing any guns. Hicks consented to the officers' searching his residence.
During the search, the officers found two spent shotgun shells on the top of the garbage in the kitchen trash can. At this point, Hicks, who was in the kitchen, revoked his consent for the search. The officers handcuffed Hicks and placed him outside the residence, where one officer stood near him to keep watch over him. After calling a supervisor, the other officer re-entered the residence and began a second search (over Hicks's objection) of the entire residence, which yielded a shotgun (found under the bed in the bedroom), a box of unspent shotgun shells, and some loose unspent shotgun shells.
Indicted on one count of possessing of a firearm by a convicted felon, Hicks moved to suppress the evidence obtained during the second search. Following an evidentiary hearing, the trial court denied the motion, finding that exigent circumstances (Hicks's firing of a gun and previous threats) justified the warrantless search. A jury found Hicks guilty, and the trial court denied Hicks's motion for new trial, giving rise to this appeal.
1. Arguing that we should not consider the merits of the motion to suppress, the State contends that the motion was filed two months after arraignment and was therefore untimely under OCGA § 17-7-110. See State v. Gomez[5] (untimely motion to suppress subject to dismissal). However, nowhere in the record nor at the hearing on the motion to suppress below did the State in any way raise this issue or object to the motion on this basis. Compare id. at 424, 597 S.E.2d 509 and State v. Serio[6] (in both the issue of timeliness was raised below). "The [S]tate waived its right to object to the timing or manner in which the motion . . . was brought by failing to object to the motion at the time it was heard." State v. Evans.[7] See State v. Lucas[8] (State's failure *769 to object below waives matter for appellate review). The State's failure to object is particularly significant in light of the express provision in OCGA § 17-7-110 allowing the trial court to extend the time for filing; had the State objected, the court could well have granted such an extension.
2. With regard to the merits of Hicks's motion to suppress, "[i]t is axiomatic that, under the Fourth Amendment, police officers are prohibited from entering a person's home or its curtilage without a warrant absent consent or a showing of exigent circumstances." State v. Pando.[9] See State v. Nelson[10] ("[a]bsent exigent circumstances or consent, an entry into a private dwelling to conduct a search . . . is unreasonable without a warrant") (punctuation omitted). Because Hicks revoked his consent prior to the second search, see Montero v. State[11] (defendant may withdraw consent to search), the question before us is whether evidence supported the trial court's finding of exigent circumstances.
"An exigent circumstance which does justify the warrantless entry of a private home is the officer's reasonable belief that such action is a necessary response on his part to an emergency situation." (Punctuation omitted.) Owens, supra, 236 Ga.App. at 535, 512 S.E.2d 394. The exigent circumstance forwarded by the State here (and believed by the trial court) was that the second search was necessary to protect the officers and the neighbor from danger in light of Hicks, a known felon with a history of violence and threats against his neighbor and with a history of altercations with the police, having two spent shells in his kitchen only minutes after two shots were fired from his residence toward the neighbor's home. See State v. Ealum[12] ("Exigent circumstances include emergency situations where the warrantless entry is justified to protect or preserve life or to avert serious injury") (punctuation omitted).
This finding of exigency ignores the uncontroverted evidence that before the second search began, police had taken Hicks outside his residence, handcuffed him, and placed an armed officer as a continuous watch over him. Indeed, in light of these security measures taken by police, the officer who watched over Hicks testified: "After he was handcuffed[,] he was not a threat." The officer stated further that "at the time [police] made the decision to continue part two of the search[, Hicks] was not a threat," since he was handcuffed, had no weapon, was under continuous watch, was outside the house, and presented no danger. See Ealum, supra, 283 Ga.App. at 802, 643 S.E.2d 262. (no exigent circumstances where one of the officers "explicitly testified that there was no reason to believe that anybody was in danger") (punctuation omitted).
The handcuffing of a weaponless Hicks and the police's placement of him outside the house under the continuous watchful eye of an armed officer removed any exigent circumstances involving danger to the officers or the public, for Hicks could no longer access any weapons inside the home. Indeed, we have previously held that handcuffing a car's driver and securing his keys "dispelled the exigent circumstances," McKinney v. State,[13] as there was "no earthly way" the driver could present a danger of accessing contraband or weapons in the car. Hardwick v. State.[14] See State v. Duncan[15] ("there were no exigent circumstances" where "the driver was arrested, handcuffed, and the keys secured"). See also Phillips v. *770 State.[16] Similarly, the Supreme Court of Georgia has held that where a home's occupants were placed in a police car, no exigent circumstances of danger (through access to the weapons in the home) existed to justify a subsequent warrantless search of the home. Satterfield v. State.[17] Thus, Satterfield concluded that "[t]he introduction of the shotgun [found during the search] was error." Id. See Davis v. State[18] (where child was outside residence containing contraband, no warrantless entry was justified by the need to protect or preserve life or avoid serious injury). Compare Gilreath v. State[19] (heavy odor of gasoline emanating from residence combined with view of body therein justified warrantless entry).
As an alternative, the State argues that the search was justified as a search incident to an arrest. See OCGA § 17-5-1(a) ("When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within the person's immediate presence . . ."). However, even assuming Hicks was arrested in his kitchen (despite the officer's testimony that he was only detained) before he was taken outside, "[a] search of the bedroom was not justified as incident to the arrest," as the bedroom was certainly not an area within his immediate presence at the time of his arrest. (Punctuation omitted.) Brannon v. State.[20] See Lentile v. State[21] (arrest in one room of house does not justify warrantless search of entire house for contraband). Thus, this alternative argument also fails.
For these reasons, no evidence supported the trial court's finding of exigency. We are therefore constrained to hold that the trial court erred in denying Hicks's motion to suppress the evidence found during the second search. "Accordingly, [Hicks's] conviction . . . must be reversed, and [Hicks] is entitled to a new trial on this charge." Threatt v. State.[22] See Welchel v. State.[23]
Judgment reversed.
RUFFIN and BERNES, JJ., concur.
NOTES
[1] OCGA § 16-11-131(b).
[2] Owens v. State, 236 Ga.App. 534, 535, 512 S.E.2d 394 (1999).
[3] Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994).
[4] White v. State, 263 Ga. 94, 98(5), 428 S.E.2d 789 (1993).
[5] State v. Gomez, 266 Ga.App. 423, 424-425(1), 597 S.E.2d 509 (2004).
[6] State v. Serio, 257 Ga.App. 369, 371(2)(a), 571 S.E.2d 168 (2002).
[7] State v. Evans, 187 Ga.App. 649, 651(2), 371 S.E.2d 432 (1988), overruled on other grounds, State v. Smith, 268 Ga. 75, 76, n. 7, 485 S.E.2d 491 (1997).
[8] State v. Lucas, 265 Ga.App. 242(1), 593 S.E.2d 707 (2004).
[9] State v. Pando, 284 Ga.App. 70, 72(1)(a), 643 S.E.2d 342 (2007).
[10] State v. Nelson, 261 Ga. 246, 247(2)(b), n. 1, 404 S.E.2d 112 (1991).
[11] Montero v. State, 245 Ga.App. 181, 184, 537 S.E.2d 429 (2000).
[12] State v. Ealum, 283 Ga.App. 799, 802, 643 S.E.2d 262 (2007).
[13] McKinney v. State, 155 Ga.App. 930, 932(1), 273 S.E.2d 888 (1980), overruled on other grounds, 184 Ga.App. 607, 610(2), 362 S.E.2d 65 (1987).
[14] Hardwick v. State, 149 Ga.App. 291, 293(4), 254 S.E.2d 384 (1979), overruled on other grounds, McKinney, supra, 184 Ga.App. at 610(2), 362 S.E.2d 65 (1987).
[15] State v. Duncan, 253 Ga.App. 830, 831, 560 S.E.2d 720 (2002).
[16] Phillips v. State, 233 Ga. 800, 802, 213 S.E.2d 664 (1975).
[17] Satterfield v. State, 256 Ga. 593, 597(4), 351 S.E.2d 625 (1987).
[18] Davis v. State, 262 Ga. 578, 582-583(3), 422 S.E.2d 546 (1992).
[19] Gilreath v. State, 247 Ga. 814, 821(1), 279 S.E.2d 650 (1981).
[20] Brannon v. State, 231 Ga.App. 847, 849, 500 S.E.2d 597 (1998).
[21] Lentile v. State, 136 Ga.App. 611, 613-614(1), 222 S.E.2d 86 (1975).
[22] Threatt v. State, 240 Ga.App. 592, 597(1), 524 S.E.2d 276 (1999).
[23] Welchel v. State, 255 Ga.App. 556, 560, 565 S.E.2d 870 (2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1643927/ | 4 So.3d 1233 (2009)
MILLS
v.
STATE.
No. 2D07-3846.
District Court of Appeal Florida, Second District.
March 18, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2213959/ | 50 Cal.App.2d 854 (1942)
THE PEOPLE, Respondent,
v.
CLARENCE E. WARREN, Appellant. [50 Cal.App.2d 855]
Crim. No. 3543.
California Court of Appeals. Second Dist., Div. Two.
Feb. 26, 1942.
John S. Cooper for Appellant.
Earl Warren, Attorney General, for Respondent.
Memorandum
THE COURT.
December 23, 1941, the transcripts on appeal were filed in this court. Thereafter, the time for filing briefs having elapsed, an order to show cause why the appeal should not be dismissed was issued, returnable February 25, 1942. On the latter date there was no appearance on behalf of appellant, either by briefs or otherwise.
Therefore, pursuant to the provisions of section 1253 of the Penal Code, the judgment and the order denying motion for new trial are, and each is, affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331618/ | 650 S.E.2d 580 (2007)
McKENNA et al.
v.
CAPITAL RESOURCE PARTNERS, IV, L.P. et al.
No. A07A0342.
Court of Appeals of Georgia.
June 25, 2007.
Reconsideration Denied July 27, 2007.
Certiorari Denied October 9, 2007.
*581 Brown & Shamp, Laura M. Shamp, Atlanta, for appellants.
Powell Goldstein, Daniel G. Ashburn, Seyfarth Shaw, Matthew N. Foree, Charles W. Ingraham, Atlanta, for appellees.
BARNES, Chief Judge.
The appellant-plaintiffs are minority shareholders in Loyaltyworks.[1] They sued the company and its majority shareholder Capital Resource Partners, IV, L.P. (CRP) to enforce a verbal settlement agreement. The defendants denied reaching an agreement, contending that any agreement had to be in writing to be binding. Loyaltyworks also counterclaimed against plaintiff Rorke on a promissory note he had signed in exchange for exercising his option to buy stock in the company. The trial court granted summary judgment to the appellee-defendants on the main complaint, and to Loyaltyworks on its counterclaim against Rorke. Because we conclude that questions of fact exist regarding whether the parties reached an agreement, we reverse the trial court as to both grants of summary judgment.
On appeal we review the trial court's grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Preferred Real Estate Equities v. Housing Systems, 248 Ga.App. 745, 548 S.E.2d 646 (2001). On appeal of the grant or denial of a motion for summary judgment, this court conducts reviews of the law and the evidence de novo. Overton Apparel v. Russell Corp., 264 Ga.App. 306, 307, 590 S.E.2d 260 (2003). Further, the court cannot resolve the facts or reconcile the issues when deciding whether summary judgment should be granted. Fletcher v. Amax, Inc., 160 Ga.App. 692, 695, 288 S.E.2d 49 (1981).
Viewed in this light, the record shows that the plaintiffs hired attorney Everette Doffermyre in late 2003 to investigate whether they should sue Loyaltyworks and its two majority shareholders, CRP and Equity-South Partners, L.P., for breach of fiduciary duty. The minority shareholders believed that these entities refinanced the company to dilute their minority shares below two percent, thus rendering them unable to force the company to disclose its financial records. Even before this "downround financing," the plaintiffs had received little or no communication from Loyaltyworks, had no input into company decisions, and did not know how the company was doing financially. Loyaltyworks' board of directors would not pursue offers to buy the company in 2002, because it said the company was not for sale. Although Loyaltyworks had issued options at $2 per share in February 2002, it refinanced the company at 26 cents per share in December 2002. Rorke also wanted to return the 100,000 shares of Loyaltyworks stock he obtained in 2000 when he executed his options at $1 per share and cancel his $100,000 note which was paid for and was secured by that stock.
Doffermyre talked to Loyaltyworks' lawyer, Marc Gustafson, in October 2003 to discuss his clients' claims that the company and its majority shareholders had breached their fiduciary duty, then sent him an offer to settle, indicating that his clients would release their claims if the company bought their shares for a specific amount and cancelled *582 Rorke's $100,000 note. Loyaltyworks' lawyer responded that the company would put together a counterproposal, but then in February 2004, Loyaltyworks' CEO replied that it could not accept the offer because doing so would render the company insolvent.
Stephen Jenks then sent a letter on February 24, 2004, to some of the minority shareholders, offering to buy their stock in Loyaltyworks for a specific price, "contingent upon execution of a mutually acceptable purchase agreement, . . . and neither [the shareholder] nor CRP shall be under any legal obligation unless and until the purchase agreement is executed." Jenks is Loyaltyworks' former chairman of the board and one of the three managing partners of CRP, which is Loyaltyworks' majority shareholder. Each plaintiff testified that he or she was not interested in negotiating a simple stock sale individually with Jenks, which Loyaltyworks' former CEO said she could have done on her own. Instead, they wanted to deal with all of their claims against Loyaltyworks for breach of fiduciary duty, as Doffermyre had already tried to do directly with the company.
Doffermyre's clients told him about the letter, and Doffermyre contacted Jenks to continue the discussions he had begun with Loyaltyworks' lawyer regarding his clients' claims against the company, because Jenks appeared to be someone who was willing "to go beyond" a stock sale and resolve the anticipated lawsuit. When asked if the plaintiffs had authorized him to act on their behalf in responding to this letter, Doffermyre said no, he had already been authorized to act from the time they initially hired him. Doffermyre said he called Jenks because he "appeared . . . to be a fruitful person to talk to about trying to resolve the litigation that I had been engaged to bring." He was a board member, a potential defendant, and had expressed an interest in buying stock from Doffermyre's clients, which Doffermyre thought they could "go beyond." If all his clients were going to do was sell their stock, they did not need Doffermyre; they wanted more than that.
Doffermyre testified that when he first talked to Jenks, Jenks said he was "interested as an investor in buying your clients' shares." Doffermyre asked, "Are you saying you're not interested in negotiating a resolution of claims but just wanted to buy their shares and not obtain a global resolution?" Jenks responded, according to Doffermyre. "No, you're right. I too want a resolution." Doffermyre offered to settle all claims for $2.6 million; Jenks countered he was willing to pay $900,000, but would talk to "his folk" and get back to Doffermyre. Jenks then e-mailed Doffermyre that he was "willing to amend my initial offer" for total consideration of $971,171, or $71,171 more than he previously offered. Doffermyre counter-offered; and Jenks counter-offered again with his "best and final offer." While the defendants argue that the language in Jenks' e-mail about amending his offer "explicitly" refers to the letter he sent to the shareholders, it could as easily refer to the first offer he made to Doffermyre.
Doffermyre accepted that "final" offer contingent upon Loyaltyworks cancelling Rorke's note, because some of the stock Rorke proposed to return to the company was secured by the note. Jenks e-mailed the other directors on Loyaltyworks' board that he had a verbal agreement to buy the plaintiffs' stock, cancel the note, and secure releases from all parties, listing the note cancellation as a "related topic." One of the members responded, "You have our support." The next day, Loyaltyworks' CFO emailed Jenks, confirming Rorke's share numbers and stating that their lawyer was "working up the Board consent for the forgiveness of the Rorke note." The next day, Jenks left Doffermyre a voicemail stating that they had an agreement and that his lawyer would send him a written agreement with release language for his review.
Two days later, CRP's lawyer contacted Doffermyre to begin drafting the agreement documents, and two weeks later sent a draft "Security Purchase Agreement" to him. Loyaltyworks' lawyer also sent Doffermyre a draft of a "Notice and Waiver of Right of First Refusal and Right of Co-Sale," which provided that CRP had notified Loyaltyworks of its verbal agreement to buy the shares held by the plaintiffs, and a draft *583 "Note Cancellation Agreement and Lost Stock Affidavit." Doffermyre edited the securities purchase agreement and returned it to CRP's lawyer.
The next day, Doffermyre had "a pleasant conversation" with Loyaltyworks' lawyer regarding the note cancellation agreement and lost stock certificate. Thirty minutes later, CRP's lawyer called Doffermyre and said that Jenks had changed his mind and did not want to go through with the deal because the company's financial performance was "not what it had been hoped to be." This suit followed.
The trial court granted summary judgment to the defendants, finding that CRP had clearly indicated before reaching the verbal agreement that it did not intend to be bound before executing a written agreement, and finding that the parties had disagreed on material terms. Because of these findings, the trial court also granted summary judgment to Loyaltyworks on its counterclaim on Rorke's note.
The appellant-shareholders contend on appeal that the trial court erred (1) in finding that CRP's offer was contingent upon the parties executing a written purchase agreement; (2) in finding that the parties had not agreed to all material terms; and (3) in finding that Rorke's note had not been cancelled. They assert that genuine issues of material fact exist as to all three issues, which should be tried by a jury.
1. The first issue is whether a factual dispute exists regarding whether any agreement was contingent upon the parties executing a written agreement. Although generally contract disputes may be well suited for summary judgment adjudication because construction of contracts is ordinarily a matter of law for the court, "in this instance the [first] significant issue is not the contract's construction, but whether the contract existed at all as a matter of fact. `The construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact.' OCGA § 13-2-1." Terry Hunt Constr. v. AON Risk Svcs. etc., 272 Ga.App. 547, 551(3), 613 S.E.2d 165 (2005).
In determining whether there was a mutual assent, courts apply an objective theory of intent whereby one party's intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party's manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent. [Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395, 297 S.E.2d 733 (1982)].
(Punctuation omitted.) Legg v. Stovall Tire & Marine, 245 Ga.App. 594, 596, 538 S.E.2d 489 (2000).
Further,
in cases such as this one, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement. Where such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.
(Citations and punctuation omitted.) Terry Hunt Constr. v. AON Risk Svcs., supra, 272 Ga.App. at 552(3), 613 S.E.2d 165.
In other words, would a reasonable party have understood, based on CRP's letter to the shareholders offering to buy their stock, that CRP did not intend to be bound by any verbal agreement regarding the settlement of the plaintiffs' breach of fiduciary duty claims before the execution of a written contract? The facts in the record establish a jury question regarding this issue. If the plaintiffs had responded to Jenks' offer to buy the stock and had negotiated only that sale, then clearly they would have been bound by Jenks' terms of the offer which included the writing requirement. The record shows, however, that the plaintiffs did not respond to Jenks' offer to buy their shares, but instead directed Doffermyre to continue negotiations to settle their claim that Loyaltyworks had breached its fiduciary duty to them. That claim involved more than merely the stock sale, but also releases of their claims and the cancellation of Rorke's note.
*584 Doffermyre argues that he was continuing the negotiations he started with Loyaltyworks. CRP contends that it never relinquished the writing requirement it had established with the shareholders. Based on the evidence, at least an issue of fact exists as to whether a reasonable person would have understood that CRP did not intend to be bound before signing a document. The writing requirement was included only in Jenks' individual offers to each minority shareholder to buy their stock. All of the shareholders testified that they were not interested in pursuing those individual offers, because they wanted to resolve their breach of fiduciary duty claims against Loyaltyworks. Doffermyre testified consistently that he did not call Jenks to discuss that offer, but rather to discuss a global settlement of the plaintiffs' claims, which involved more than just the stock sale. An offer to an individual shareholder for that shareholder's stock, contingent upon executing a written document, does not automatically apply to a negotiation to sell all of those shareholders' stock for a lump sum in exchange for releases. Therefore the trial court erred in concluding that the record established no questions of fact as to whether the parties had reached an agreement because they had not signed a written document.
2. If a signed writing was not required to find that the parties reached a binding agreement, the next question is whether they reached a verbal agreement as to all essential terms. A binding contract exists only where both parties have assented to all the terms. OCGA §§ 13-3-1; 13-3-2.
Again, the record establishes that a fact question exists in this regard. Doffermyre testified that the agreement consisted of three parts: selling all of the plaintiffs' stock in exchange for a total sum; executing releases; and cancelling Rorke's note, all of which he and Jenks agreed upon. Those terms are reflected in the parties' draft securities purchase agreement and the note cancellation document.
(a) The defendants claim that Doffermyre's edits to the securities purchase agreement prove that the parties had not agreed to all essential terms. Most of the edits are clearly not substantial, such as changing or deleting subheadings, changing the method of payment from checks to wired funds, deleting a phrase stating that the plaintiffs had had an opportunity to discuss the company's business affairs to one stating that the plaintiffs had made an independent decision to sell their stock, and inserted a mutual release from the company to the plaintiffs, a mirror image of the existing provision that the plaintiffs released the company. Nothing in the record suggests that the defendants objected to waiving their claims against the plaintiffs, or that they had any substantive claims to waive.
Doffermyre also added that Brian Learst held options to buy 296,000 shares of common stock in Loyaltyworks. The defendant(s) argue that this change shows that all terms had not been agreed upon. To the contrary, Doffermyre testified that the defendants' concerns regarding his clients' options and warrants arose after he and Jenks had agreed on the three major terms of stock sales, releases, and note cancellation. When he saw that the agreement included language cancelling the plaintiffs' options and warrants, he notified CRP's lawyer that this was not part of the agreement, and that Jenks said during their discussions that he did not care one way or the other about the options and warrants. Doffermyre was "miffed" that the defendants were adding additional items but thought they were of no consequence, but were in the nature of cleaning up the details, because if there were any outstanding options and warrants they had no current or foreseeable value. Jenks testified that he did not remember discussing the options and warrants with Doffermyre. Thus Doffermyre's testimony is the only evidence in the record regarding this issue, and he said he was merely accommodating the defendants' desire to address those issues in addition to the terms agreed upon.
(b) The defendants also contend that Jenks had no authority, apparent or actual, to act as an agent for Loyaltyworks. This argument ignores the realities of Jenks' and CRP's interlocking corporate structures, in which Jenks served as the managing member of CRP, which controlled the majority of *585 Loyaltyworks' shares. At the very least, a question of fact exists whether Jenks had apparent authority to resolve or facilitate the resolution of Rorke's note cancellation in exchange for the stock secured by the note.
(c) Finally, the defendants argue that the document waiving the rights of first refusal and co-sale was never signed, and because any agreement would be contingent upon that waiver, it is not enforceable. But the parties had already exchanged drafts of this document, and the record shows no indication that these waivers would not have been granted. The only reason the waivers had not been signed was because Jenks withdrew from the deal. This again is an issue of fact for a jury to decide.
The trial court erred in granting summary judgment to the defendants on this ground.
3. Finally, the trial court granted summary judgment to Loyaltyworks on its claim against Rorke for his $100,000 promissory note. We held in Division 1 that a fact question exists as to whether the parties reached an agreement for CRP to purchase all of these minority shareholders' stock. If they did reach an agreement, it included the 100,000 shares of common stock that Rorke obtained in exchange for signing the note. In an e-mail message about the note, Loyaltyworks' CFO states to Jenks (copying Loyaltyworks' president):
Steve, the 400,000 shares of common includes Greg Rorke's 100,000 shares. Since we are forgiving his note for these shares (e.g., he never paid for the shares), only 300,000 shares of common are being purchased for $150,000 and the total aggregate purchase price is $1,327,612. Our legal counsel is working up the Board consent for the forgiveness of the Rorke note in exchange for the 100,000 shares of common.
The defendants argue that Jenks had no authority to act for Loyaltyworks, an issue addressed in Division 2. They further argue that the Board had never formally voted to forgive the note. Whether Jenks had authority to speak for the board is at least a question of fact. That the board never actually voted on the issue is not dispositive, especially as Jenks changed his mind about buying the plaintiffs' stock.
Accordingly, the trial court erred in granting summary judgment to Loyaltyworks on Rorke's note.
Judgment reversed.
SMITH, P.J., and MILLER, J., concur.
NOTES
[1] The plaintiffs are Aileen McKenna, Mylle Mangum, Brian J. Learst, Thomas W. Spry, Riley Mangum, TMH Investment Company, and Greg Rorke. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331644/ | 160 Ga. App. 9 (1981)
285 S.E.2d 758
WATKINS
v.
THE STATE.
62120.
Court of Appeals of Georgia.
Decided September 29, 1981.
Sharon A. Shade, Dwight L. Thomas, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carole E. Wall, H. Allen Moye, Assistant District Attorneys, for appellee.
BIRDSONG, Judge.
Robert R. Watkins was convicted of rape and aggravated sodomy and sentenced to life imprisonment.
The evidence showed the following: The victim, age 18, worked with appellant at a restaurant where he was the cook. The victim and a co-worker asked appellant for a ride home after work. After appellant dropped the co-worker off at her home, the victim refused his invitation to go to a club. As they drove on appellant seemed lost and made as if to turn around in a small park. Instead, he parked the car and shoved or pushed the victim into the back seat of the car and raped and sodomized her. Though the victim begged to be let go, appellant stated he could not because she knew who he was and strangled her until she became unconscious. After lying unconscious in heavy rain she finally staggered out onto the street where two men picked her up. The victim had been seriously injured. She complained she had been raped and stabbed and "she called Robert's name" and said Robert had made her perform sodomy. At the hospital while undergoing emergency treatment she told the treating doctors that she had gotten a ride home with a person she worked with who had taken her out some place and that she had been raped and then tied to the bumper of a car and dragged and that was the last she remembered. (At trial she remembered nothing after having been strangled in the car.) She was treated for a fracture of the right collarbone, separation of the left collarbone from the shoulder, and a broken left arm; she had several large abrasions (loss of skin and *10 muscle) on her buttocks, extremities, back of her head, her trunk, and face, all which the examining physician had seen in persons thrown from a fast-moving vehicle. She had sustained a head injury resulting in transient functional impairment of mental ability and was disoriented for two days. She was in the hospital about four weeks. Because of the extent of her injuries, the gynecologist was not able to perform a normal examination for the presence of seminal fluid. The only traces of seminal fluid were found on the back seat of appellant's car.
The appellant gave a statement to the police that he took the victim to a disco and left her there. At trial, however, he testified that he and the victim smoked marijuana at a club, and later behind a store they had intercourse and sodomy at the victim's suggestion, after which he dropped her off at the disco.
The morning following the event, the victim's brother went to the park, where he recovered a name tag with his sister's nickname on it, a comb, pantyhose, a rope from inside a trash can, and a piece of blue plastic that looked as if it had come from the inside of a car.
Appellant enumerates six errors of law. Held:
1. Appellant complains of the trial court's denial of his motion to suppress as to the piece of blue plastic. We find no error. The brother gave the police the items he had found at the park. Later a policeman opened the passenger door of appellant's car and while the appellant stood nearby the brother matched the torn piece to the seat. Giving appellant the benefit of his argument that the brother acted as agent for the police, we nevertheless find no impropriety in the admission of the torn plastic parts or the information that they matched. The car and all its components were an instrumentality of the crime. Code § 27-301 (d) permits the discovery and seizure of an instrumentality, or any item, substance, object or thing which is tangible evidence of the commission of the crime, when a lawful arrest has been effected and the search is made in the area of the person's immediate presence. The appellant was present when the car door was opened; there is no evidence that he objected to the procedure or exhibited any disapproval.
Moreover, even assuming error, the admission of the evidence concerning the brother's act in matching the plastic piece to the car was merely cumulative and therefore harmless beyond a reasonable doubt (Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133)), and in high probability did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). A state crime lab expert testified that he received the impounded car (after a search warrant had been obtained), that he himself examined it and matched to the broken seat the plastic piece which he had received from the police. The *11 expert testified that in his opinion the piece of plastic (which the brother testified he had found at the park) had been broken off with some force from the seat of appellant's car. Any other activity or testimony concerning the matching of the plastic to appellant's car was merely superfluous.
2. The evidence was fully sufficient to authorize a reasonable trier of fact to rationally find proof of appellant's guilt beyond a reasonable doubt. Boyd v. State, 244 Ga. 130, 132 (259 SE2d 71); Turner v. State, 151 Ga. App. 169, 170 (259 SE2d 171). The evidence, including the victim's testimony, authorized the jury to conclude beyond a reasonable doubt that the victim had been raped and sodomized by the appellant. See esp. Neal v. State, 152 Ga. App. 395 (1) (263 SE2d 185).
3. The trial court did not err in admitting evidence of hair found imbedded in the pavement at the scene of the crime, even though this hair was never identified or analyzed as belonging to the defendant or the victim. The evidence in the case is sufficient to authorize the jury to consider the manner and circumstances in which human hair might become so imbedded in the pavement as not to be washed away by the heavy rains on the night of the crime. The evidence shows that the victim lost a large wad of hair from her head as a result of an abrasion consistent with her being thrown or dragged from a fast moving vehicle. The physical evidence of the hair was relevant and there is sufficient basis to authorize the jury to decide whether it was connected to this crime. See Kent v. State, 157 Ga. App. 209 (276 SE2d 881). In any case, the admission of it would not be harmful error since in light of the other evidence in the case it is highly probable the hair did not contribute to the verdict. Boyd, supra.
4. The trial court did not commit reversible error in failing to excuse for cause a juror who exhibited a strong belief in the integrity and credibility of police officers. Under assiduous questioning, the juror stated that notwithstanding his avowed faith in law enforcement persons, he would follow the instruction of the court as to credibility of the witnesses and would weigh such testimony in the light of all the evidence. The trial court did not abuse its discretion in concluding that the juror exhibited no such bias as to fatally infect his verdict. Welch v. State, 237 Ga. 665, 671 (5) (229 SE2d 390).
5. In closing argument the district attorney commented on the fact that in his statement to police following his arrest, appellant made no reference to having had consensual sexual relations with or smoking dope with the victim, while at trial he did so testify. This was not an impermissible comment on the appellant's right to remain silent, because the evidence shows the appellant did not remain silent. Johnson v. State, 235 Ga. 355 (219 SE2d 430). He made *12 differing statements after arrest and during trial; this has always been an appropriate and sometimes vital subject of inquiry and impeachment. See especially Head v. State, 160 Ga. App. 4.
6. The trial court did not err in denying appellant's motion for mistrial based on inflammatory remarks by the state concerning appellant's hygiene. The trial court sustained appellant's objection and admonished the jury to disregard the remarks. In any case, it is highly probable the remarks did not contribute to the verdict, in view of the other evidence in the case. Boyd, supra.
Judgment affirmed. Shulman, P. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331615/ | 285 S.E.2d 670 (1981)
Grat WEST, et al.
v.
NATIONAL MINES CORP., et al.
No. 14916.
Supreme Court of Appeals of West Virginia.
December 18, 1981.
*672 David Norken, Pineville, Tobias J. Hirshman, Charleston, for appellants.
Love, Wise, Robinson & Woodroe, E. Glenn Robinson and David L. Wyant, Charleston, for appellees.
*671 McGRAW, Justice:
This is an appeal from a judgment order of the Circuit Court of Wyoming County which denied the appellants' motion for a preliminary injunction and granted the appellees' motion to dismiss. The appellants, Grat and Mila West, husband and wife, live along state secondary route 8/1 on Buffalo Creek in Wyoming County. Appellee, National Mines Corporation, owns the coal *673 lease on property located up the hollow from the appellants' property. National has contracted with the other named appellees, H & S Coal Company, B & F Coal Company, C & L Coal Company, Inc., and Economy Fuel Company, Inc., for the production of coal from its leasehold.
Coal produced from National's leasehold is removed by contract haulers who transport the coal by truck down route 8/1 past the appellants' house to a preparation facility owned by National located approximately three miles west of Pineville, West Virginia. The coal is hauled in large trucks carrying 30 to 50 tons per load. The trucks run six days per week and occasionally all night long. Route 8/1, the only access road between the mine and National's preparation facility, is a dirt and gravel based road. Consequently, much dust is created by the truck traffic in dry weather conditions. The dust problem is exacerbated by the truck operators' practice of travelling in packs of four or five trucks at a speed of approximately 30 miles per hour. Although there is a limited amount of local automobile traffic on the road, the dust problem is caused primarily by the coal truck traffic. The appellants' house sits close to the road and the dust created by the trucks settles on the house and the surrounding property.
Although the appellants have lived in their present house since 1972, Mr. West has lived at the same address for over 45 years. Mining operations have been ongoing above the appellants' property for decades, but more coal is being hauled out now than ever before.[1] Thus more and larger coal trucks travel route 8/1 now than in the past, and as a result the dust problem associated with the truck traffic has become more severe.
The appellants filed a complaint against National and the other coal companies on November 21, 1978 alleging the existence of a nuisance caused by the activities of the appellees and seeking preliminary and permanent injunctive relief, as well as damages. After filing an answer and two amended answers the appellees moved to dismiss the complaint. The appellants then filed a petition for a preliminary injunction requesting that the appellees be temporarily enjoined from hauling coal over route 8/1, or in the alternative that they be required to water the road in order to abate the dust, and for such other relief as may be deemed reasonable and just.
The trial court did not act upon the appellees' motion to dismiss, but a hearing was held on the appellants' petition for a preliminary injunction on September 21, 1979, at which Mr. and Mrs. West testified. Mr. West described the nature of the nuisance created by the appellees' operations in the following manner:
[T]he trucks create this dust coming up from the road, and we have to live there because we have nowhere else to go. It is our home, and we have to breathe and you can't breathe in the dust, as thick as it is. It is like a cloud hanging down there all day long way up into the night. If you are outside trying to do something in the yard or the garden, you've got to wear a dust mask. (R. p. 57.)
The dust is ubiquitous. It permeates the house even with the doors and windows closed. The evidence shows that the dust is oily and greasy, black looking and hard to clean. It interferes with breathing. It spoils the food raised by the appellants in their garden. It fouls the water, and prevents the appellants from sleeping soundly. The oppressive conditions caused by the dust were summarized by Mr. West:
You can stay out in the dust, I believe, and it would actually kill you in the end. I have to get out of it. You all ought to really understand what I am trying to say here, that the dust can be that bad down there. You take a dirt road down there, as much big traffic as is on it, that is the kind of atmosphere we have to live in every day except when it is raining, and, believe me it is not good. It is hard to breathe. I tell you, I've often thought *674 about it like this: A man would be better off over there in jail in solitary confinement than to have to put up with this kind of conditions for the rest of his life. It is just that bad. (R. 60-61.)
The appellees offered no evidence at the hearing, but rather presented a memorandum in support of their motion to dismiss. The appellants requested additional time to file a memorandum, but before they could do so the trial court entered an order denying their petition for a preliminary injunction and dismissed the action, as to the coal companies, on the merits. The memorandum opinion of the circuit court indicates that it dismissed the complaint and denied the injunction against National because none of its trucks or employees were involved in the hauling of coal along route 8/1. The court further concluded that none of the other coal companies were guilty of actionable negligence because the dust problem was created by their use of a public road.
The appellants contend that the circuit court erred in dismissing their complaint. They allege that, notwithstanding the fact that the coal is hauled on a public road, the dust created by the coal trucks is a nuisance because it is excessive and constitutes a substantial and continuing problem that has caused a material disturbance by denying them the use and enjoyment of their house. They further contend that the appellees are responsible for creation of the nuisance even though the haulers may be independent contractors. Finally, the appellants allege that the circuit court erred in denying them a temporary injunction.
Initially we note that it is unclear from the record whether the trial court treated the appellees' motion as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, or as a motion for summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure. While Rule 12(b)(6) and Rule 56 are closely related, and perhaps overlap in some respects, only matters contained in the pleadings may be considered on a motion to dismiss under Rule 12(b)(6). If matters outside the pleadings are presented to the court and are not excluded by it, the motion should be treated as one for summary judgment and disposed of as provided in Rule 56. Chapman v. Kane Transfer Company, W.Va., 236 S.E.2d 207 (1977); Barker v. Traders Bank, 152 W.Va. 774, 166 S.E.2d 331 (1969). Since the trial court's ruling on the appellees' motion was made after taking evidence at the hearing on the propriety of a preliminary injunction, we will treat the trial court's disposition of the appellees' motion as a ruling under the provisions of Rule 56.
There are two primary issues presented by this appeal. First, can the unreasonable, negligent or unlawful use of a public road constitute a legally cognizable nuisance, and second, can the primary beneficiary of a contractual relationship escape liability for nuisance through the use of independent contractors whose unreasonable, negligent or unlawful activities give rise to a nuisance.
I.
American courts are agreed on the general rule that any dust which substantially interferes with the comfortable enjoyment of adjacent premises constitutes a nuisance, see Annot., 24 A.L.R. 2d 194 § 1 (1952), and the appellees do not here dispute the fact that the coal truck traffic along route 8/1 has created a serious dust problem. Rather they argue that a private party cannot be held liable for a dust nuisance which arises from the use of a public roadway. We disagree.
The issue of whether the use of a public road can constitute an actionable nuisance is one of first impression in this jurisdiction; other jurisdictions have, however, addressed the issue, with varying results. For example, in Shannon v. Missouri Valley Limestone Company, 255 Iowa 528, 122 N.W.2d 278 (1963), property owners brought suit to enjoin a dust nuisance arising from the hauling of limestone by trucks on an unpaved public road adjoining their property. *675 The trial court did not enjoin use of the road or stop operation of the limestone quarry, but did require the limestone company, notwithstanding that the trucks were operated by independent contractors, to treat the surface of the road to prevent dust damage to the plaintiffs and their property. The Supreme Court of Iowa affirmed, noting that:
The dust is irritating to the skin, nose and throat, kills lawns, gets in their homes and food, is injurious to all vegetation and livestock, requires plaintiffs to keep their homes closed in hot weather, and in short makes ordinary use of a home and lawn impossible during spring, summer and fall during dry weather. We are compelled to agree with the trial court that a common law nuisance is created by the dust raised by the trucks hauling crushed rock from the quarry.
122 N.W.2d at 279. Accord, Pottawattamie County v. Iowa Department of Environmental Quality, 272 N.W.2d 448 (Iowa 1978).
In Wales Trucking Company v. Stallcup, 465 S.W.2d 444 (Tex.App.1971) property owners brought suit for dust damages against a trucking company which was engaged in hauling heavy concrete piping for a nearby water project along an unimproved public road which ran in front of the plaintiffs' house. The jury found that the activities of the trucking company had created a nuisance and awarded the plaintiffs $5000 damages. On appeal the trucking company argued that either negligence or unlawful use must be plead and proven in establishing as a nuisance the use of a public roadway. The Court of Civil Appeals rejected this argument, holding that at common law a property owner who sustains damage caused by a nuisance which is created by a member of the public in making an unreasonable use of a public road has a cause of action for the damage caused by the nuisance, and that proof of negligent or unlawful conduct is not a necessary or essential element of such cause of action.
The Texas court's opinion was in part founded upon an earlier decision that held the dust created by a rock crushing operation on private property constituted an actionable nuisance regardless of the degree of care exercised by the operator. Collins Construction Company v. Tindall, 386 S.W.2d 218 (Tex.Civ.App.1965). The court in Wales reasoned:
Does the difference between mobile and immobile equipment operating on public or private property, respectively, require that different rules be applied in connection with responsibility for the creation of a nuisance? We think not. We so hold. The same general rules apply in both cases. 465 S.W.2d at 448.
Wales was subsequently reversed by the Supreme Court of Texas which held that the facts of the case did not warrant a holding of liability without fault or nuisance without fault where the activity is of a temporary nature and involves the lawful use of a public road to deliver pipe for a public water supply project. 474 S.W.2d 184 (Tex.1971). The court stated, however, that:
It is not necessary for us to hold, and we do not hold, that the use for profit of a public highway cannot be, or become, a nuisance. [Shannon v. Missouri Valley Limestone Co., supra] is a strong case for the holding that it may be. (Emphasis added.) 474 S.W.2d at 189.
In Jacobson v. Crown Zellerback Corp., 273 Or. 15, 539 P.2d 641 (1975) the plaintiffs alleged damage to their house caused by vibrations from the operation of heavy logging trucks during wet weather on a county road running past their house. The trial court sustained a demurrer to the nuisance cause of action and the Supreme Court of Oregon affirmed, holding that "public policy dictates that no cause of action lies against an individual member of the public who uses the public way for travel in conformance with the rules laid down therefor."[2] 539 P.2d at 644.
*676 In Blumenthal v. City of Cheyanne, 64 Wyo. 75, 186 P.2d 556 (Wyo.1947) the plaintiffs sought to enjoin the enforcement of a municipal ordinance which established a through truck route on streets in a residential neighborhood. One of the theories advanced by the plaintiffs was that the truck traffic constituted a nuisance. The court rejected this theory on the ground that the truck operators were using the streets in a lawful and reasonable manner, that if the use of the streets abutting the plaintiffs' property were considered a nuisance, so would the use of all city streets, and in such a case all truck traffic would have to be prohibited in the city. The court further noted that "so far as ... the consequences complained of flow naturally and normally from the conduct of the traffic under proper authority, in a reasonable manner and with due regard for the rights of others, one who conceives he has been injured can have no redress." 186 P.2d at 572, quoting Cadwell v. Connecticut Ry. & Lighting Co., 84 Conn. 450, 80 A. 285 (1911).
The appellees cite both Jacobson and Blumenthal as support for their contention that a private party cannot be held responsible for a nuisance which arises from the use of a public road. We do not read these cases so broadly. The holdings of the courts in Jacobson and Blumenthal were both premised on a reasonable and lawful use of a public road. Jacobson held that no cause of action lies for a use of a public road which conforms "with the rules laid down therefor," and the language of Blumenthal quoted in the preceding paragraph implies that a cause of action would have existed had the plaintiffs therein shown an unreasonable or unlawful use of the streets involved. Therefore, insofar as the appellants herein have alleged, and offered uncontested evidence tending to prove an unreasonable and unlawful use of route 8/1 we read Jacobson and Blumenthal as supportive of their position that the haulage of coal along route 8/1 by the appellees has given rise to an actionable nuisance.
This Court treated exhaustively the subject of private nuisance in Martin v. Williams, 141 W.Va. 595, 93 S.E.2d 835 (1956). In Martin we said:
A nuisance is anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable. * * * A nuisance is anything which interferes with the rights of a citizen, either in person, property, the enjoyment of his property, or his comfort. * * * A condition is a nuisance when it clearly appears that enjoyment of property is materially lessened, and physical comfort of persons in their homes is materially interfered with thereby. * * * When the prosecution of a business, of itself lawful, in a strictly residential district, impairs the enjoyment of homes in the neighborhood, and infringes upon the well-being, comfort, repose, and enjoyment of the ordinary normal individual residing therein, the carrying on of such business in such locality becomes a nuisance, and may be enjoined. 141 W.Va. at 610, 93 S.E.2d at 844.
Although traditionally private nuisance has been defined in West Virginia as that class of wrongs which arises from the unreasonable, negligent, or unlawful use of one's own property, see, e.g., Pope v. Edward M. Rude Carrier Corp., 138 W.Va. 218, 75 S.E.2d 584 (1953), we see little rational basis in holding a party responsible for the creation of a nuisance when the acts which give rise to the nuisance occur on his private property, and yet relieve him of liability when those same unreasonable, negligent, or unlawful acts are conducted on public property.
It is a part of the great social compact to which every person is a party, and a fundamental and essential principle in every civilized community that every person yields a portion of his right of absolute dominion and use of his own property, in recognition of, and obedience to, the rights of others, so that others may also enjoy *677 their property without unreasonable hurt or hinderance. Wood, The Law of Nuisances at 2-3 (3d ed. 1893). Just as the right to the free use of one's own property is subject to the implied obligation to use it so that it will not be unreasonably injurious to others, so the right to use public property also should be subject to the same implied obligation.
While it is true that the public has a legitimate right to the use and enjoyment of a public roadway, that right must be exercised in a reasonable manner and with due regard for the right of adjoining property owners to the use and enjoyment of their property. The law does not allow anyone, whatever his circumstances or conditions may be, to be driven from his house or compelled to live in it in positive discomfort, although caused by a lawful and useful business carried on in his vicinity. Martin v. Williams, supra. Accordingly we hold that a complaint which alleges an unreasonable, negligent, or unlawful use of public property which materially impairs the right of another to the enjoyment of his house and infringes upon the well-being, comfort, repose, and enjoyment of the regular, natural person residing therein, states a cause of action for nuisance of which the courts of this State have cognizance.
II.
The trial court dismissed the appellants' cause of action against the appellee National Mines Corporation because it apparently viewed the relationship between National and the coal haulers as one of employer independent contractor, thus relieving National of any liability for the nuisance created by the truck traffic on route 8/1.[3] The appellants contend that this ruling is erroneous. They argue that a party cannot escape liability for a nuisance created by its operations by contracting with others to perform the objectionable segments of its operations.
We agree with the appellants that the defense of the independent contractor is of no avail to National in this case. The general rule that an employer is not liable for the torts of an independent contractor is subject to numerous exceptions. One of the exceptions is where the work contracted to be done is likely to create a nuisance. Law v. Philips, 136 W.Va. 761, 68 S.E. 452 (1952); Humphries v. Black Betsy Consol. Coal Co., 115 W.Va. 768, 178 S.E. 273 (1934). See also Sanders v. Georgia-Pacific Corp., W.Va., 225 S.E.2d 218 (1976); Carrico v. West Virginia Cent. & P. R'y Co., 39 W.Va. 86, 19 S.E. 571 (1894).
It is a well established principle of law that one who employs an independent contractor to do work which the employer knows or has reason to know to be likely to involve the creation of a public or private nuisance, is subject to liability for harm resulting to others from such nuisance. Restatement (Second) of Torts § 427 B (1965). Accord, Weinmann v. DePalma, 232 U.S. 571, 34 S. Ct. 370, 58 L. Ed. 733 (1913); St. Paul Water Co. v. Ware, 16 Wall. (U.S.) 566, 21 L. Ed. 485 (1873); Chicago v. Robbins, 2 Black (U.S.) 418, 17 L. Ed. 298 (1863); Green v. Berge, 105 Cal. 52, 38 P. 539 (1894); Fowler v. Saks, 7 Mackey (D.C.) 570 (1890); Atlanta & F. R. Co. v. Kimberly, 87 Ga. 161, 13 S.E. 277 (1891); Scammon v. Chicago, 25 Ill. 424 (1861); Wabash St. L. & P. R. Co. v. Farver, 111 Ind. 195, 12 N.E. 296 (1887); Shannon v. Missouri Valley Limestone Co., supra; Baumeister v. Markham, 101 Ky. 122, 39 S.W. 844 (1897); Davie v. Levy, 39 La.Ann. 551, 2 So. 395 (1887); Eaton v. European & N. A. R. Co., 59 Me. 520 (1871); Weilbacker v. J. W. Putts Co., 123 Md. 249, 91 A. 343 (1914); Pickett v. Waldford System, 241 Mass. 569, 136 N.E. 64 (1922); Rogers v. Parker, 159 Mich. 278, 123 N.W. 1109 (1909); Palmer v. Lincoln, 5 Neb. 136 (1876); Cuff v. Newark & N. Y. R. Co., 35 N.J.L. 17 (1870), aff'd, 35 N.J.L. 574 (1871); *678 Berg v. Parsons, 156 N.Y. 109, 50 N.E. 957 (1898); Clark v. Fry, 8 Ohio St. 358 (1858).
It is also well established that all persons who join or participate in the creation or maintenance of a nuisance are liable jointly and severally for the wrong and injury done thereby. 58 Am.Jur.2d, Nuisances § 56 (1971). Only when the parties act entirely independently of one another, without any community of interest, concert of action, or common design, must those injured by the nuisance proceed on separate actions against the several wrongdoers for the proportion of damage caused by each separately. See, e.g., Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 265 (1920).
A party is not entitled to summary judgment unless the facts established show a right to judgment with such clarity as to leave no room for controversy and show affirmatively that the adverse party cannot prevail under any circumstances, Wheeling Kitchen Equipment Co. v. R & R Sewing Center, Inc., 154 W.Va. 715, 179 S.E.2d 587 (1971); Hanks v. Beckley Newspapers Corp., 153 W.Va. 834, 172 S.E.2d 816 (1970); Aetna Casualty & Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). In other words, on a motion for summary judgment, the facts of the case must be viewed in the light most favorable to the nonmoving party. Board of Education v. Van Buren & Firestone, Architects, Inc., W.Va., 267 S.E.2d 440 (1980).
In this case the allegations contained in the appellants' complaint and the evidence adduced at the hearing support the conclusion that the burden placed upon route 8/1 by the appellees' haulage of coal amounted to an unreasonable and unlawful use of the roadway, that such unreasonable and unlawful use of the roadway materially impaired the appellants' use and enjoyment of their house, and that National had reason to believe that haulage of coal along route 8/1 would result in the creation of the nuisance. Furthermore, it is obvious that National shared a community of interest with the other appellees in the haulage of its coal from its leasehold to its preparation facility. Consequently, it was error for the trial court to grant the appellees' motion for summary judgment.
III.
The appellants' final contention is that the circuit court erred by denying their motion for a preliminary injunction.
The power to grant or refuse a temporary or preliminary injunction ordinarily rests in the sound discretion of the trial court according to the facts and circumstances of the particular case, and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion. Mahoney v. Walter, W.Va., 205 S.E.2d 692 (1974); Stuart v. Lake Washington Realty Corporation, 141 W.Va. 627, 92 S.E.2d 891 (1956).
In their complaint the appellants requested that the appellees be temporarily and permanently enjoined from hauling coal over route 8/1. However, at the hearing held to determine the propriety of preliminary injunctive relief, this request was abandoned, and the appellants asked that the appellees be required to abate the nuisance by placing and operating a water truck on the road to control the dust, or to provide such other relief as may be deemed reasonable and just.
We reject the appellees' contention that the court has no authority to impose such a remedy because it would infringe upon the exclusive jurisdiction and duty of the Department of Highways to maintain public roads. While it is true that the Department of Highways has the responsibility to maintain public roads, see W.Va. Code § 17-2A-8 (1974 Replacement Vol.), that law does not prevent a court from requiring a party whose unreasonable, negligent or unlawful use of a public road creates a nuisance, to remedy the conditions giving rise to the nuisance. Moreover, it appears that the appellees have already assumed substantial responsibilities with regard *679 to maintenance of route 8/1, in that they grade the road weekly to facilitate coal haulage.
At the hearing on their motion for a preliminary injunction the appellants presented ample testimony to support their contentions that the appellees' activities have created a serious dust nuisance which substantially interferes with the use and enjoyment of their house, causes them great hardship, and threatens their health and physical well-being. The appellees, on the other hand, presented no evidence to controvert the appellants' testimony.
In McGregor v. Camden, 47 W.Va. 193, 34 S.E. 936 (1899), this Court reversed an order of the Circuit Court of Ritchie County dissolving an injunction prohibiting the operation of an oil and gas well within 70 feet of the plaintiff's house. There, as here, the only evidence before the circuit court was that presented by the plaintiff tending to establish the existence of a nuisance. In reversing the trial court's order dissolving the injunctions, this Court held: "Plaintiff's proofs undoubtedly made a prima facie case of nuisance, which entitled them to have the injunction continued until a final hearing." 47 W.Va. at 199, 34 S.E. 936.
As in McGregor, the evidence presented by the appellants herein established a prima facie case of nuisance, which was uncontroverted by the appellees. Given the gravity of harm to which the appellants have been subjected by the appellees' coal hauling activities, and the absence of evidence of any hardship which abatement of the nuisance would impose upon the appellees, we find that the trial court abused its discretion by denying the appellants' motion for preliminary relief. From the evidence produced at the hearing we must conclude that the appellants are entitled to a preliminary mandatory injunction requiring the appellees to abate the dust nuisance caused by the haulage of coal along route 8/1 from National's leasehold to its preparation facility.
The appellants have indicated in their brief that there are a variety of possible solutions that could be employed to abate the dust without stopping truck traffic. These range from watering or otherwise treating the road, paving the road, imposing speed limits, requiring spacing intervals between trucks, and placing tarps or other coverings on the trucks before they leave the appellees' premises. This list is by no means exhaustive. Consideration should be given to these and any other forms of relief which are reasonable and proper. Accordingly we reverse the decision of the circuit court and direct that a preliminary injunction be granted requiring the immediate abatement of the dust nuisance caused by the appellees' activities. We leave for the trial court the determination of the appropriate method of abatement to be implemented by the appellees.
For the foregoing reasons the judgment order of the Circuit Court of Wyoming County is reversed and the case is remanded for the entry of an order consistent with this opinion.
Reversed and remanded.
NOTES
[1] During 1977, 74,644 tons of coal were removed by truck past the appellants' house to National's preparation facility. During 1978, 116,868 tons were removed, and from January 1979 to June 1979, 90,158 tons of coal were removed.
[2] The court did not, however, leave the plaintiffs without a remedy, but indicated that when "[t]he government conducts or permits an activity for public purposes upon its land that is sufficiently massive to amount to a taking of adjacent land, an action for inverse condemnation lies against the government." 539 P.2d at 634.
[3] Although the appellants alleged in their complaint that H & S Coal Company, B & F Coal Company, C & L Coal Company, Inc., and Economy Fuel Company, Inc. were contract haulers employed by National, and the trial court so found in its memorandum opinion, it is not clear from the record whether this was the actual relationship which existed between the parties, and is a matter which may be in need of further development on remand. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332098/ | 218 Ga. 361 (1962)
127 S.E.2d 912
STUART
v.
BERRY; and vice versa.
21745, 21746.
Supreme Court of Georgia.
Argued September 10, 1962.
Decided October 4, 1962.
Swift, Pease, Davidson & Chapman, Grogan & Jones, Hatcher, Smith, Stubbs, Land & Rothschild, for plaintiff in error.
Kelly, Champion & Henson, contra.
HEAD, Presiding Justice.
Mrs. Jean Newsome Berry filed an action for damages against Marcus E. Stuart for the alleged wrongful death of her husband, Paul T. Berry. She alleged that her husband's death was caused by defective wiring installed by employees of the defendant. She asserted, as one ground of negligence, that such wiring was not in compliance with pleaded portions of the Muscogee County Building Code.
The defendant filed general and special demurrers and an answer. Thereafter the plaintiff filed three amendments, and the defendant renewed his demurrers previously filed after each amendment and demurred specially to each of the amendments. On March 28, 1962, the judge of the city court overruled all demurrers of the plaintiff to the defendant's answer, sustained certain of the special demurrers to the petition, and overruled all other demurrers, general and special. In this order the judge *362 overruled the special demurrers of the defendant which attacked the constitutionality of the act entitled, "Muscogee County Building Codes" (Ga. L. 1951, pp. 2729-2735), but sustained the special demurrers attacking the pleaded portions of the Muscogee County Building Code because the National Electric Code, referred to in the building code adopted by the Commissioners of Roads and Revenues of Muscogee County, was not incorporated in the Muscogee County Building Code. It was ordered that the plaintiff purge her petition of the portions stricken by the sustaining of the demurrers and that she replead. On April 16, 1962, the repleaded petition was filed. On the same date the defendant filed his objections to the repleaded petition, and "renewed" each of his demurrers, general and special, to the repleaded petition.
In the main bill of exceptions error is assigned by defendant in the trial court on the order of the judge of March 28, 1962, overruling his general demurrers to the petition as amended, and overruling certain special demurrers to the petition as amended by the first, second, and third amendments. Error is also assigned on the order of the court overruling his objections to the repleaded petition, and to the order of the court overruling the renewed general and special demurrers to the repleaded petition.
The plaintiff in the trial court by cross-bill of exceptions assigned error on the order of the court overruling her demurrers to the defendant's answer, on the order sustaining certain special demurrers to her pleadings, and on the order requiring her to replead her petition omitting the allegations stricken on demurrer.
The writs of error were directed to the Court of Appeals, and that court by formal order transferred the writs to this court, "being of the opinion that the case is one of which the Supreme Court and not this court has jurisdiction, ..." It is the duty of this court, with or without motion, to determine its jurisdiction.
"Where the court sustains any or all demurrers to pleading, and allows time for the filing of an amendment, such judgment or order shall not be subject to exception or review, but the court shall render a judgment on the sufficiency of the pleadings *363 after the expiration of the time allowed for amendment which shall supersede the judgment allowing time for amendment." Ga. L. 1952, p. 243 (Code Ann. § 81-1001). "When a pleading is amended, after being demurred to, questions made by the first demurrer become moot, and when the pleading is again demurred to, and again amended, the second demurrer likewise becomes extinct and nugatory. Code (Ann.) § 81-1001; Holliday v. Pope, 205 Ga. 301, 308 (53 SE2d 350); Hunter v. Ogletree, 212 Ga. 38 (89 SE2d 891)." Hancock v. Wilson, 214 Ga. 60 (102 SE2d 551); Myers v. Grant, 212 Ga. 182 (91 SE2d 335); McCormick v. Johnson, 213 Ga. 544 (100 SE2d 195); United Jewelers, Inc. v. Emanuel Burton Diamond Co., 214 Ga. 170, 173 (104 SE2d 87); Weinstein v. Rothberg, 87 Ga. App. 94 (73 SE2d 106); Adams v. Ricks, 91 Ga. App. 494, 497 (86 SE2d 329); Norton v. Hamilton, 92 Ga. App. 2 (87 SE2d 442); Blackstock v. Fisher, 95 Ga. App. 117 (97 SE2d 322); Morris v. Cochran, 97 Ga. App. 751 (104 SE2d 544).
The above quoted rule from the act of 1952, as construed by this court and the Court of Appeals, renders moot the overruling of the demurrers to the original petition, to the three amendments, and to the petition as amended. The sole question for review in the main bill of exceptions is the validity of the repleaded petition. The repleaded petition makes no reference to the act entitled, "Muscogee County Building Codes" (Ga. L. 1951, pp. 2729-2735), or to any action of the Commissioners of Roads and Revenues of Muscogee County pursuant thereto, and the rulings of the court on the constitutional attacks based on allegations of the original petition can not be reviewed.
There being no constitutional question for review, nor any other question invoking the jurisdiction of this court under the Constitution, Art. VI, Sec. II, Par. IV (Code Ann. § 2-3704), the Court of Appeals, and not this court, has jurisdiction of the writs of error.
Returned to the Court of Appeals. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331672/ | 159 Ga. App. 769 (1981)
285 S.E.2d 229
WOODARD et al.
v.
FIRST NATIONAL BANK OF ATLANTA.
62190.
Court of Appeals of Georgia.
Decided October 1, 1981.
Brant Jackson, Jr., for appellants.
T. Kennerly Carroll, Jr., for appellee.
BIRDSONG, Judge.
Unjust enrichment. The appellants, Mr. and Mrs. Woodard, had a joint checking account with the appellee, First National Bank of Atlanta (Bank). In October, 1978 Mrs. Woodard suffered the loss of her pocketbook containing her checkbook and all her identification. At the suggestion of the Bank, the Woodards closed out the account (beginning with the number 48) and substituted a new One account (beginning with the number 01). In November, Mrs. Woodard's daughter prevailed upon her parents to pay the tuition costs for an airline stewardess course of instruction. The daughter made out a check for $650 for her mother's signature to the correspondence school but inadvertently wrote the check upon the 48 account which had been closed out about a month earlier. It is undisputed that when she signed it, Mrs. Woodard intended the $650 check to be made against and paid out of the One account. Mrs. Woodard informed the *770 correspondence school representative that there was insufficient money in the account (the intended One account) to cover the check in November but she expected some insurance proceeds which would allow the check to be covered in December but not to negotiate the check until approved by her. While the insurance proceeds were not received, Mrs. Woodard did receive a $600 gift from a relative. However, this money was not deposited in the One account. (Moreover, the daughter elected not to participate in the stewardess training and the Woodards later received a $550 refund from the school.)
Contrary to Mrs. Woodard's instructions, the correspondence school presented the $650 check for payment to the Bank and the check was paid on December 21. Although the check was photocopied at the time of payment, for some unexplained reason the original document was lost by the Bank. At the time of the payment, the 48 account had been closed and the One account had only $107.86 on deposit. After the $650 check was paid, the Woodards deposited another $160 in the One account which amount together with the $107.86 was credited against the several hundred dollar overdraft. Because the account was overdrawn, eighteen checks were returned to the Woodards and overdraft charges in an amount of $126 was added to the debit. Thus as a result of charging a check marked with the identification of the closed 48 account to the One account, the Woodards ended up with a debit of $511.74. The Bank demanded this amount from the Woodards. The Woodards in turn brought suit against the Bank complaining that the Bank, instead of dishonoring the check drawn on the closed account, had instead without authority charged the inadvertently drawn check against an active account, removing improperly from the active account assets belonging to the Woodards and by dishonoring other subsequently written checks, brought disrepute to the Woodards' reputation. After discovery both parties sought the grant of motions for summary judgment. The trial court denied summary judgment to the Woodards and granted summary judgment to the Bank on its counterclaim for the $511.74 plus attorney fees and interest. The Woodards bring this appeal complaining of the denial of the motion and the grant of the Bank's Held:
In substance the Woodards argue that though there was a contract existing between them and the Bank authorizing the bank to use any assets in the 48 account, when that account was closed the contract died with the account. Though the same language was contained in the contract concerning the new One account, it is the contention of the Woodards that the Bank had no authority to pay any proceeds from the One account to honor a check from the 48 *771 account which no longer existed. Their further argument is that because the check was lost by the Bank on or before the day it was paid, the check could not be returned by the midnight deadline and the Bank became liable to the payee out of its own funds. Because it was liable from its own funds, and for that reason only, the Bank in effect gratuitously paid the money and then improperly charged the assets belonging to the Woodards in the One account. This they contend was a conversion. The Bank responded that by the doctrine of unjust enrichment the Woodards were indebted to the Bank and thus the contract governing the One account authorized the Bank to charge any assets in the hands of the Bank as satisfaction of the indebtedness. We are persuaded by the Bank's argument.
The pertinent provision of the depositor agreement pertaining to the One account and signed by the Woodards provided: "The depositor agrees that the bank shall have and does hereby grant .. . a security interest in and a lien . . . [for the payment of any and all indebtedness]. . . and the bank may at any time, without demand or notice, appropriate and apply any and all of such property, balances, deposit accounts . . . towards the payment of . . . such indebtedness, obligation or liability owing to bank, matured or unmatured of the depositor."
There is no doubt from the evidence considered by the trial court that Mrs. Woodard intended to write a $650 negotiable instrument against her account (the One account) in the appellee Bank and that she intended the check at the time of negotiation to be paid by the Bank. It is equally uncontested that the Bank paid the check upon presentment, though the manner of payment was questionable. The Woodards thereafter did nothing to rectify the error of the correspondence school in presenting the check for payment and in fact the Woodards accepted the $550 refund from the school for services never received. In addition, the deposition of Mrs. Woodard indicates that she received $600 from a relative to off-set the same school expense, yet made no effort to cover a check known to have been negotiated by the school and paid out of bank funds. It can hardly be argued under such facts that the Woodards were not unjustly enriched.
The law governing this situation is succinctly stated to be: "A party compelled by operation of law to pay a debt which in equity and good faith another party should have kept him from paying may recover from the other party the amount paid" in an action at law. Parrish v. Adams, 22 Ga. App. 170 (3) (95 SE 749). The scales of justice seek a balance where one unjustly gains a pecuniary advantage over another to which the gainer is not entitled and refuses to make restitution to the loser and will make restitution by granting an *772 action for unjust enrichment. Trust Co. of Ga. v. S & W Cafeteria, 97 Ga. App. 268, 283 (103 SE2d 63). We are satisfied that under the circumstances, the Woodards were bound to carry out their end of the demand upon the Bank, i.e., to produce sufficient funds to cover the check upon presentment. The Bank paid the check upon demand by Mrs. Woodard (manifested by her making the check and thereafter failing to protest the subsequent presentment of the check to the Bank). The Bank paid the funds to the payee and the payee returned most of that money to the maker, Mrs. Woodard, long before she ultimately protested payment of the check. We find unconscionable in such circumstances the refusal by the recipient of the benefit to make whole the one who assumed the obligation of the beneficiary. There being a debt created by the unjust enrichment of the Woodards, it follows that the existing contract between the parties (pertaining to the One account) authorized the Bank to charge the debt against (even to the extent of an overdraft) the assets belonging to the Woodards remaining in the Bank. See Code Ann. § 109A-4-407; Bass v. Cates, 74 Ga. App. 363, 370 (39 SE2d 550).
Considering the creation of an indebtedness by reason of unjust enrichment and the existence of a lien upon assets of the Woodards in the Bank in the event of an indebtedness, under the terms of the admitted contract between the parties, we find no merit in the contentions of appellants which form the basis of their three enumerations of error. The trial court did not err in granting summary judgment to the Bank and denying such judgment to the Woodards.
Judgment affirmed. Shulman, P. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331680/ | 650 S.E.2d 427 (2007)
BIBB COUNTY BOARD OF EDUCATION
v.
BEMBRY.
No. A07A1525.
Court of Appeals of Georgia.
July 30, 2007.
*428 Wall & Elliott, James M. Elliott Jr. and Mary Margaret Brannen, Macon, for Appellant.
Chambless, Higdon, Richardson, Katz & Griggs, Dennis Lee Duncan and Frances L. Clay, Macon, for Appellee.
BLACKBURN, Presiding Judge.
In this workers' compensation action, we granted Bibb County Board of Education's application for discretionary review to determine whether the superior court exceeded its authority in reversing the decision of the State Board of Workers' Compensation, which held that Sandra Bembry was not entitled to further benefits as her work-related injury had resolved. As the decision of the Board was supported by some evidence, we reverse.
In reviewing an award of workers' compensation benefits, both the superior court and this [C]ourt are required to construe the evidence in a light most favorable to the party prevailing before the State Board. It is axiomatic that the findings of the [Board], when supported by any evidence, are conclusive and binding, and that neither the superior court nor this [C]ourt has any authority to substitute itself as a fact finding body in lieu of the Board.
(Punctuation and footnote omitted.) Reid v. Ga. Bldg.Auth.[1]
The evidence, so construed, demonstrates that on April 14, 2004, Bembry, a sixth-grade social studies teacher for Bibb County Board of Education (BOE), was injured when she fell over a box of books at a teachers' meeting. BOE arranged for Bembry to visit Dr. Gary Godlewski the same day, and he diagnosed her with multiple sprains of the lumbar and leg. As the authorized treating physician, Dr. Godlewski eventually saw Bembry approximately ten times, and on her final visit of June 28, 2004, he opined that the muscular sprains resulting from the work-related injury had resolved and that her continued pain was related to a pre-existing condition.
Dr. Godlewski advised Dr. Wilson, Bembry's personal physician, of his conclusions and requested that Dr. Wilson examine Bembry and report as to whether he agreed that she had returned to a baseline of her previous condition. Dr. Wilson responded in a July 7, 2004 letter, expressing his "definitive" opinion that Bembry's previous condition was aggravated by the fall and that she had not returned to her pre-injury baseline.
On July 20, 2004, Bembry's employer controverted payment of further medical benefits. Bembry requested a hearing before an administrative law judge of the State Board of Workers' Compensation (ALJ), seeking continued medical benefits and attorney fees. BOE countered that Bembry's temporary aggravation of a pre-existing condition had ceased and that awarding attorney fees was not warranted.
At the hearing, Dr. Godlewski testified that, although a precise medical baseline was impossible to determine, he believed that Bembry had returned to the baseline of her pre-injury condition and that the sprains caused by her injury were resolved. He explained that Bembry's prior symptoms indicated that she had a disc herniation anywhere from six months to two years before the injury, and that because she presented muscular, rather than discogenic, symptoms immediately after the fall, he believed the injury affected the musculature only, rather than causing an aggravation of the degenerative disc.
The ALJ found that Bembry had not met her burden of proof to show her need for continued medical treatment under workers' compensation and specifically stated that, in weighing the conflicting medical evidence, he assigned more weight to the opinion of Dr. *429 Godlewski, the authorized treating physician. The Board accepted the ALJ's findings as supported by a preponderance of the competent and credible evidence. Bembry appealed to the superior court, which reversed the Board's determination, finding that there was no evidence to support it, held that Bembry should be awarded workers' compensation benefits, and remanded the matter for determination of the sole issue of whether attorney fees should be assessed against her employer.
BOE now appeals, contending that the superior court acted outside the scope of its authority in reversing the Board's determination, as there was evidence to support it. We agree.
It is well established that "an award of the [Board] will not be disturbed where there is any evidence to support it. The weight and credit to be given the testimony of the witnesses, and the conflicts in the evidence, are matters for determination by the [B]oard." Wilson v. Aragon Mills.[2] See also Diers v. House of Hines, Inc.[3] This Court has also specifically held that it is within the province of the Board to determine "the weight and credit to be given to the opinion testimony of a physician witness in a work[ers'] compensation case" and to resolve issues of fact arising from contrary opinions of the respective physicians of the claimant and defendant. (Punctuation omitted.) Elbert County Bd. of Commrs. v. Burnett.[4] See Worthington Indus. v. Sanks.[5]
Here, Dr. Godlewski's medical file and testimony were evidence supporting the Board's findings that Bembry's work-related injury caused a temporary aggravation of a pre-existing condition and that such aggravation had resolved. Although Dr. Wilson's July 7 letter indicated his contradictory opinion that Bembry's on-the-job injury had aggravated her pre-existing condition and that she had not returned to her baseline, it was within the province of the Board to determine the credit to be given to the conflicting opinions of experts. See Elbert County Bd. of Commrs. v. Burnett, supra, 200 Ga.App. at 381-382, 408 S.E.2d 168. The superior court must therefore leave undisturbed the determination of the Board to accord greater weight to the medical opinion of Dr. Godlewski.
Bembry nevertheless insists that Dr. Godlewski's records and testimony were superseded by Dr. Wilson's "definitive" opinion, since Dr. Godlewski sought Dr. Wilson's opinion, did not treat Bembry before the fall, and did not frame his opinion in the form of a medical certainty that Bembry had returned to her pre-injury baseline. However, in this context, expert medical conclusions need not be stated in the form of a medical certainty. See American Fire & Cas. Co. v. Gay[6] (applying "medical probability" standard in workers' compensation case); Zippy Mart, Inc. v. Fender.[7]
Here, although Dr. Godlewski stated that he could not characterize Bembry's pre-injury baseline with "medical certainty," he explained that, in his view, it was not possible to precisely pinpoint Bembry's baseline, as it was a "wandering baseline" not susceptible to a definitive characterization. Moreover, the record shows that Dr. Godlewski testified that "if I showed this to ten colleagues, I think nine would agree that" she had a herniated disc prior to the work-related fall, and that Dr. Godlewski "knew" the disc injury was not new. Further, his records stated that Bembry "was probably back to baseline" (emphasis supplied) and that he felt Bembry was amplifying her symptoms for purposes of her workers' compensation claim. Therefore, we conclude that the Board properly considered Dr. Godlewski's opinion as evidence that Bembry's work-related injury had resolved.
*430 Thus, as the weight given to Dr. Godlewski's opinion is for the Board to determine, Zippy Mart, Inc. v. Fender, supra, 170 Ga. App. at 619, 317 S.E.2d 575, the Board was entitled to resolve the conflicting expert evidence by crediting Dr. Godlewski's opinion over Dr. Wilson's. See Elbert County Bd. of Commrs. v. Burnett, supra, 200 Ga.App. at 381-382, 408 S.E.2d 168. Accordingly, the superior court erred in finding that there was no evidence to support the Board's determination.
Judgment reversed.
RUFFIN and BERNES, JJ., concur.
NOTES
[1] Reid v. Ga. Bldg. Auth., 283 Ga.App. 413, 641 S.E.2d 642 (2007).
[2] Wilson v. Aragon Mills, 110 Ga.App. 392, 393, 138 S.E.2d 596 (1964).
[3] Diers v. House of Hines, Inc., 168 Ga.App. 282(1), 308 S.E.2d 611 (1983).
[4] Elbert County Bd. of Commrs. v. Burnett, 200 Ga.App. 379, 381-382, 408 S.E.2d 168 (1991).
[5] Worthington Indus. v. Sanks, 228 Ga.App. 782, 784(2), 492 S.E.2d 753 (1997).
[6] American Fire & Cas. Co. v. Gay, 104 Ga.App. 840, 846(2), 123 S.E.2d 287 (1961).
[7] Zippy Mart, Inc. v. Fender, 170 Ga.App. 617, 619, 317 S.E.2d 575 (1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331682/ | 243 Ga. 397 (1979)
254 S.E.2d 326
BROWN
v.
MINTER.
34397.
Supreme Court of Georgia.
Argued January 16, 1979.
Decided March 6, 1979.
Rehearing Denied March 28, 1979.
Ferrin Y. Mathews, W. Roy Mays, III, Thomas F. Cuffie, for appellant.
Hansell, Post, Brandon & Dorsey, David J. Bailey, Albert G. Norman, Jr., for appellee.
UNDERCOFLER, Presiding Justice.
James G. Minter, Jr., an editor of the Atlanta Journal acting in his capacity as a private citizen, sought to inspect certain records representing completed investigations by the Internal Investigation Unit of the Atlanta Police Department. The Department denied him permission to do so and he brought this action for mandamus in the Superior Court of Fulton County under the Georgia Open Records Act (Ga. L. 1959, p. 88, as amended), Code Ann. § 40-2701 et seq. After an evidentiary hearing, the trial court ordered the issuance of the mandamus. It found the records sought were identifiable public records and that Minter had shown he had a clear legal right to inspect them. The court also found the Department had, to a limited extent, carried its burden of showing certain information was prohibited under the exceptions permitted under the Act, i.e., disclosure of information regarding on-going investigations; the names of informants, and in exceptional and necessarily limited cases, the names of complainants. The trial court arrived at these decisions after hearing evidence and by applying the balancing test set forth by this court in Northside Realty Assoc. v. Community Relations Comm. &c. of Atlanta, 240 Ga. 432, 435 (241 SE2d 189) (1978). We affirm.
1. "In determining whether allowing the appellants to inspect these records would be in the public interest, the trial court must weigh factors militating in favor of inspection ... against factors militating against inspection ... In this regard, the court must weigh the benefits accruing to the government from non-disclosure against the harm which may result to the public if such records are not made available." Northside Realty, supra, at 435. Accord, Houston v. Rutledge, 237 Ga. 764, 766 (229 SE2d 624) (1976). We conclude the balancing test set out above was properly imposed and the restrictions against disclosure of certain information in this case appear reasonably tailored to protect the public interest and meet the objections of the Department. We find no error.
2. Appellant's contention that the burden of showing *398 the commissioner had a legal duty to perform under this Act lies upon the plaintiff is incorrect. "...[I]f it is found that the appellants have made a request for identifiable public records within the appellees' possession, the burden is cast on the appellees to explain why the records should not be furnished." Northside Realty, supra, at 436. Accord, Houston v. Rutledge, supra (Ingram, J., written concurrence.) Cases cited by appellant, i.e., Trussell v. Martin, 207 Ga. 553 (63 SE2d 361) (1951); and City of Decatur v. Fountain, 214 Ga. 225 (104 SE2d 117) (1958) are inapposite.
3. It was not error to deny appellant's motion to dismiss. The trial court's in camera inspection considered whether disclosure was proper under the express exceptions granted under the Act and permitted the commissioner a discretion to withhold the names of complainants or others where exceptional and necessarily limited circumstances existed constituting a clear unwarranted invasion of privacy. See Department of the Air Force v. Rose, 425 U. S. 352 (96 SC 1592, 48 LE2d 11) (1976).
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331687/ | 273 S.C. 79 (1979)
254 S.E.2d 301
HARTFORD ACCIDENT AND INDEMNITY COMPANY, Respondent,
v.
John W. LINDSAY, Chief Insurance Commissioner, Appellant. In re Appeal by HARTFORD ACCIDENT AND INDEMNITY COMPANY from an Order of the Chief Insurance Commissioner.
20938
Supreme Court of South Carolina.
April 17, 1979.
*80 *81 Thomas C. Salane and E.W. Laney, III, of Turner, Padget, Graham & Laney, Columbia, for appellant.
Heyward McDonald of Rogers, McDonald, McKenzie, Fuller & Rubin, Columbia, for respondent.
April 17, 1979.
Per Curiam:
The circuit court reversed an order of the Chief Insurance Commissioner and the ruling of the Governing Board of the South Carolina Reinsurance Facility. The effect of his order was to rule that the Insurance Commissioner erred in holding that Hartford Accident and Indemnity Company used excessively and unreasonably its right to cede premiums on South Carolina automobile insurance as reported by its most recently filed annual statement. The Insurance Commissioner has appealed.
Three questions are set forth in the brief of the Insurance Commissioner. Questions 1 and 2 are fully set forth in the judge's order and properly resolved. His order, with deletions, will be printed as the directive of this court.
The third question raises an issue of estoppel, which is found to be without merit and is disposed of under our Rule 23.
The order of Circuit Judge Walter Bristow is as follows:
*82 ORDER OF CIRCUIT COURT
This appeal by Hartford Accident and Indemnity Company, Appellant, is from an order of John W. Lindsay, Chief Insurance Commissioner, dated April 15, 1977, confirming a decision of the Governing Board of the South Carolina Reinsurance Facility by which the appellant was assessed a penalty of $196,400 for alleged excessive cessions to the Facility during the 1975-76 Facility fiscal year. The appeal is taken under the provisions of Section 38-3-210 of the South Carolina Code of Laws of 1976. The matter is before me upon the certified transcript of record of the proceedings below as well as a supplemental stipulation of facts.
In 1974 the General Assembly of the State of South Carolina enacted the South Carolina Automobile Reparation Reform Act of 1974, Act 1177, which effected a sweeping reform of automobile insurance law in this state. Establishing a mandate of coverage for all automobile insurance risks, Act 1177 required all insurers to accept and to write any and all risks as a condition for doing business. Recognizing the added burden thereby imposed upon insurers, the legislature also created the South Carolina Reinsurance Facility, a nonprofit, unincorporated legal entity designed to reinsure risks ceded to it by members. Foreseeing the potential for abuse of the Facility, and in order to prevent insurers from taking unfair advantage of others by ceding more than a fair share of their risks, the Legislature clearly defined what would constitute prohibited overuse of the cession privilege by the language of Section 38-37-950, the first paragraph of which states:
"Unreasonable or excessive use of Facility by insurers. It is the intent of Articles 1 to 15 of this Chapter that the Facility shall not be excessively nor unreasonably utilized by automobile insurance insurers for unfairly competitive purposes or for purposes of unfairly discriminating against certain classes or types of automobile insurance risks having the same or similar objective risk characteristics as other *83 risks in the same class under the rating plan for the classification of risks promulgated by the Bureau; nor for the purpose of discriminating against such risks or any risks in certain rating territories. Every such unreasonable or excessive utilization of the Facility shall be prohibited by the Commission."
After stating in the first paragraph of the section that unreasonable or excessive use of the facility for purposes of unfair competition or discrimination should be prohibited by the Commission, the Legislature then went further and set out a guide line to show when it considered that a prima facie showing of such unreasonable or excessive use had been made. The second paragraph of Section 38-37-950 reads as follows:
"A prima facie case of excessive or unreasonable utilization shall be established upon a showing that an automobile insurance insurer or a group of such insurers under the same management has ceded or is about to cede more than thirty-five percent [35%] of total direct risk premiums on South Carolina automobile insurance as reported in the most recently filed annual statements(s) of such insurer or group."
Pursuant to the statutory mandate (Code Section 38-37-730) the Reinsurance Facility adopted a plan of operation approved by the Insurance Commission. As stated by the Chief Insurance Commissioner in his order, in its first plan of operation the Facility adopted a limitation of 35% on the ceding of premiums based "on total direct written premiums on South Carolina Motor Vehicle Insurance as reported in the last annual statement of such member ..."
On September 24, 1975, the Governing Board of the Facility amended its plan of operation so as to delete the requirement that the 35% limitation be based upon the "last annual statement," and provided that:
*84 "No member may cede more than 35% of its total current direct written premiums on South Carolina Motor Vehicle Insurance...."
It is stipulated and agreed that by the close of the 1975-76 fiscal year, Hartford had exceeded the changed cession premium limitation by $97,838.00, representing 37.58% of all its eligible business for the fiscal year based on the amended formula of "current direct written premiums." It is also stipulated that if the cession limitation were to be based on the previous year's business as reflected in the 1975 annual statement filed with the Chief Insurance Commissioner, Hartford would have ceded less than 35% of its eligible business.
Chapter 02, Rule 5, of the South Carolina Reinsurance Facility Manual provides that companies who exceed the 35% cession limitation will be required to participate in the losses of the Facility to the extent of $2.00 for each premium dollar of overcession. This is in effect a fine or penalty which is imposed automatically upon the finding of an amount of cession over 35%. No finding of unfair competition, discrimination, excessiveness, or unreasonableness is required by the Manual for this fine or penalty to be imposed.
Pursuant to this rule, Hartford was assessed to participate in the losses of the Facility to the additional extent of $196,400.00. From this assessment Hartford appealed to the Board of Governors of the Facility, which denied the appeal at its meeting of January 26, 1977. Appeal was then taken to the Insurance Commission, which appeal was denied by order of the Chief Insurance Commissioner dated April 15, 1977.
At the outset, this Court is faced with a question of the interpretation of the statute. Ignoring for the moment such questions as to whether a penalty is a prohibition and whether and to what extent a prima facie case can be rebutted, I first consider what was intended by the Legislature in the second paragraph of Section 38-37-950 in limiting cessions to 35% *85 of premiums "as reported in the most recently filed annual statement(s) of such insurer or group."
I am not at liberty to discard these words from the statute. Full effect must be given to each section of a statute, giving words their plain meaning, and, in the absence of ambiguity, words must not be added or taken away. Home Building & Loan Ass'n v. City of Spartanburg, 185 S.C. 313, 194 S.E. 139 (1938). While it is not conclusive, it is proper in construing a statute to consider legislation dealing with the same subject matter as an aid in construction. Southern Ry. Co. v. S.C. State Highway Dept., 237 S.C. 75, 115 S.E. (2d) 685 (1960).
Code Section 38-5-1300 requires that every insurance company doing business in South Carolina file a financial statement on or before the first day of March of each year. This statement is commonly referred to as the annual statement, and it would normally reflect the premium income of a company for an annual period. This statement can be used to determine the direct written automobile premiums for the preceding year and the 35% figure derived therefrom. Prior to the September 1975 amendment to the plan of operation, this was the method used by the Facility. And indeed the minutes of the meeting of the Board of Governors of July 31, 1975, indicate that in order that there be no misunderstanding as to when the proposed change in method should take place, it is specifically stated therein that "(i)t was understood that the minutes of this meeting would show that the basis of Cession Limitation for fiscal year October 1, 1974, to September 30, 1975, would be the 1974 Annual Statement.
Generally, in statutes regulating insurance in South Carolina, when the words "annual statement" are used, they refer to the annual statement required by Code Section 38-5-1300 to be filed annually with the Commissioner. Thus we find in Section 38-5-1310 reference to the "Last annual statement," *86 in XX-X-XXXX "its annual or other statement required by law," in 38-5-630 "1970 annual statement," in 38-5-640 "all annual statements for the year 1962," in 38-5-770(1)(a) (iii) "the annual statement of the reinsurer" and "each such annual statement," in 38-5-780 "any annual or other statement," and in XX-X-XXXX "insurer's annual statement." This list does not purport to be exhaustive, merely indicative of the common use of the term in insurance legislation.
I therefore conclude that the determination of a prima facie violation of Section 38-37-950 must be based upon a cession of more than 35% of the total direct risk premiums on South Carolina automobile insurance as reported on the most recently filed annual statement of such insurer, and that this reference to the "most recently filed annual statement" means the annual statement required to be filed by Code Section 38-5-1300.
It is therefore equally apparent that the 35% limitation adopted by the Facility cannot be used to determine a prima facie violation of Section 38-37-950.
The Court therefore holds that the statute requires the use of the annual statement of Section 38-5-1300 to establish whether or not there has been a prima facie violation of Section 38-37-950. It then follows that the Facility had no authority to establish another prima facie test based on current written premiums. The appellant was therefore not prima facie in violation of the statute prohibiting overcessions.
The further question is then presented as to whether or not appellant was in fact guilty of "unreasonable or excessive use ... for unfairly competitive purposes... or for purposes of unfair discrimination" as proscribed by the Act. In that regard there is no such finding by the Facility, by the Board of Governors of the Facility, by the Insurance Commission, or by the April 15, 1977, order of the Chief Insurance Commissioner from which this appeal *87 was taken. Commissioner Lindsay refers in his order to a lack of prudent underwriting and management by appellant but nowhere in the transcript of record certified by the Commission to this Court or in the stipulation of facts is there any factual finding by anyone that appellant had unreasonably or excessively used the Facility for unfairly competitive purposes or for purposes of unfairly discriminating against certain classes or types of automobile insurance risks. To the contrary the transcript contains in large part rebuttal of any such inference of wrongdoing on the part of appellant. Even if it might be contended that the imposition of the penalty against Hartford was an implicit finding by the Facility or the Commission of such unreasonable or excessive use for unfair competitive purposes or for unfair discrimination, after a thorough review of the record, I conclude that such an implicit finding would be unsupported by any substantial evidence, would be clearly erroneous in view of the reliable, probative and substantial evidence in the whole record, and therefore should be reversed.
Having concluded that the Facility applied an unauthorized test to find Hartford in prima facie violation of the Act in violation of the statutory provisions creating the Facility, and that there is no showing otherwise that Hartford was in fact in violation of the act, it follows that the action of the Facility was in excess of its statutory authority, that the decision of the Chief Insurance Commissioner affirming that action was affected by error of law, and Hartford is entitled to relief from the penalty imposed upon it.
The foregoing holding makes it unnecessary to consider the additional grounds of appeal concerning the nature of the penalty and the Facility's authority to impose it in this case.
IT IS THEREFORE, ORDERED:
1. That the order of the Chief Insurance Commissioner dated April 15, 1977, be, and it is hereby, reversed and set aside.
*88 2. That the Governing Board of the South Carolina Reinsurance Facility is ordered to take appropriate steps to refund to appellant such penalty as may have been assessed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262883/ | 240 P.3d 795 (2010)
In the Matter of the Personal Restraint Petition of Wayne Allen NEWLUN, Petitioner.
No. 63810-6-I.
Court of Appeals of Washington, Division 1.
October 4, 2010.
*796 Maureen Cyr, Washington Appellate Project, Seattle, WA, for Appellants.
Mary Kathleen Webber, Snohomish County Prosecutor's Office, Everett, WA, Ann Summers, King County Prosecutor's Office, Seattle, WA, for Respondents.
APPELWICK, J.
¶ 1 Newlun pleaded guilty to a number of identity theft and forgery charges in King and Snohomish counties. Newlun contends in his personal restraint petition that his three convictions for identity theft violate double jeopardy.[1] Because Newlun cannot demonstrate a double jeopardy violation on the face of the record at the time of his pleas, we deny the petition.
FACTS
¶ 2 In November and December 2005, Newlun unlawfully possessed and used a means of identification or financial information of Guy Michael Randal. In January 2006, the State charged Newlun with, among other charges, identity theft in the first degree in violation of former RCW 9.35.020(1) and .020(2) (2004) under Snohomish County Superior Court cause no. 06-1-00241-0 (case I). In that case, the information charged Newlun with using "[i]dentification belonging to Guy Randal" on or about November 16, 2005.
¶ 3 The State filed a separate information under Snohomish County Superior Court cause no. 06-1-00648-2 (case II), in March 2006. The State charged Newlun with, *797 among other things, identity theft in the second degree. The information charged Newlun with using a "means of identification and financial information of a person, to-wit: Guy Randal" on or about December 14, 2005.
¶ 4 In June 2006, Newlun pleaded guilty in both Snohomish County cases.[2] In each statement of defendant on plea of guilty (plea form), Newlun agreed that the court could consider the affidavits of probable cause filed in each case.[3] The affidavit of probable cause for case I stated, "The defendant had presented Guy Randal's ID [identification] with his (the defendant's) picture and signed the rental agreement as Guy [Randal]" to rent a truck from Lowe's Home Improvement. The affidavit of probable cause for case II stated that Newlun presented a driver's license with the name Guy Randal along with a check to a clerk at a Safeway store.
¶ 5 On July 20, 2006 the Washington Supreme Court, for the first time, addressed the unit of prosecution for identity theft under former RCW 9.35.020 in State v. Leyda,[4] 157 Wash.2d 335, 337-38, 138 P.3d 610 (2006). The court held that once a defendant unlawfully obtains a victim's means of identification or financial information, the unit of prosecution includes all subsequent unlawful uses of the victim's means of identification or financial information. Id. at 345, 138 P.3d 610.
¶ 6 In August 2006, the State sentenced case I, case II, and a third case filed under a separate cause number resulting in a total term of confinement of 141 months.
¶ 7 In December 2006, the State, in King County, charged Newlun with identity theft in the second degree in violation of former RCW 9.35.020(1) and .020(3). The information charged Newlun with using the "name, date of birth, and driver's license number of... Guy Michael Randal" on December 19, 2005. In that case, Newlun had attempted to use the driver's license to cash two checks at the Northgate Money Tree. Newlun pleaded guilty in January 2007. The appendix to the plea agreement listed all of the Snohomish County convictions. King County imposed a sentence of 57 months concurrent with the Snohomish County cases.
¶ 8 Newlun appealed case I, challenging his exceptional sentence, and this court affirmed the convictions. State v. Newlun, 142 Wash.App. 730, 176 P.3d 529, review denied, 165 Wash.2d 1007, 198 P.3d 513 (2008). The mandate for the appeal was issued in February 2009. Newlun did not appeal the other related cases or the King County case.
¶ 9 Newlun then filed this PRP. This court dismissed the petition as to Newlun's claims that the plea was involuntary and that the prosecutor breached the plea agreement. But, this court referred the double jeopardy claim to this panel and appointed counsel.
DISCUSSION
¶ 10 Newlun contends in this PRP that, based on the Supreme Court's decision in Leyda, two of his convictions violate double jeopardy by punishing him twice for the same unit of prosecution.
¶ 11 The double jeopardy provisions of the United States and Washington State Constitutions preclude convicting a defendant more than once under the same criminal statute if only one "unit" of the crime has been committed. See U.S. CONST. amend. V; *798 CONST. Art. I, § 9; State v. Tvedt, 153 Wash.2d 705, 710, 107 P.3d 728 (2005). Claims of double jeopardy are questions of law, reviewed de novo. State v. Jackman, 156 Wash.2d 736, 746, 132 P.3d 136 (2006).
I. Standard of Review
¶ 12 A person filing a personal restraint petition is entitled to relief if he is under an unlawful restraint as defined in RAP 16.4. A restraint is "unlawful" where "[t]he conviction was obtained ... in violation of the Constitution of the United States or the Constitution ... of the State of Washington." RAP 16.4(c)(2). An appellate court will grant substantive review of a personal restraint petition only when the petitioner makes a threshold showing of constitutional error from which he has suffered actual prejudice or nonconstitutional error which constitutes a fundamental defect that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wash.2d 802, 811-12, 792 P.2d 506 (1990). In a personal restraint petition, the petitioner bears the burden of showing prejudicial error. State v. Brune, 45 Wash.App. 354, 363, 725 P.2d 454 (1986).
II. Motion to Strike
¶ 13 Snohomish County moved to strike appendix A and B from Newlun's reply to respondent's reply brief. The appendices contain documents ostensibly from the police investigation into the charges filed under case I. Appendix A contains a photocopy of a driver's license under the name of Guy Randal and an insurance identification card under the name of Wayne Lenik. Appendix B contains the statement of witness Jonathan Graham, an employee of Lowe's Home Improvement. Graham stated in the document that he provided the police with a copy of the "WA [Washington] State driver's license" and an insurance card provided by Newlun. These documents were not included in the package of documents presented to the judge at the time of Newlun's pleas.[5]
¶ 14 In United States v. Broce, 488 U.S. 563, 573-75, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), the Supreme Court held that a defendant who has entered a plea of guilty to a criminal charge may not assert a double jeopardy claim in a collateral attack upon the sentence unless an exception applies. Under the exceptions, the claim is not waived if either the plea entered was not knowing and voluntary or the government had no right to bring the charges at all. Id. See also State v. Martin, 149 Wash.App. 689, 691, 205 P.3d 931 (2009) ("An indivisible plea of guilty does not prevent a double jeopardy challenge based on the same offense theory where the violation is clear from the record and was not otherwise waived."). To show that the government had no right to bring the charges on double jeopardy grounds, the judge must have been able to determine that the convictions violated double jeopardy by the record in front of that judge at the time of accepting the plea. Broce, 488 U.S. at 575, 109 S.Ct. 757. Washington has followed this rule, requiring that after a guilty plea, the double jeopardy violation must be clear from the record presented on appeal, or else be waived.[6]State v. Knight, 162 Wash.2d 806, 811, 174 P.3d 1167 (2008).
¶ 15 The parties agree that an appellate court is permitted to review a double jeopardy claim made on collateral attack only if the record is sufficient to establish the violations. But, the parties dispute whether the record included appendix A and appendix B.
¶ 16 The court may review documents expressly included in the plea form. See, e.g., State v. Codiga, 162 Wash.2d 912, 917, 175 P.3d 1082 (2008) (noting that the court could review the police reports and statement of probable cause for the factual basis for the plea since Codiga agreed to such in the plea form); In re Pers. Restraint of Shale, 160 Wash.2d 489, 496, 158 P.3d 588 (2007) (reviewing police reports incorporated by Shale *799 in his guilty plea to determine factual basis for charges) (plurality), overruled on other grounds by Knight, 162 Wash.2d 806, 174 P.3d 1167; State v. Knight, 134 Wash.App. 103, 110, 138 P.3d 1114 (2006) (considering police reports referenced in the plea form), aff'd, 162 Wash.2d at 806, 174 P.3d 1167.
¶ 17 In the plea form for case I, Newlun expressly incorporated the affidavit of probable cause. The affidavit of probable cause referenced other documents stating, "The following information is taken from police reports and witness statements provided by the Everett and Bothell Police Departments." This reference does not expressly incorporate appendices A and B into the record before the trial judge accepting the plea. Those documents were not properly part of the record before the trial court under Broce and we grant the motion to strike them from the record before us.
III. Double Jeopardy
¶ 18 After striking the disputed documents, we consider whether Newlun waived his double jeopardy claim. Where a double jeopardy violation is clear from the record before the trial court judge accepting the plea, the double jeopardy claim is not waived. Broce, 488 U.S. at 573-75, 109 S.Ct. 757; Menna v. New York, 423 U.S. 61, 62-63, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Knight, 162 Wash.2d at 811, 174 P.3d 1167. As petitioner, Newlun bears the burden of showing prejudicial error, and any deficiencies in the record must be weighed against him. See Brune, 45 Wash.App. at 363, 725 P.2d 454.
¶ 19 The record is insufficient to overcome waiver in the Snohomish County cases. Although the record in case II specifies that Newlun used Randal's driver's license, the record in case I does not specify the particular means of identification or financial information. The record only establishes that Newlun presented "Guy Randal's ID with his (the defendant's) picture."
¶ 20 We recognize that at the time Newlun pleaded in the Snohomish County cases, the Supreme Court had not issued Leyda to clarify the unit of prosecution. But, Broce makes it clear that "`a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.'" 488 U.S. at 572, 109 S.Ct. 757 (quoting Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). Because the record cannot prove the violation, Newlun waived his ability to collaterally attack the Snohomish County convictions on double jeopardy grounds.
¶ 21 The record is equally deficient in King County. The record in that case specified that Newlun used Randal's driver's license during the criminal activity that gave rise to the King County charges. The record also demonstrated that Newlun had been convicted of identity theft in Snohomish County. But, the record did not specify the name of the victim or what form of identification Newlun used in his Snohomish County convictions, even though the Supreme Court had issued its decision in Leyda clearly defining the unit of prosecution. The record before the judge accepting Newlun's plea in the King County case does not establish grounds for the double jeopardy claim.
¶ 22 In both the Snohomish County cases and the King County case, the trial judge could not have made the determination that entering judgment upon Newlun's guilty plea would result in a double jeopardy violation from the existing record. Newlun waived his ability to challenge the convictions on double jeopardy grounds by pleading guilty.
¶ 23 We need not reach Snohomish County's additional arguments.
¶ 24 We deny the petition.
WE CONCUR: LAU, J., and DWYER, C.J.
NOTES
[1] Newlun filed this personal restraint petition challenging his convictions and sentences in King County Superior Court no. 06-1-10264-5 SEA and Snohomish County Superior Court nos. 06-1-00241-0, 06-1-00223-1, and 06-1-00648-2.
[2] Although subject to this personal restraint petition, Snohomish County cause no. 06-1-00223-1 related to different victims and is therefore not relevant here.
[3] Both plea forms stated, "I am aware that an Affidavit of Probable Cause has been filed in this case. The court may consider this Affidavit in deciding whether there is a factual basis for my plea."
[4] The law in effect at the time of Newlun's crimes was that the unit of prosecution for identity theft was the use of the victim's means of identification or financial information. See, e.g., State v. Leyda, 122 Wash.App. 633, 637-38, 94 P.3d 397 (2004). That case was reversed by State v. Leyda, 157 Wash.2d 335, 345, 138 P.3d 610 (2006).
The Legislature amended the identify theft statute after Leyda, expressly rejecting the Supreme Court's holding. Laws of 2008, ch. 207, §§ 3-4. The new statute took effect June 12, 2008. Laws of 2008, at ii (see (5)(a) setting out the effective date). The statute now clarifies that "[e]ach crime prosecuted under this section shall be punished separately under chapter 9.94A RCW." RCW 9.35.020(4).
[5] Newlun argues appendix A and B were included by reference, but no one asserts that the documents were physically present or specifically brought to the trial judges' attention at the hearings.
[6] The record on appeal is the portion of the record before the trial court designated by the parties. See generally RAP 9.1, 9.6. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262960/ | 31 Cal.App.4th 795 (1994)
37 Cal. Rptr.2d 469
THE PEOPLE, Plaintiff and Respondent,
v.
JAMES MARSHALL COWAN, Defendant and Appellant.
Docket No. H011894.
Court of Appeals of California, Sixth District.
December 22, 1994.
*797 COUNSEL
Frieda Jo Molnar, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Willimson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias and Jeremy Friedlander, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
COTTLE, P.J.
Defendant James Marshall Cowan was charged by information with possession of methamphetamine for sale (Health & Saf. Code, § 11378). After his motion to suppress evidence (Pen. Code, § 1538.5) was denied, defendant pleaded no contest to the charge. The court suspended imposition of sentence and placed defendant on probation for three years upon condition, inter alia, that he serve four months in county jail. On appeal defendant contends the trial court erred by deciding that defendant "did not have standing to object to the initial entry." For the reasons stated below, we shall affirm the judgment.
FACTS
At approximately 6:30 p.m. on February 1, 1993, San Jose Police Officers Valencia and Elvander went to apartment 2 at 2331 Pauline Drive to investigate a reported "narcotics violation." Hoyt Henry answered the door. Officer Valencia asked to come in to talk to him, and Henry consented, saying, "Come in, sir." Inside the apartment Valencia saw defendant, another male, and a female. As the police entered, defendant concealed a blue container in a "gap" in the modular couch on which he was sitting. Valencia instructed defendant to "take his hand out real slowly," and defendant did so.
Henry was arrested for being under the influence of a stimulant. Valencia also found methamphetamine in Henry's possession. Officer Elvander then removed the container defendant had concealed in the gap. The container contained off-white powder and rocks which, in turn, contained methamphetamine.
DISCUSSION
The trial court denied defendant's motion to suppress evidence on the ground that defendant had failed to show that he had standing to contest the *798 officers' entry into the apartment. (1a) Defendant's contention that he had standing because "[h]e had visited the apartment several times before and had full use of it even when the host was not at home" is meritless.
(2) "`The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. [Citations.]' [Citations.]" (People v. Moreno (1992) 2 Cal. App.4th 577, 582 [3 Cal. Rptr.2d 66].)
"What the moving party must show is `"... an actual (subjective) expectation of privacy," ... [and the] subjective expectation of privacy is "one that society is prepared to recognize as `reasonable,'" ...' [Citations.]" (People v. Moreno, supra, 2 Cal. App.4th at p. 582.)
(1b) The following evidence was adduced on the issue of defendant's standing to contest the officers' entry into the apartment. Mark Hoiem was the owner of apartment 2 at 2331 Pauline Drive. As of February 1, 1993, Hoyt Henry had been living there for "a couple of months." On February 1, Hoiem was out test-driving Henry's car in preparation for buying it. Henry therefore was without a car. At approximately 3:30 p.m. defendant picked up Henry and took him to the post office. Defendant did not come inside the apartment at that time. Defendant did enter the apartment with Henry when the two men returned from the post office. He had Henry's "permission to be in the house." (Italics added.) He moved about the apartment, "got a soda out of the refrigerator," used the bathroom and "had full use of the facilities." The police arrived a half hour after defendant and Henry returned to the apartment. According to Henry, when he contacted Hoiem that day, he told Hoiem that defendant "was coming over."
Defendant testified he was not sure if Hoiem knew he was at the apartment on this occasion but that he had been there with Hoiem before, that there was no problem with him being there, and that he had "a standing invitation."
In Minnesota v. Olson (1990) 495 U.S. 91 [109 L.Ed.2d 85, 110 S.Ct. 1684], the Supreme Court held that "... status as an overnight guest is alone enough to show that [a person] had an expectation of privacy in the home that society is prepared to recognize as reasonable." (Id. at pp. 96-97 [109 L.Ed.2d at pp. 92-93].) It is uncontested that defendant was not an overnight guest.
The court explained its reasoning as follows: "From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides *799 him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our safety or the security of our belongings. It is for this reason that ... when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel, or the home of a friend. Society expects at least as much privacy in these places as in a telephone booth `a temporary private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable[.]' [Citation.] [¶] That the guest has a host who has ultimate control of the house is not inconsistent with the guest having a legitimate expectation of privacy. The houseguest is there with the permission of his host, who is willing to share his house and his privacy with his guest. It is unlikely that the guest will be confined to a restricted area of the house; and when the host is away or asleep, the guest will have a measure of control over the premises. The host may admit or exclude from the house as he prefers, but it is unlikely that he will admit someone who wants to see or meet with the guest over the objection of the guest. On the other hand, few houseguests will invite others to visit them while they are guests without consulting their hosts; but the latter, who have the authority to exclude despite the wishes of the guest, will often be accommodating. The point is that hosts will more likely than not respect the privacy interests of their guests, who are entitled to a legitimate expectation of privacy despite the fact that they have no legal interest in the premises and do not have the legal authority to determine who may or may not enter the household. If the untrammeled power to admit and exclude were essential to Fourth Amendment protection, an adult daughter temporarily living in the home of her parents would have no legitimate expectation of privacy because her right to admit or exclude would be subject to her parents' veto." (Minnesota v. Olson, supra, 495 U.S. at pp. 99-100 [109 L.Ed.2d at pp. 94-95].)
A houseguest therefore has a legitimate expectation of privacy in the home where he is staying because that residence has become his substitute home both in his own mind and in the mind of his host.
While the People concede there may be "extraordinary situations" in which one "need not be an overnight guest to achieve a legitimate expectation of privacy in a residence," they argue that defendant made no such showing here. We agree.
*800 Defendant did not demonstrate that he had authority to be in the apartment alone,[1] to enter without permission, to store anything there, to invite anyone (with or without the host's approval), or to visit without advance notice. Defendant said he had a "standing invitation" and that he had visited in the past when Hoiem was not present, but Henry testified that Hoiem gave permission for defendant to be at the apartment on February 1, which strongly suggested that defendant lacked permission to enter on his own. There was no evidence that defendant had ever stayed at the apartment for an extended time. At most, the evidence showed that defendant was someone who had visited in the past and who was allowed to use the apartment when he visited.
In U.S. v. McNeal (6th Cir.1992) 955 F.2d 1067, 1070-1071, the court upheld a lower court finding of no standing based on factual findings that the defendant was nothing more than "`a casual, transient visitor'" on the night in question. (Id., at p. 1070.) The defendant had such status even though he had a key to the apartment. (Ibid.) The court noted that he also had the keys to several other apartments. (Ibid.) McNeal establishes that the independent ability to use an apartment does not, without more, confer a legitimate expectation of privacy in the place. (See also U.S. v. Maddox (6th Cir.1991) 944 F.2d 1223, 1234 ["... a guest at a party does not have a reasonable expectation of privacy in items found in the house at which the party occurs"].)
Defendant's reliance upon People v. Moreno, supra, 2 Cal. App.4th 577, is misplaced. Moreno held that a babysitter has a legitimate expectation of privacy in the premises where he or she is babysitting. The court reached this conclusion based on the fact that a babysitter "[b]y definition" has "exclusive control" over the premises, "normally has the flexibility to go to any and all parts of the residence in order to discharge his or her duties," and babysitting "`is a longstanding social custom that serves functions recognized as valuable by society.'" (Id., at pp. 584-585, quoting Minnesota v. Olson, supra, 495 U.S. at p. 98 [109 L.Ed.2d at p. 94].) Defendant argues that "[b]y parity of reasoning, the same is true here. Appellant had full reign over Mr. Hoiem's residence in that he was permitted to come and go in his host's absence." This argument fails because there was no evidence that defendant was permitted to come and go on his own without either Henry or Hoiem being present and because "the many unique features of the babysitter role transcend the bare fact of simply being on the premises at a *801 particular point in time." (People v. Moreno, supra, 2 Cal. App.4th at p. 586.) In the instant case, the evidence showed that defendant came to the apartment only with Henry's permission. At most, defendant established his legitimate presence on the searched premises by invitation. Defendant did not have control over the premises in any sense and accordingly, he did not have a legitimate expectation of privacy under Moreno or Olson.
DISPOSITION
The judgment is affirmed.
Wunderlich, J., and Mihara, J., concurred.
Appellant's petition for review by the Supreme Court was denied March 29, 1995.
NOTES
[1] Defendant's claim that the evidence showed he "had full use of [the apartment] even when his host was not at home" is belied by the record. The evidence in fact showed only that defendant had "full use of the facilities" on the particular occasion he was there with Henry. Defendant did testify that he had "come and gone" from the premises when Hoiem was not home with Hoiem's permission; however, the record does not reveal whether or not Henry was at the apartment when Hoiem was not. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331633/ | 285 S.E.2d 483 (1981)
Robert DANIELS, et al.
v.
John H. McCULLOCH, Mayor, etc., et al.
No. 15291.
Supreme Court of Appeals of West Virginia.
December 18, 1981.
*484 Thornhill, Kennedy & Vaughan and W. A. Thornhill, III, Beckley, for appellants.
Lee H. Adler, Beckley, for appellees.
PER CURIAM:
This case arose in 1980 when the appellees, all City of Beckley police officers, filed suit for injunctive relief to prohibit the Mayor of Beckley from completing the promotions of appellants George Campbell and Carl Jones from officer to the rank of sergeant. The suit also sought a declaratory judgment that any attempt at promotion pursuant to a written examination given on January 9, 1979, be declared null and void and that the examination itself be declared void. The trial court granted both the declaratory and the injunctive relief and declared the promotions null and void. From this order the appellants appeal. For the reasons set forth below, we affirm.
In December of 1978 the Beckley Policemen's Civil Service Commission gave notice that a written promotional examination would be given on January 9, 1979, for the purpose of selecting two qualified applicants for the position of sergeant. No rules or regulations concerning the promotional process had been promulgated; however, educational handouts were made available to the candidates to help them prepare for the examination.
A total of twenty-three police officers took the test. On the night it was administered the President of the Commission (James Higgins) informed the applicants that certain weights would be placed on the three different aspects of the promotional process, i.e. personal interviews, the candidate's individual work record, and the examination. The examination would be weighted at approximately 60% and the other two factors at 20% each. After the Commission reviewed the work records of the officers, the members decided that the records were of no value in determining qualifications of the candidates and instead based their assessment of each candidate's experience on the number of years of service.
Appellants Jones and Campbell had the highest scores on the written examination, and also the highest composite scores from the other factors which were considered. On January 20, 1979, Higgins notified the Chief of Police that the two appellants were to be promoted. On January 21, 1979, the two men began their classes at the West Virginia State Police Academy for supervisors. By letter dated February 2, 1979, Higgins informed the Mayor that two candidates had been tentatively certified for promotion.
*485 A separate action from the one before us was filed in the Circuit Court of Raleigh County seeking a writ of mandamus. A show cause order was issued and service was effected on the members of the Commission who all subsequently resigned on February 14, 1979. The appellees instituted this action when they were informed that the two appellants were to be promoted. In short, the crux of the issue in this case is whether the Beckley Policemen's Civil Service Commission failed to comply with the requirements of W.Va.Code, 8-14-6 et seq., the section of our law dealing with civil service for certain police departments.[1]
We believe that the outcome of this case turns on the statutory language of W.Va. Code, 8-14-11 [1969], which states in part:
"The policemen's civil service commission in each Class I and Class II city shall make rules and regulations providing for both competitive and medical examinations for appointments and promotions to all positions in the paid police department in such city, and for such other matters as are necessary to carry out the purposes of the civil service provisions of this article. Any such commission shall have the power and authority to require by rules and regulations a physical fitness examination as a part of its competitive examination or as a part of its medical examination. Due notice of the contents of all such rules and regulations and of any modifications thereof shall be given, by mail, in due season, to the appointing officer; and said rules and regulations and any modifications thereof shall also be printed for public distribution."[2]
One of the appellees' principal complaints below was that no written rules or regulations were promulgated as required by this section of our Code. The appellants rely upon Hall v. Protan, 156 W.Va. 562, 195 S.E.2d 380 (1973) and contend that because the evidence shows that the test was fairly administered it cannot be invalidated as a matter of law for violation of this requirement. We agree that violation of this section of the Code will not automatically invalidate a promotional examination. In Hall v. Protan, supra, this Court declined to adopt such a rule in a case involving the Deputy Sheriff's Civil Service Act, W.Va. Code, 7-14-1 to 21. In so doing we said:
"It is obvious that the lack of rules and regulations concerning the administering of an examination might well prejudice an applicant who may or may not be placed in peril by having to respond `in the blind' to examination procedures. The civil service commission on the other hand contends that the examination was obtained from the state civil service commission and is the same as administered throughout the State by county civil service commissions and that they in good faith attempted to comply with the provisions of the Act. Whether or not this is so, and whether or not the relators have been prejudiced by the procedures, should be fully developed at an evidentiary hearing." [156 W.Va. at 567-568, 195 S.E.2d 380].
Contrary to the facts of Hall, an evidentiary hearing was held in the case before us and evidence was elicited on whether any potential candidates for promotion were prejudiced by the methods used. Following the hearing the court found that the Commission failed to consider the work records of the applicants contrary to W.Va.Code, 8-14-17 [1969] and contrary to the instructions given to the candidates at the time of the written examination. After reviewing the test results of all the applicants, the trial court found that either of two other candidates could have received the promotions in question if their experience had been considered and the test weighted as originally stated. From this the court reasoned that some candidates "may have been prejudiced by the former Commission's failure to give any weight to *486 experience and likewise its giving more weight than had been indicated for the written examination."
After a careful review of the record we cannot say that the court's findings of fact on this issue were clearly wrong. Hence under the standard set down in Hall v. Protan, supra, we conclude that the trial court was correct in declaring the promotional process defective.
W.Va.Code, 8-14-6 [1969] states that no individual shall be promoted in a paid police department in any manner other than that provided for in the sections that follow it.[3] Section 11 requires rules and regulations to be promulgated by the commission and it is clear from the record that contrary to this section of the law, the commission made no such rules and regulations. Because the regulations did not exist, due notice of their contents and subsequent modification could not be mailed to the appointing officer and printed for public distribution as is also required by Section 11.
The purpose of this act is stated in Syl. pt. 5 of Dougherty v. City of Parkersburg, 138 W.Va. 1, 76 S.E.2d 594 (1953):
"It is the legislative intendment of the police civil service act ... [W.Va.Code, 8-14-6 to 23 [1969]] to provide for a complete and all-inclusive system for the appointment, promotion, reduction, removal and reinstatement of all officers (except the chief of police), policemen and other employees of paid police departments in all municipalities having a population of... [ten thousand] or more."
By failing to adopt a rule which would automatically invalidate every promotion made in violation of W.Va.Code, 8-14-11 [1969], we do not mean to encourage local commissions to ignore the requirement. We merely decline to extend the present rule in this State at this time. The civil service statute should be followed as closely as possible in order to carry out the intent of the Legislature which enacted it. In this case the Commission should now establish rules and regulations before it holds another promotional examination.
We find the appellant's remaining assignments of error to be without merit, and because of our opinion that the promotions in question were invalid because unsuccessful candidates were prejudiced by the failure of the Commission to promulgate rules and regulations, we will not address the other errors.
Accordingly, the judgment of the Circuit Court of Raleigh County is affirmed.
Affirmed.
NOTES
[1] The statute covers members of paid police departments of municipalities having a population of ten thousand or more.
[2] The City of Beckley is classified as a Class II city under W.Va.Code, 8-1-3(2) [1969] having a population in excess of ten thousand but not in excess of fifty thousand.
[3] The applicable portion of W.Va.Code, 8-14-6 [1969] states:
"All appointments and promotions to all positions in all paid police departments of Class I and Class II cities shall be made only according to qualifications and fitness to be ascertained by examinations, which, so far as practicable, shall be competitive, as hereinafter provided. No individual except the chief of police shall be appointed, promoted, reinstated, removed, discharged, suspended or reduced in rank or pay as a paid member of any paid police department,... in any manner or by any means other than those prescribed in the following sections of this article." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331653/ | 160 Ga. App. 19 (1981)
285 S.E.2d 741
PAXTON
v.
THE STATE.
62141.
Court of Appeals of Georgia.
Decided September 17, 1981.
Rehearing Denied October 13, 1981.
Frank Grimsley, for appellant.
Gary C. Christy, District Attorney, for appellee.
SHULMAN, Presiding Judge.
Appellant was found guilty of armed robbery. The victim, Mrs. Pearl Rhodes, testified that on the morning of August 2, 1979, the appellant entered her house without permission and surprised her in her bedroom. Mrs. Rhodes said that she initially believed the intruder to be the minister of music at her church. Subsequent comparison of pictures of the two men revealed a remarkable similarity in their physical appearance. Mrs. Rhodes realized her error when the intruder threatened her with a gun and demanded that she give him all her money. She had no cash in the house so the robber took her billfold which contained numerous credit cards. Appellant was later arrested in Venice, Florida, when a routine license plate check through an NCIC computer revealed that the car he was driving had been reported stolen from West Virginia. A toy pistol was found in the back seat of the car. A billfold taken from the appellant contained Mrs. Rhodes' credit cards.
1. In two enumerations of error, appellant attacks the denial of his motion to suppress. First, he argues that the initial stop by the Venice, Florida, police officer was illegal because the information output of the NCIC computer was not sufficient to establish cause to arrest him. We disagree.
Although there appear to be no Georgia cases directly addressing the issue of whether information from the National Crime Information Center computer can, without more, establish probable cause for an arrest, the United States Court of Appeals for the Fifth Circuit has considered the issue: "While NCIC printouts are not alone sufficient evidence to permit conviction, the cases uniformly recognize that NCIC printouts are reliable enough to form the basis of the reasonable belief which is needed to establish probable cause for arrest." United States v. McDonald, 606 F2d 552, 553. See also Commonwealth v. Riley, 425 A2d 813. We agree with the Fifth Circuit's assessment of the reliability of the NCIC computer and hold that the police officer in Venice, Florida, had probable cause to believe that appellant was driving a stolen car. It follows that the original stop was lawful and so was appellant's arrest.
*20 Appellant's second complaint pertaining to the denial of his motion to suppress concerns the search of his person conducted upon appellant's arrest. He argues that the search exceeded the limitations set out in Terry v. Ohio, 392 U.S. 1 (88SC 1868, 20 LE2d 889). Terry is not applicable to the facts of this case because the appellant was effectively under arrest when the officer handcuffed him. "An arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be." Clements v. State, 226 Ga. 66, 67 (172 SE2d 600). We have previously concluded that the appellant's arrest was lawful. "Once a defendant has been placed under custodial arrest, police may search his person, incident to that arrest, for weapons or contraband." Graves v. State, 138 Ga. App. 327, 329 (226 SE2d 131). The trial judge correctly denied the appellant's motion to suppress.
2. Mrs. Rhodes made an in-court identification of the appellant after the trial judge had ruled that the photographic lineup shown to her was impermissibly suggestive. Appellant argues that the trial court erred in allowing her to do so. "[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (88 SC 967, 19 LE2d 1247). "`[I]f the judge does not find as a matter of law both that the picture spread was impermissibly suggestive and that there is a substantial likelihood of irreparable misidentification, the in-court identification may be put before the jury.' United States v. Sutherland, 428 F2d 1152, 1155 (5th Cir.)" Payne v. State, 233 Ga. 294, 299 (210 SE2d 775). Having already determined that the photographic lineup was impermissibly suggestive, the trial court had to determine whether there was substantial likelihood of misidentification. "Even if the pre-trial identification is `tainted' the in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an `independent origin'. [Cits.]" Code v. State, 234 Ga. 90, 99 (214 SE2d 873). In Mathis v. State, 231 Ga. 401 (202 SE2d 73), an independent origin of identification was shown when the victim was able to give a precise and accurate description of his assailant before he viewed the photographic lineup. Mrs. Rhodes saw the appellant well enough to notice his uncanny resemblance to the minister of music at her church. Her description of the appellant was accurate enough to qualify as an independent identification. "There was sufficient evidence to support a finding that the in-court identification was entirely based upon observations at the time of the robbery and not *21 induced by the conduct of the lineup." Redd v. State, 154 Ga. App. 373, 375 (268 SE2d 423). Therefore, this enumeration of error is without merit.
3. Appellant's earlier conviction on a stolen car charge was introduced into evidence by the prosecution. Appellant contends that this placed his character into issue in violation of Code Ann. § 38-202. "Moore v. State, 221 Ga. 636, 637 (146 SE2d 895) (1966) states the general rule that, `On a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly distinct, independent, and separate from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible, unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other. [Cit.]' Thus, before evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Cit.]" Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515). The first criterion is met in the case at bar, since a previous jury found the appellant guilty of stealing the car.
The case of Emmett v. State, 195 Ga. 517 (25 SE2d 9), concerns, inter alia, the admissibility of the defendant's auto theft conviction into evidence in his murder trial. The Supreme Court, in Emmett, stated: "If the testimony had related merely to the theft of an automobile, its admissibility might be doubtful; but since it concerned the particular automobile that the defendant had in his possession at the time of the homicide, we have no hesitancy in holding that it was admissible for the purpose stated by the judge . . . [T]he offense was a continuing one, and evidence of it would tend to illustrate the defendant's state of mind at the time . . . [Cits.]" Id., p. 538. In the case at bar, an automobile meeting the description of the one occupied by the appellant at the time of his arrest was observed in Mrs. Rhodes' neighborhood on the morning of the robbery. We hold that the admission of the appellant's previous auto theft conviction served to place him at the scene of the crime, to identify him, and to illustrate his bent of mind and course of conduct.
4. A witness for the state was allowed to testify in regard to the appellant's escape and flight from West Virginia authorities while he was awaiting extradition to Georgia for this trial. Appellant contends that this was error because a proper foundation had not been laid to show that he fled because of the charges pending against him in the State of Georgia. "When facts are such that the jury, if permitted to *22 hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of them, in connection with the other facts in evidence, they are such that the jury ought to be permitted to hear them. [Cits.]" Johnson v. State, 148 Ga. App. 702, 703 (252 SE2d 205). In the present case, the trial judge charged, "You members of the Jury may consider whether or not you will draw an inference of guilt from flight or similar acts, if proven. Flight or similar acts, if any, is subject to explanation. You decide the weight to be given to it or whether to draw an inference of a consciousness of guilt or not. You decide if there was flight or similar acts, whether it was due to a sense of guilt or for other reasons. And if for other reasons, no inference hurtful to the defendant should be drawn." This charge is similar to the ones given by the trial court in Moon v. State, 154 Ga. App. 312 (5) (268 SE2d 366), and Anderson v. State, 153 Ga. App. 401 (265 SE2d 299), which were held to be sufficient instructions to the jury with regard to the proper perspective they should take concerning the defendant's flight. We find no error on this enumeration.
5. Appellant made a motion for a directed verdict of acquittal on the armed robbery charge, contending that the state had, at most, shown robbery by intimidation since there was no evidence to support the inference that he in fact used a real gun.[1] The trial judge denied that motion and the appellant claims that denial was error. We disagree. "It is only when the evidence demands a verdict of not guilty that it is error for the trial court to refuse a motion for a directed verdict of acquittal." Rolland v. State, 235 Ga. 808, 812 (221 SE2d 582). That statement applies to the case at bar. There would have to be a complete lack of evidence of the existence of a real gun for a directed verdict of acquittal to be in order. However, Mrs. Rhodes' testimony that the gun used by the appellant had a much longer barrel than did the toy gun found in his car was some evidence of the existence of a real gun. It was up to the jury to determine how much weight to give the victim's testimony. The denial of the appellant's motion for a directed verdict was correct.
6. As stated above, Mrs. Rhodes testified that the gun the appellant allegedly pointed at her had a much longer barrel than did the toy pistol that was found in the appellant's car when he was arrested. To accentuate this point, the district attorney obtained a *23 long-barreled pistol from the police department. This gun was in no way connected to the robbery in question or to the appellant. The district attorney showed the gun to Mrs. Rhodes and asked her if it looked similar to the one that the appellant had held on her. She answered affirmatively. The district attorney then tendered the long-barreled gun into evidence over the objection of appellant's counsel. The trial judge overruled the objection and allowed the gun to be admitted. Appellant contends that the trial judge erred in overruling his objection because the gun would tend to confuse the jury as to whether or not the actual weapon was a dangerous weapon. After close scrutiny of the record and extensive research, we agree with the appellant's contentions.
Georgia's case law is replete with holdings that articles which are similar to ones used in a crime but are not identical are nevertheless admissible. See, e.g., Duvall v. State, 238 Ga. 325 (232 SE2d 918); Jung v. State, 237 Ga. 73 (226 SE2d 599); Davis v. State, 230 Ga. 902 (199 SE2d 779); Kent v. State, 157 Ga. App. 209 (276 SE2d 881); Gunn v. State, 245 Ga. 359 (264 SE2d 862); Moore v. Illinois, 408 U.S. 786 (92 SC 2562, 33 LE2d 706). However, all of these cases are clearly distinguishable on their facts from the case at bar. In Duvall, supra, the "similar" gun which was admitted into evidence was found in the defendant's car. In Jung, supra, the articles admitted were found on the defendant at the time of his arrest. The Gunn case, supra, involved the substitution of a cue stick that had been used in a fight. However, there was no dispute as to the fact that a cue stick had actually been used by the defendant. In the case sub judice, there is conflicting evidence as to the actual existence of a real gun. Kent, supra, involved the admission of clothing. There, the shirt admitted was the one the defendant was wearing when he was arrested. In Davis, supra, the court allowed gloves, a shirt, and a knife to be admitted. The gloves and shirt were found on the defendant at the scene of the crime. The particular knife could not definitely be traced to the defendant but the uncontroverted fact remained that the defendant did use a knife. The same distinction is true in the U. S. Supreme Court decision in Moore v. Illinois, supra. There the trial judge allowed a .16-gauge shotgun found in the defendant's possession to be admitted when there was evidence that the crime was actually committed with a .12-gauge shotgun. But it was undisputed that a shotgun of some type was used.
In the case at bar, the prosecutor arbitrarily produced a weapon which he admitted had no direct connection whatsoever to the present trial. Some language in Jung v. State, proves enlightening: "Where there is evidence that the perpetrator of a robbery wore certain clothing and carried a pistol, similar items belonging to or *24 found in the possession of the defendant are properly admitted for the jury to consider. [Cits.] . . . [I]t appears without dispute that the crime was committed with a pistol, and it would make no material difference whether or not the pistol found on the defendant was the particular gun with which the crime was committed." (Emphasis supplied.) Id., p. 74. These passages reiterate the primary deviation of the case at bar from others that are similar. The pistol was not found at the scene of the crime or in the appellant's possession nor was it undisputed that such a gun ever existed.
Research has not produced a Georgia case affirming a conviction in a case in which the trial court admitted into evidence a weapon not in any way associated with the crime or the defendant. For instance, in Hill v. State, 211 Ga. 683 (88 SE2d 145), a murder case in which the victim was killed with a knife, the trial court admitted testimony concerning a knife purchased by the prosecution and used for identification purposes at trial, but correctly upheld defense counsel's objection to the admission of the knife itself into evidence. In the present case, the gun was admitted into evidence. The case that appears to be most analogous to the case at bar is Young v. Price, 442 P2d 67, a 1968 holding of the Supreme Court of Hawaii. That case involved an action by a pedestrian for injuries sustained in a fall on a sidewalk across which the defendants had stretched a hose. Defendants argued that they had placed a yellow cone and a red flag at the scene of the accident as a safety precaution. The plaintiff denied the existence of the cone and flag. The defendants entered into evidence replicas of the disputed yellow cone and red flag. The Supreme Court of Hawaii held this to be reversible error stating that where there is conflict in the evidence as to the existence of physical objects, the credibility of witness' testimony is for the jury to decide, and the introduction of replicas of disputed evidence is prejudicial. Young v. Price, supra. In the present case, the victim testified that the appellant used a long-barreled gun. No real gun was ever found but a toy gun was found in the appellant's car at the time of his arrest. This created a dispute as to the existence of the long-barreled gun. According to the theory enunciated in Young, supra, a replica of the disputed pistol should not have been admitted into evidence; the jury should have relied solely on the victim's testimony.
Young v. Price, supra, is a civil case. We believe that a criminal case requires even greater scrutiny by our courts to insure that the defendant's individual rights are not overrun. Therefore, we adopt the reasoning articulated in Young.
It is not our intention to undermine the efforts of our law enforcement officers or to tie a prosecutor's hands behind his back. We simply believe that the district attorney crossed the line of proper *25 evidence by causing the admission of the gun into evidence; its subsequent presence in the jury room was far too prejudicial to condone. Appellant is entitled to a new trial.
7. Appellant's final enumeration of error concerns the sentencing of him by a different judge than the trial judge. Since this situation is not likely to reoccur on retrial, a discussion of this issue is unnecessary.
Judgment reversed. Birdsong and Sognier, JJ., concur.
NOTES
[1] Since this case was tried, the Georgia General Assembly has amended Code Ann. § 26-1902 so as to once again include the language concerning the use of any "replica, article, or device having the appearance of an offensive weapon" as a qualification for armed robbery. However, this amendment did not become effective until April 9, 1981, so it therefore has no bearing on the case at bar. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204016/ | 688 N.W.2d 831 (2004)
PEOPLE
v.
WEST.
No. 126433.
Supreme Court of Michigan.
November 22, 2004.
SC: 126433, COA: 253834.
On order of the Court, the application for leave to appeal the May 5, 2004 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331925/ | 285 S.E.2d 792 (1982)
STATE of North Carolina
v.
James Ray JOHNSON.
No. 16.
Supreme Court of North Carolina.
January 12, 1982.
*794 Rufus L. Edmisten, Atty. Gen. by W. A. Raney, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.
Adam Stein, Appellate Defender, and Marc D. Towler, Asst. Appellate Defender, of Appellate Defender Project for North Carolina, Raleigh, for defendant-appellant.
HUSKINS, Justice:
Defendant first assigns as error the denial of his motion to suppress his statement without finding beyond a reasonable doubt that the State had sustained its burden of proving that defendant's statement was voluntarily given.
The United States Constitution forbids the admission in a criminal trial of a confession coerced from a defendant. Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961). In North Carolina, the legislature has statutorily specified the procedures for determining whether a defendant's statements are voluntarily made. When the prosecution seeks to use a defendant's statement in his criminal trial, the defendant may challenge the admissibility of this evidence by a motion to suppress. G.S. 15A-972. The statement must be suppressed if its exclusion is required by the United States Constitution or the North Carolina Constitution, i.e., if it was obtained by coercion. G.S. 15A-974. In determining *795 the admissibility of the statement, the trial court must follow the procedures outlined in G.S. 15A-977. These include conducting a hearing, making findings of fact and conclusions of law, and setting forth in the record the findings and conclusions. G.S. 15A-977(d), (f). The findings of fact must include findings on the issue of voluntariness. State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137 (1980). The State must affirmatively show that a defendant was fully informed of his rights and voluntarily waived them. State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976).
The quantum of proof required to establish the voluntariness of a statement is not specified in G.S. 15A-977 and has never been articulated by this Court. Defendant urges the adoption of a requirement that the State prove beyond a reasonable doubt that a defendant's statement was voluntarily given.
Defendant's argument was considered and rejected by the United States Supreme Court in Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972). The Court there held that the United States Constitution requires a showing of voluntariness by a preponderance of the evidence. The decision left the states free, however, to adopt a higher standard pursuant to their own laws.
Several states have adopted the reasonable doubt standard. See People v. Jimenez, 21 Cal. 3d 595, 147 Cal. Rptr. 172, 580 P.2d 672 (1978); Magley v. State, 263 Ind. 618, 335 N.E.2d 811 (1975); State v. Johnson, 327 So. 2d 388 (La.1976); State v. Tardiff, 374 A.2d 598 (Me.1977); Younger v. State, 301 So. 2d 300 (Miss.1974); State v. Phinney, 117 N.H. 145, 370 A.2d 1153 (1977); State v. Whittington, 142 N.J.Super. 45, 359 A.2d 881 (App.Div.1976); People v. Brown, 44 A.D.2d 769, 354 N.Y.S.2d 263 (1974); State v. Aschmeller, 87 S.D. 367, 209 N.W.2d 369 (1973); Valerio v. State, 494 S.W.2d 892 (Tex.Crim.App.1973); Blaszke v. State, 69 Wis. 2d 81, 230 N.W.2d 133 (1975). One jurisdiction has adopted an intermediate "clear and convincing evidence" test. State v. Bello, R.I., 417 A.2d 902 (1980). The majority of jurisdictions considering the question have adhered to the preponderance test set out in Lego. See Thomas v. State, 393 So. 2d 504 (Ala.Cr.App.1981); McMahan v. State, 617 P.2d 494 (Alaska 1980); State v. Osbond, 128 Ariz. 76, 623 P.2d 1232 (1981); Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980); People v. Fordyce, Colo., 612 P.2d 1131 (1980); State v. Hawthorne, 176 Conn. 367, 407 A.2d 1001 (1978); Mealey v. State, 347 A.2d 651 (Del. Super.1975); Finley v. State, 378 So. 2d 842 (Fla.Dist.Ct.App.1979); Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980); People v. Cozzi, 93 Ill.App.3d 94, 48 Ill. Dec. 670, 416 N.E.2d 1192 (1981); State v. Jacoby, 260 N.W.2d 828 (Iowa 1977); State v. Stephenson, 217 Kan. 169, 535 P.2d 940 (1975); Tabor v. Commonwealth, 613 S.W.2d 133 (Ky.1981); State v. Kidd, 281 Md. 32, 375 A.2d 1105, cert. denied, 434 U.S. 1002, 98 S. Ct. 646, 54 L. Ed. 2d 498 (1977); State v. Young, 610 S.W.2d 8 (Mo.App. 1980); State v. Davison, Mont., 614 P.2d 489 (1980); Commonwealth v. Farrington, 270 Pa. Super. 400, 411 A.2d 780 (1979); State v. Smith, 268 S.C. 349, 234 S.E.2d 19 (1977); Griffin v. State, 604 S.W.2d 40 (Tenn.1980); State v. Breznick, 134 Vt. 261, 356 A.2d 540 (1976); Griggs v. Commonwealth, 220 Va. 46, 255 S.E.2d 475 (1979); State v. Braun, 82 Wash.2d 157, 509 P.2d 742 (1973); State v. Milam, W.Va., 260 S.E.2d 295 (1979); Raigosa v. State, 562 P.2d 1009 (Wyo.1977).
For the reasons enunciated in Lego, we adopt the preponderance test as the appropriate standard to be applied by trial courts in North Carolina. In Lego, the Court first noted that the due process requirement prohibiting admission of coerced confessions does not depend upon the truth or falsity of the confessions. 404 U.S. at 483-84, 92 S.Ct. at 624, 30 L.Ed.2d at 624. "The use of coerced confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles. Rogers v. Richmond, 365 U.S. 534, 540-41, 81 S. Ct. 735, 739, 5 L. Ed. 2d 760, 766 (1961)." Id. 404 U.S. at *796 485, 92 S.Ct. at 624-25, 30 L.Ed.2d at 625. The purpose that a voluntariness hearing is designed to serve is to prevent the use of unconstitutional methods in obtaining confessions and "has nothing whatever to do with improving the reliability of jury verdicts"; therefore the Court reasoned that judging the admissibility of a confession by a preponderance of the evidence does not undermine the holding of In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Id. 404 U.S. at 486, 92 S.Ct. at 625, 30 L.Ed.2d at 626. The Court ruled in Winship that an accused may be convicted only upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged. 397 U.S. at 364, 90 S.Ct. at 1073, 25 L.Ed.2d at 375. The petitioner in Lego did not contend that either his confession or its voluntariness was an element of the crime charged. Therefore, his rights under Winship were not violated.
No provision in the North Carolina Constitution expressly or implicitly requires this Court to adopt a higher quantum of proof than that required by the United States Supreme Court in its interpretation of the United States Constitution. Defendant has failed to show that the rights of an accused are not adequately protected by the United States Constitution. We therefore decline to interpret the North Carolina Constitution to require proof of voluntariness beyond a reasonable doubt. Cf. State v. Felmet, 302 N.C. 173, 273 S.E.2d 708 (1981) (refusing to interpret Article I, section 14 of the North Carolina Constitution to protect conduct not protected by the First Amendment to the United States Constitution).
The recognition that the burden of proof required under G.S. 15A-977 must comport with the Lego mandate of proof by a preponderance of the evidence does not affect our decision in State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137 (1980), or in State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976). Those cases correctly hold that facts found by the trial court in a G.S. 15A-977 hearing are conclusive if supported by competent evidence. 298 N.C. at 339, 259 S.E.2d at 535; 289 N.C. at 530, 223 S.E.2d at 376. The standard to be applied by appellate courts in reviewing the findings of a trial court is not affected by the standard of proof for the trial court to use in making the findings.
Defendant's second assignment of error stems from the denial of his motion to replace his appointed attorney. In a hearing the morning of defendant's trial, he requested the court to discharge his appointed counsel, Mr. Jay Hockenbury. Defendant was allowed to address the court and stated that he was dissatisfied with Mr. Hockenbury's representation because "He has entered `Not Guilty' and I want it `Not Guilty by Temporary Insanity.'" Defendant listed as further reasons for dissatisfaction:
Well, first and foremost would be, you know, is the fact of this being an unprovoked attack on an innocent victim, and second it was, you know, a thing about the judge involved at the time this incident occurred, and what effect that would have on this crime being committed, and you know, third, well it'swell, I have a list but I didn't bring it with me, you know, things that I wanted him to do, and stuff, but I thought it was going to be handled, you know. Other than this I wasn't prepared to come up here and remember it word for word. However, basically, you know, those are the important things.
Mr. Hockenbury stated that he began practicing law in 1972 and had been trying capital cases since 1973. He had initiated and completed discovery proceedings on behalf of the defendant and had carefully explained all aspects of the case to the defendant. Defendant had not agreed with the attorney's recommendations. Mr. Hockenbury acknowledged he had failed to investigate defendant's contention that he possibly received a dose of nuclear radiation at the Southport Carolina Power and Light Plant which made him commit the rape.
The court entered findings of fact and concluded that Mr. Hockenbury was capable of representing defendant and had handled *797 his case with due diligence. The court thereupon denied defendant's motion.
The case of State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977), is dispositive of this assignment. In Gray, the defendant moved to dismiss his attorney because he had urged Gray to plead guilty to one of the crimes with which he was charged. Gray also complained that his attorney had "misled" him and "put distrust" in his witnesses' hearts. Defendant's final objection was that his appointed counsel was a former assistant district attorney.
This Court held that defendant's complaints were insufficient to require dismissal of his attorney:
It is clear that defendant had no reasonable objection to his attorney's conduct or preparation of his case. His complaints are general and vague, and the emphasis of his objections shifted during the hearing. His counsel, as appears from the record, was well qualified and did, in fact, represent defendant in an exemplary fashion. Defendant's assertion that he wished to employ his own counsel, made as it was, on the day trial was to begin and without the appearance or even the name of a single attorney who might be privately employed to represent him, was no ground for the dismissal of his court-appointed counsel.
292 N.C. at 281, 233 S.E.2d at 913. The similarities between Gray and this case are compelling. Both involved rather vague, general complaints. Although each case included a disagreement over the appropriate plea, in neither situation was the dispute so severe as to prejudice the presentation of a defense. In Gray, defendant in fact pleaded not guilty to all crimes, although his attorney encouraged him to plead guilty to first degree burglary. In this case, defendant pleaded not guilty, although he argued to his attorney that he should plead not guilty by temporary insanity. Defendant never attempted to change his plea, however. While the failure of counsel to enter the plea desired by his client may be a more fundamental conflict than a mere disagreement over trial tactics, defendant has failed to demonstrate that he in fact seriously desired a plea different from the plea entered.
The true nature of defendant's dissatisfaction with his counsel is best evidenced by his request that his appointed attorney investigate whether defendant had received a dose of nuclear radiation which made him commit the rape. No counsel, appointed or privately employed, is required to pursue every absurd suggestion advanced by his client.
Defendant's unreasonable demands indicate there is little reason to believe he would have been satisfied by any appointed lawyer. "The constitutional right of an indigent defendant in a criminal action to have the effective assistance of competent counsel ... does not include the right to insist that competent counsel ... be removed and replaced with other counsel merely because the defendant has become dissatisfied with his services." State v. Robinson, 290 N.C. 56, 65-66, 224 S.E.2d 174, 179 (1976).
Defendant's third assignment of error is that there was insufficient evidence that a dangerous or deadly weapon was employed or displayed. The evidence shows defendant jabbed the sharp end of a ballpoint pen into the neck of the victim. A similar pen was introduced into evidence. From the victim's testimony that she submitted to defendant because she was afraid he would injure her neck with the pen, and from its opportunity to examine a similar pen and consider the manner of its use, the jury could legitimately find that the pen was a dangerous or deadly weapon. The question was properly submitted to the jury.
Defendant's final assignment of error is that the trial court's instructions implied that the jury was required to return a verdict. Defendant argues that the trial court must inform the jury that a mistrial will be declared if the jury cannot reach a unanimous decision. Such is not the law. The assignment is meritless.
*798 Our review of the record impels the conclusion that defendant has had a fair trial free from prejudicial error. The verdict and judgment must therefore be upheld.
NO ERROR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/829234/ | Order Michigan Supreme Court
Lansing, Michigan
February 7, 2011 Robert P. Young, Jr.,
Chief Justice
141641 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 141641
COA: 297072
Oakland CC: 2005-205885-FC
DARQUESE LAANTHONY LEWIS,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the June 30, 2010 order
of the Court of Appeals is considered, and it is DENIED, because the defendant has
failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 7, 2011 _________________________________________
s0131 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1914666/ | 677 N.W.2d 357 (2004)
260 Mich. App. 360
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Frank GATSKI, Defendant-Appellee.
Docket No. 243581.
Court of Appeals of Michigan.
Submitted January 8, 2004, at Grand Rapids.
Decided January 20, 2004, at 9:00 a.m.
Released for Publication April 2, 2004.
*358 Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Gail Benda, Prosecuting Attorney, and Kevin L. Tyrrell, Assistant Prosecutor, for the people.
Patrick M. Duff, Portland, for the defendant on appeal.
Before: MARKEY, P.J., and MURPHY and TALBOT, JJ.
TALBOT, J.
We granted the prosecution leave to appeal the Ionia Circuit Court order that dismissed the charge of recreational trespass, MCL 324.73102(1). The question before us is whether § 73102(3) of the recreational trespass statute allows recreational fishing on the property of a privately owned dam when the property is posted in a conspicuous manner against trespassing. We conclude that it does not. Accordingly, we reverse the order of the circuit court and remand the case for proceedings consistent with this opinion.
I. Facts and Procedural History
The facts are not disputed. Defendant was fishing in Grand River near the Webber Dam in Lyons County. The dam is owned and operated by Consumers Energy, and the dam grating was surrounded by "no trespassing" signs strung on a guide cable across the river. While fishing, defendant hooked a large fish, but the fish swam into a gap between the grating and the coffer of the dam. In an attempt to guide the fish out of the gap, defendant waded through the river, passed the "no trespassing" signs at the dam's grating, and stepped onto the grating that was beneath the river water. Defendant believed the "no trespassing" signs referred only to the dam's powerhouse and transformers. A conservation officer who spotted defendant standing on the grating testified that defendant appeared to be struggling with a tangled fish line. The officer motioned defendant to approach *359 the bank of the river. Defendant cut the fish line and approached the officer. Defendant was then cited for recreational trespass, MCL 324.73102(1).
Defendant moved to dismiss the charge, arguing that he had a right to fish in that area of the river under an exception in the recreational trespass statute, MCL 324.73102(3). Defendant also asserted that Consumers Energy had no right to restrict his riparian right to the stream water or to regulate fishing at the dam. The prosecutor, on the other hand, argued that defendant misinterpreted the language of § 73102(3). The prosecutor asserted that subsection 3 did not allow defendant to fish on the grating of the dam. The prosecutor also argued that Consumers Energy, being authorized by the state to construct and operate the dam, was allowed as a property owner to restrict persons from entering onto the dam. The district court agreed with the prosecutor and denied defendant's motion to dismiss the charge on the grounds that the recreational trespass statute did not grant defendant unfettered rights to enter onto the dam and that Consumers Energy had the right to bar trespassers from its property. Defendant appealed to the Ionia Circuit Court. The circuit court dismissed the charge against defendant on the grounds that § 73102(3) allowed defendant to enter upon the dam's grating and that Consumers Energy did not have the right to regulate fishing.
II. Analysis
A. Recreational Trespass
The prosecutor argues that the circuit court improperly ruled that the recreational trespass statute afforded defendant an exception. The recreational trespass statute, MCL 324.73102, prohibits recreational activity on the property of another where the property is posted in a conspicuous manner against entry, as follows:
(1) Except as provided in subsection (4) [allowing entry by an unarmed person to retrieve a hunting dog], a person shall not enter or remain upon the property of another person, other than farm property or a wooded area connected to farm property, to engage in any recreational activity or trapping on that property without the consent of the owner or his or her lessee or agent, if either of the following circumstances exists:
* * *
(b) The property is posted in a conspicuous manner against entry.... [MCL 324.73102(1)(b).]
It is undisputed that defendant was engaged in a recreational activity in an area of the river near the dam, that the dam is owned by Consumers Energy, that Consumers Energy placed conspicuous "no trespassing" signs against entry onto the dam, and that defendant disregarded the signs and entered onto the grating of the dam. Defendant argues that he did not commit recreational trespass because subsection 3 of the statute afforded him with an exception, as follows:
On fenced or posted property or farm property, a fisherman wading or floating a navigable public stream may, without written or oral consent, enter upon property within the clearly defined banks of the stream or, without damaging farm products, walk a route as closely proximate to the clearly defined bank as possible when necessary to avoid a natural or artificial hazard or obstruction, including, but not limited to, a dam, deep hole, or a fence or other exercise of ownership by the riparian owner. [MCL 324.73102(3).]
Defendant urges this Court to read two separate exceptions into the above provision that are separated by the word "or" *360 that follows the word "stream." According to defendant's reading of the statute, (1) a fisherman wading or floating in a navigable stream may simply enter upon the posted property of a dam without permission provided that the dam is within the clearly defined banks of the stream or (2) a fisherman wading or floating in a navigable stream may walk a route near the defined banks only when necessary to avoid a natural or artificial hazard or obstruction such as a dam. In other words, defendant argues that the requirement to avoid a natural or artificial hazard or obstruction does not relate to the first part of the provision and that a fisherman may enter onto the property of a dam at any time if that portion of the property is located in the river between identifiable banks. Meanwhile, the prosecutor contends that the above provision should be read to allow a fisherman to enter upon the posted property of a dam only when necessary to avoid a natural or artificial hazard or obstruction.
This issue presents a question of statutory interpretation. Statutory interpretation is a question of law that is reviewed de novo. Oakland Co. Rd. Comm'rs v. Michigan Property & Cas. Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Gladych v. New Family Homes, Inc., 468 Mich. 594, 597, 664 N.W.2d 705 (2003). Initially, we review the language of the statute itself. If the statute is unambiguous on its face, the Legislature is presumed to have intended the meaning plainly expressed and further judicial interpretation is not permissible. Colucci v. McMillin, 256 Mich.App. 88, 94, 662 N.W.2d 87 (2003). "Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent." Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). "An ambiguity can be found only where the language of a statute as used in its particular context has more than one common and accepted meaning." Colucci, supra at 94, 662 N.W.2d 87.
The focal point in the language of § 73102(3) is the use of the disjunctive "or" after the word "stream" in the first part of the provision. It is well-established that the word "or" is often misused in statutes and it gives rise to an ambiguity in the statute because it can be read as meaning either "and" or "or." People v. Humphreys, 221 Mich.App. 443, 451-452, 561 N.W.2d 868 (1997). Generally, "or" is a disjunctive term, but the popular use of the word is frequently inaccurate and this misuse has infected statutory enactments. Their literal meanings should be followed if they do not render the statute dubious, but one will be read in place of the other if necessary to put the meaning in proper context. Id.
We conclude that subsection 3 is not well drafted, and the particular use of the word "or" and placement of commas in the text could lead reasonable minds to differ with respect to whether the provision creates the different types of exceptions that the parties assert. This is evidenced by the rulings of the district and circuit courts that arrived at opposite conclusions regarding what the statute actually means.
Therefore, this Court may go beyond the words of the statute in order to ascertain legislative intent. Sun Valley Foods Co, supra. In such a case, the rules of statutory construction require that the intent of the Legislature, once ascertained, "must prevail regardless of any conflicting rule of grammar or statutory construction." Green Oak Twp. v. Munzel, 255 Mich.App. 235, 240, 661 N.W.2d 243 (2003). *361 We must consider the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the statute's purpose. People v. Lawrence, 246 Mich.App. 260, 265, 632 N.W.2d 156 (2001). In construing a statute, "the court should presume that every word has some meaning and should avoid any construction which would render any part of a statute surplusage or nugatory." People v. Borchard-Ruhland, 460 Mich. 278, 285, 597 N.W.2d 1 (1999). Provisions must "be read in the context of the entire statute so as to produce an harmonious whole." People v. Williams, 236 Mich.App. 610, 613, 601 N.W.2d 138 (1999). Though a court may not abrogate the plain language of a statute in order to avoid absurd results, see People v. McIntire, 461 Mich. 147, 155-156, 599 N.W.2d 102 (1999), it is appropriate for a court to avoid absurd results when attempting to determine the Legislature's intent regarding an ambiguous statute. People v. Wilson, 257 Mich.App. 337, 346, 668 N.W.2d 371 (2003).
MCL 324.73102 of the Natural Resources and Environmental Protection Act, MCL 324.101 et seq., provides for the control of recreational trespass. Subsection 1 provides the general rule that an individual may not enter upon property for recreational activities without the consent of the owner when the property conspicuously prohibits trespassing. Subsections 2, 4, and 5 provide the specific exceptions to the rule. Subsection 2 prohibits a person from entering upon farm property for recreational activity without the consent of the owner regardless of whether the property is fenced, enclosed, or posted. Subsection 4 allows a person to enter upon the property of another to retrieve a hunting dog provided that the person is unarmed and provided that the property owner had not previously prohibited the person from entering the property. Subsection 5 concerns the nature of the consent that a property owner may give to a person entering upon the property and the effect of the lack of consent. From subsections 2 and 4, we conclude that the Legislature intended a person's entry upon the property of another to be conditioned. There is nothing in the above provisions that allows a person engaged in recreational activity to simply enter and remain upon the property of another to continue the recreational activity without the owner's consent.
The subsection at issue here, § 73102(3), is no different. We cannot read into its language anything that would grant a fisherman permission to unconditionally enter and remain on the property of another for recreational activity. Defendant's proposed construction would expand this subsection to absurdly create an unlimited right to enter property located within the banks of a river for any reason. Such a proposed construction would not accurately represent the legislative intent behind the statute and would render the latter portion of the subsection nugatory. Thus, we conclude that subsection 3 provides an exception to the general trespass rule to allow a fisherman engaged in recreational activity to enter upon posted property only to avoid a natural or artificial hazard or an obstruction in the water.
Therefore, unless defendant can prove that it was necessary for him to enter onto the grating to avoid a natural or artificial hazard or obstruction, he would not be excused from otherwise violating subsection 1 of MCL 324.73102.
B. Federal Preemption
The prosecutor next argues that the circuit court erred in holding that Consumers Energy could not restrict the riparian rights of a person from fishing at the dam. Specifically, the prosecutor maintains that the circuit court erred in *362 holding that article 18 of the Federal Energy Regulatory Commission terms and conditions of the license was inapplicable in this case.
This issue presents a question of law that we review de novo on appeal. People v. Webb, 458 Mich. 265, 274-275, 580 N.W.2d 884 (1998). "We review de novo issues of federal constitutional law." J & J Const. Co. v. Bricklayers & Allied Craftsmen, Local 1, 468 Mich. 722, 729, 664 N.W.2d 728 (2003).
In this case, defendant argued that Consumers Energy, as a riparian owner of the stream waters, improperly restricted his right to fish. The prosecutor presented evidence indicating that Webber Dam was constructed pursuant to a federal license issued by the Federal Energy Regulatory Commission, which regulates interstate commerce on navigable waters. While the district court agreed with the prosecution's argument that federal licensing preempts state control over public navigable waters, the circuit court held that the right to build a dam does not include the right to regulate fishing in the river.
The record indicates that defendant did not dispute the fact that Consumers Energy was allowed to construct the dam. It is also undisputed that the Grand River was a public navigable river.[1] Because the Grand River is a navigable river, it is the public property of the nation and subject to all requisite legislation by Congress. Peterman v. Dep't of Natural Resources, 446 Mich. 177, 196, 521 N.W.2d 499 (1994). As our Supreme Court held, our state's power of navigation "`is limited by the superior power of the general Government to secure the uninterrupted navigation of all navigable streams within the limits of the United States.'" Id., quoting McMorran Milling Co. v. C H Little Co., 201 Mich. 301, 308, 167 N.W. 990 (1918). Congress has delegated to the Federal Energy Regulatory Commission (FERC) the authority to license the construction and operations of dams. 16 U.S.C. 808. Article 18 of the terms and conditions for obtaining a FERC license to construct a project on the navigable waters of the United States provides:
So far as is consistent with proper operation of the project, the Licensee shall allow the public free access, to a reasonable extent, to project waters and adjacent project lands owned by the Licensee for the purpose of full public utilization of such lands and waters for navigation and for outdoor recreational purposes, including fishing and hunting; Provided, That the Licensee may reserve from public access such portions of the project waters, adjacent lands, and project facilities as may be necessary for the protection of life, health, and property.
Although the circuit court failed to address the safety issues as presented in article 18, defendant never disputed the prosecutor's assertion below that Consumers Energy placed the "no trespassing" signs to restrict public access to the area directly in front of the water release gates of the dam, which gates pose a significant risk to safety and life if the gates were opened while a person was within that area. Thus, we conclude that the circuit court should have recognized the preemptive nature of federal authority in this matter.
*363 The order of the Ionia Circuit Court is reversed, and the case is remanded. We do not retain jurisdiction.
NOTES
[1] On appeal, defendant attempts to argue that the Grand River is not a public navigable river. We disagree. Defendant does not raise a cross-appeal to dispute the circuit court's acceptance of defendant's express argument below that the Grand River is a public navigable river. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262895/ | 84 Cal.Rptr.2d 257 (1999)
71 Cal.App.4th 1149
Laszlo LOGACZ et al., Plaintiffs and Appellants,
v.
Raymond LIMANSKY, Defendant and Respondent.
No. B099108.
Court of Appeal, Second District, Division Three.
April 1, 1999.
As Modified on Denial of Rehearing April 30, 1999.
Review Denied June 16, 1999.
*259 Tanke & Willemsen, Tony J. Tanke, Redwood City, Karen Bautista Hobin; Law Offices of Manuel Hidalgo, Manuel Hidalgo and Rolando Hidalgo, for Plaintiffs and Appellants.
Rushfeldt, Shelley & Drake, Randall L. Shelley, Christine T. Hoeffner and Dawn Cushman, Sherman Oaks, for Defendant and Respondent Raymond Limansky.
CROSKEY, Acting P.J..
This is a medical malpractice case in which Cynthia Logacz, the wife and mother, respectively, of the plaintiffs, Laszlo Logacz and Heath B. Dunnam, died allegedly as the result of the professional negligence of the defendant Raymond Limansky, M.D. Cynthia died on June 4, 1992 of pulmonary emboli, approximately two weeks after a hysterectomy performed by Dr. Limansky. Plaintiffs filed this action against Dr. Limansky and several other defendants.[1] Following a trial during which the trial court refused to give a jury instruction on concurrent causation (BAJI No. 3.77), the jury found that while Dr. Limansky was indeed negligent in his care of Cynthia, such negligence was not a cause of her death. Plaintiffs appeal and assert as the sole claimed error, the trial courts rerusai to give the aforesaid requested instruction.
Because we conclude that, in this case, in which causation was the most critical contested issue and in which there was substantial evidence of multiple causes of Cynthia's death, the trial court improperly instructed the jury with respect to concurrent causation and because such error was clearly prejudicial, we reverse and remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND[2]
Cynthia died in the emergency room of Brea Community Hospital on June 4, 1992, of pulmonary emboli. A summary review of the medical events which preceded her death is appropriate.
In January of 1992, Cynthia was experiencing vaginal bleeding. She was referred to and sought treatment from Dr. Limansky, a gynecologist. She was obese (she weighed over 300 pounds) and suffered from high blood pressure and blood in her stools. She took birth control pills, was short of breath, tired easily, and led a sedentary life during the time she was treated by Dr. Limansky.
Dr. Limansky performed a dilation and curettage (D & C) on Cynthia in an attempt to stop the bleeding on January 30, 1992. When that did not stop the vaginal bleeding, Dr. Limansky scheduled her for a hysterectomy. That operation was performed on May 18, 1992. She remained in the hospital for four days before being discharged to her home on May 22, 1992. During her recuperation in the hospital, on May 20, 1992 (two days after her hysterectomy surgery), Cynthia suffered a dizzy or fainting spell and fell. The nurses on duty at the time called Dr. Limansky to report the incident. He ordered *260 an immediate electrocardiogram (EKG). Although the E.K.G. test results were abnormal[3] and suggested a possible obstruction of her blood supply, Dr. Limansky failed to direct a cardiac workup for Cynthia prior to her release from the hospital
On Saturday, May 30, 1992, at about 8 p.m., while convalescing at home, she-suffered another dizzy spell and had to be taken by paramedics to the emergency room of the Brea Community Hospital where she was admitted and was described as having fainted (a syncopal episode). There, she was treated by a Dr. Maddex. An examination of Cynthia revealed that she had an elevated temperature of approximately 100 degrees. Dr. Maddex ordered an EKG which again showed an abnormal result, again suggesting ischemia, a blockage of circulation, and tachycardia or rapid heart rate. Dr. Maddex Cynthia's records from Queen of the Valley Hospital (where the hysterectomy had been performed). He then called Dr. Limansky at approximately 12:31 a.m. on Sunday, May 31, to confer about Cynthia's diagnosis and treatment. Despite the abnormal test results, Dr. Limansky determined that she could be discharged, indicating that he could see her on the subsequent Monday if there was a problem. She
was accordingly released from Brea Community Hospital shortly at 12:40 a.m. on Sunday, May 31, 1992.
Cynthia was seen by Dr. Limansky on June 2, 1992.[4] She apparently had no complaints at that time and he noted in his records: "Skin healing well. Will see here in six weeks." He did not request or review the records from her May 30 visit to the emergency room of Brea Community Hospital.
On the afternoon of June 4, 1992, Cynthia experienced chest pain. She looked pale, appeared to be staring off into space, was having trouble breathing and simply did not look well. Her son, Heath, did not remember his mother ever complaining about not feeling well until the day she passed away. Cynthia's husband instructed Heath to call 911. When the paramedics first arrived, Cynthia refused to go to the hospital and sent the paramedics away.
However, shortly thereafter, a second call was made to the paramedics, and Cynthia finally went to the emergency room, arriving at 4:54 p.m. on June 4, 1992. She comerature plained of right-sided chest pain and mid-Maddex abdominal pain. She also complained of shortness of breath. She had a pulse rate of 142, respiration rate of 40, and blood pressure of 157/50. The ER doctors suspected pulmonary emboli and considered using the drug heparin. However, they held their order for heparin because they were so consky cerned about the risk of internal bleeding. Cynthia went into cardiac arrest at 5:33 p.m., just over 35 minutes after her arrival at the hospital. Despite efforts to revive her, she died on June 4, 199, at 6:10 p.m. A subsequent autopsy determined that the cause of death was acute pulmonary thromboembolism, bilateral.[5]
Plaintiffs, as the surviving husband and son of decedent, filed an action for wrongful death. During the course of the six-week trial, complicated expert and percipient medical testimony was presented by both plaintiffs and defendant on nearly every phase of decedent's medical care, through and including forensics.
*261 As experts for both parties experts testified, obesity and sedentary living are factors which increase the risk that a recovering surgical patient will suffer from circulatory problems and possible blood clotting. The experts further agreed that: (1) signs and symptoms of cardiac blockages include fainting, shortness of breath, rapid heartbeat and dizziness; and (2) that an OB-GYN should recognize these signs and symptoms, and their potential effects. Plaintiffs' expert, a Dr. Forbes, testified further that the standard of care for OB-GYN practitioners in 1992 was to prescribe the wearing of pressure or compression stockings to obese patients recuperating from surgery in order to prevent clotting and also to consult with an internist or cardiologist following an abnormal electrocardiogram (E.K.G.). Although decedent had abnormal test results after her surgery and prior to her death which suggested possible circulatory blockages, neither Dr. Limansky nor the emergency room doctor, Dr. Maddex, prescribed any medication to prevent clotting or did follow-up testing to further diagnose the abnormal E.K.G. results.
The medical testimony presented during trial by the several attending physicians and experts was extensive and conflicting on the issue of legal cause. Accordingly, plaintiffs requested that BAJI Instruction No. 3.77 on concurrin causes be given to the jury. However, the trial judge flatly refused,[6] stating that it was not "properly tailored" for a wrongful death case.[7] The jury subsequently returned a special verdict, finding defendant negligent in his care and treatment of decedent. However, the jury also found, by a vote of 9-3, that defendant's negligence did not cause Cynthia's death. As a result, the court entered judgment in favor of Dr. Limansky. Plaintiffs filed this timely appeal.
ISSUE PRESENTED
This case presents two simple issues for resolution. First, did the trial court err when it refused to give BAJI 3.77 as requested by plaintiff? Second, if so, was such error prejudicial? We answer both of these questions in the affirmative.
DISCUSSION
1. Standard of Review
The sole error claimed in this case is the trial court's failure to give a requested jury instruction on concurrent causation (BAJI 3.77).[8] With respect to our review of issues relating to such an issue, as well as the question of their prejudicial impact, we do not view the evidence in the light most *262 favorable to the successful defendant and draw all inferences in favor of the judgment. Rather, we must assume that the jury, had it been given proper instructions, might have drawn different inferences more favorable to the losing plaintiff and rendered a verdict in plaintiffs favor on those issues as to which it was misdirected. (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 674, 117 Cal.Rptr. 1, 527 P.2d 353; Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal. App.4th 294, 298, 45 Cal.Rptr.2d 10; Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 322, 5 Cal.Rptr.2d 594; see also fn. 2, ante.)
That is not to say, however, that a failure properly to instruct a jury is necessarily or inherently prejudicial. There is no automatic reversal merely because a trial court has failed to properly instruct a jury. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580, 34 Cal.Rptr.2d 607, 882 P.2d 298.) "A judgment may not be reversed for instructional error in a civil case `unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.)" (Ibid.)
Instructional error in a civil case is prejudicial "where it seems probable" that the error "prejudicially affected the verdict." (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875, 148 Cal.Rptr. 355, 582 P.2d 946). It is not enough that there may have been a "mere possibility" of prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836-837, 299 P.2d 243.) As the Soule court put it, the determination of prejudice depends heavily on "the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury. [¶] ... Actual prejudice must be assessed in the context of the individual trial record. For this purpose, the multifactor test set forth in such cases as LeMons v. Regents of University of California, supra, 21 Cal.3d at pp. 875-876, 148 Cal.Rptr. 355, 582 P.2d 946 and Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069, 232 Cal.Rptr. 528, 728 P.2d 1163 is as pertinent in cases of instructional omission as in cases
where instructions were erroneously given. Thus, when deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 580-581, 34 Cal. Rptr.2d 607, 882 P.2d 298.)
In our consideration of the instructional error involved here, we will apply these principles.
2. The Trial Court Erroneously Refused to Give Plaintiffs' Requested Instruction on Concurrent Causation (BAJI 3.77)
Without doubt, one of the critical issues to be resolved by the jury was causation. Just what did cause Cynthia's death? Dr. Limansky argued that (1) Cynthia's own family may have caused or contributed to it, (2) her physical condition (e.g., her sedentary lifestyle, and her obesity and high blood pressure and heart rate) may have caused it, (3) her failure to follow her doctors' instructions (including those of Dr. Limansky) regarding her post surgical and post hospital activities may have caused it, and (4) her failure to seek timely emergency treatment after onset of chest pain and breathing difficulties may have caused it. For purposes of this appeal, plaintiffs concede that these factors may have contributed to Cynthia's death, but that the negligence of Dr. Limansky, which the jury found, was also a cause. Thus, (the principle of concurrent causation was and is a critical part of plaintiffs' case.)
"Parties have the `right to have the jury instructed as to the law applicable to all their theories of the case which were supported by the pleadings and the evidence, whether or not that evidence was considered persuasive by the trial court.' [Citation.] A reviewing court must review the evidence most favorable to the contention that the requested instruction is applicable since the parties are entitled to an instruction thereon if the evidence so viewed could establish the elements of the theory presented. [Citation.]' [Citation.]" (Maxwell v. Powers (1994) 22 Cal. *263 App.4th 1596,1607, 28 Cal.Rptr.2d 62.) Consistent with these legal principles, plaintiffs requested that the trial court give BAJI 3.77[9] which would have made it clear to the jury that there can be more than one cause of an injury (or death).
This instruction adequately and correctly states the law governing concurring causes. (Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 631, 128 Cal.Rptr. 807 [disapproved on other grounds in Soule v. General Motors Corp., supra, 8 Cal.4th 548, 34 Cal.Rptr.2d 607, 882 P.2d 298].) The Use Note to BAJI No. 3.77 states that "[Except as noted, this instruction should be given immediately following BAJI 3.76 whenever the issue of negligence of two or more defendants or contributory negligence is submitted to the jury." (BAJI No. 3.77, 8th ed., Use Note; italics added.)
One purpose of BAJI No. 3.77 is to explain to the jury that plaintiff need not prove that the defendant's negligence was the sole cause of plaintiffs injury in order to recover. Rather, it is sufficient that defendant's negligence is a legal cause of injury, even though it operated in combination with other causes, whether tortious or nontortious. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1321, 37 Cal.Rptr.2d 541; Harris v. City of Compton (1985) 172 Cal.App.3d 1, 10, 217 Cal.Rptr. 884, citing American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 586, 146 Cal.Rptr. 182, 578 P.2d 899.)
The fundamental importance of BAJI No. 3.77 in any case in which concurrent causes may be present has been repeatedly emphasized. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 958, 977, 982, 67 Cal.Rptr.2d 16, 941 P.2d 1203 ["Instruction on the limits of the plaintiffs' burden of proof of causation, together with the standardized instructions defining cause-in-fact causation under the substantial factor test [BAJI No. 3.76] and the doctrine of concurrent proximate legal causation [BAJI No. 3.77] will adequately apprise the jury of the elements required to establish causation."]; Milwaukee Electric Tool Corp. v. Superior Court (1993) 15 Cal.App.4th 547, 565, 19 Cal. Rptr.2d 24 ["In apportioning fault, there may be more than one legal cause, and a jury should be instructed accordingly . ... see BAJI No. 3.76 and 3.77, regarding the substantial factor test for causation and concurring causes ..." (Italics added).]; Doupnik v. General Motors Corp. (1990) 225 Cal. App.3d 849, 865-867, 275 Cal.Rptr. 715 ["The concurrent cause instruction does not distinguish between active and passive legal causes."]; Espinosa v. Little Co. of Mary Hospital, supra, 31 Cal.App.4th at pp. 1317 1318, 1321-1322, 37 Cal.Rptr.2d 541 ["[w]here a defendant's negligence is a concurring cause of an injury, the law regards it as a legal cause of the injury, regardless of the extent to which it contributes to the injury."]; Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 347, 160 Cal.Rptr. 246 ["[Concurrent causation] aptly describes the conduct of two or more health providers working in common cause to care for a patient in a hospital setting. Since the trial judge did instruct on `concurrent' causes, we find that the instructions given were adequate." (Italics added.) ].)
This case presents the same situation discussed in Espinosa, supra, at pp. 1317-1322, 37 Cal.Rptr.2d 541, and Hughey v. Candoli (1958) 159 Cal.App.2d 231, 240, 323 P.2d 779. The jury found Dr. Limansky had been negligent. At issue was whether his negligence "caused" Cynthia's death. Dr. Limansky presented expert evidence that Cynthia's obesity and failure to follow medical instructions and seek timely treatment may have caused her death. Just as in Hughey v. Candoli supra, even if Dr. Limansky established as a matter of law that any one *264 or all of these factors was a cause of Cynthia's death, his negligence could also have been a cause of her death acting in combination with them. Multiple or concurring causes of Cynthia's death do not preclude recovery by plaintiffs. However, the court failed to instruct the jury on concurrent causes. The jury was never specifically told that a defendant's negligence, even in the presence of the negligence of others, can also be found to be a legal cause. Plaintiffs were entitled to such an instruction.
Dr. Limansky argues that the trial judge was justified in refusing the requested instruction since it referred to an "injury" instead of a "death " and that the jury would have been confused. We disagree. This exact circumstance arose in Fish v. Los Angeles Dodgers Baseball Club, supra, 56 Cal. App.3d 620, 128 Cal.Rptr. 807, disapproved on other grounds by Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 575-581, 34 Cal.Rptr.2d 607, 882 P.2d 298. In Fish, the court disposed of the same argument made here by Dr. Limansky. "Defendants argue that the instructions proposed were not in the proper form to be used by the court, and rely upon the principle that in order to complain on appeal an aggrieved party must show that he requested `a specific and correct instruction.' [Citation.] They add that though the trial court has the power to modify a requested instruction, it has no duty to make such modification and may properly reject a requested instruction that is erroneous or incomplete. [Citation.] The rule of these cases, however, is not intended to sanction the kind of nit-picking which defendants' criticism of proposed BAJI instruction No. 3.77 entails. Defendants contend that the instruction is incorrect because `death' should be used in place of `injury.' ... The situation, therefore, is governed by the holding in Laird v. Moss, 173 Cal.App.2d 48, 53 [342 P.2d 463]: `The few redundant words could have been crossed out with the stroke of a pen. The imperfections were on a par with clerical errors that are easily corrected. Such trivial inaccuracies do not justify the refusal of an instruction where the result would be to leave the jury inadequately instructed on a material issue in the case. The instruction should have been corrected by the [this] court and given.'" (Id. at p. 640, 128 Cal.Rptr. 807.)
We cannot distinguish this case from Fish. We also see no reason why the trial judge could not have made the interlineation change required to conform the printed instruction to the particular facts of this case if a realistic concern existed that the jury might have been confused by the reference to "injury." In that regard, we have some question about the sincerity of that expression of concern since neither the trial court nor Dr. Limansky's counsel had much problem with the use of the word "injury" in a number of other instructions (see fn. 13, post).
3. The Trial Court's Instructional Error Was Prejudicial
It is clear from this record that causation was the critical issue as to which the parties and their expert witnesses were clearly divided. It is plaintiffs' position that Dr. Limansky negligently failed to diagnose Cynthia's post surgical problems as being due to pulmonary emboli. Specifically, and viewing the evidence in the light most favorable to the plaintiffs, the expert evidence which they offered (Dr. Forbes) reflected that Dr. Limansky's care and treatment of Cynthia fell below the standard of care in that (1) he failed to consult an internist or cardiologist following her abnormal EKG on May 20, 1993, (2) despite awareness of her abnormal emergency room EKG on May 30, her symptoms of rapid pulse and respiratory rates and her prior history, he failed to insist that she be admitted as a patient to Brea Community Hospital, (3) he made no inquiries concerning the May 30 emergency room visit nor made any progress note of it, and (4) he failed to prescribe Cynthia post-operative use of compression stockings as a prophylactic to prevent blood clots.
Plaintiffs' expert evidence as to causation (Dr. Schapira) tended to prove that Cynthia suffered from pulmonary emboli at all times from and after May 20, 1993, approximately two weeks prior to her death and was thereafter discoverable, and that the condition was treatable as late as June 2, 1993, just two *265 days before her death. Such treatments that were available included blood-thinning drugs, a blood filter inserted in decedent's large veins and the prescription of compression stockings. None of these things were done by Dr. Limansky during his treatment of Cynthia, and the jury could reasonably infer, since the cause of death was admittedly pulmonary emboli, that the failure to properly and timely diagnose and treat decedent's condition was a substantial factor in causing her death.
Dr. Limansky argues that no expert expressly testified to that effect. That is not entirely accurate; such testimony was effectively presented. However, the problem with such testimony arises because the opinions of plaintiffs' causation expert were severely and unfairly limited by defense counsels' repeated assertion of technical objections which, in our view, were improperly sustained by the trial court.[10] Nonetheless, viewing the evidence in the light most favorable to the plaintiffs, there appears to be sufficient evidence presented to have permitted the jury to reasonably infer that Dr. Limansky's acts and omissions in his care and treatment of Cynthia was a substantial factor in her death.
As we have noted, instructional error requires reversal "where it seems probable that the error prejudicially affected the verdict." (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 983, 67 Cal.Rptr.2d 16, 941 P.2d 1203; quoting Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 573-580, 34 Cal.Rptr.2d 607, 882 P.2d 298.) "To prevail on a claim of instructional error, the appellant must show a reasonable probability of a more favorable result in the absence of the error. This determination depends heavily on the particular nature of the error, and its effect on the appellant's ability to place his or her full case before the jury. Actual prejudice must be assessed in the context of the trial record; article VI, section 13 of the California Constitution requires us to examine `the entire cause, including the evidence' to determine whether the verdict was prejudicially affected." (Daum v. SpineCare Medical Group, Inc. (1997) 52 Cal. App.4th 1285,1313, 61 Cal.Rptr.2d 260.) Relying on Soule, one court recently summarized the rule: "In assessing prejudice from an erroneous instruction, we consider, insofar as relevant, `(1) the degree of conflict in the evidence on critical issues [citations]; (2) whether respondent's argument to. the jury may have contributed to the instruction's misleading effect [citation]; (3) whether the jury requested a rereading of the erroneous instruction [citation] or of related evidence [citation]; (4) the closeness of the jury's verdict [citation]; and (5) the effect of other instructions in remedying the error [citations].` " (Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344, 1366, 78 Cal.Rptr.2d 627.) We discuss these issues in turn.
a. Evidentiary Conflict
This was a hard-fought case. Conflicts in the evidence on critical causation issues here were sharp and extensive. Plaintiffs' testimony and that of their experts differed widely from that of Dr. Limansky and his witnesses regarding almost every factual element of the case. Cynthia had two separate surgeries performed by Dr. Limansky assisted by other medical personnel. other physicians were involved in treating her during her recuperation in the hospital after these surgeries. Emergency room doctors, in consultation with Dr. Limansky, also treated her when she was admitted for *266 urgent care. Lastly, it was also asserted by Dr. Limansky's experts that Cynthia's own condition of obesity and her relative inactivity were substantial factors giving rise to pulmonary emboli resulting in her death. It is obvious that such evidence would support the conclusion that any one of these factors, or possibly several of them operating concurrently, may each have been substantial factors in causing Cynthia's death.
Both parties' experts testified that obesity and sedentary living are factors known to increase the risk that a recovering surgical patient will suffer circulatory problems and possible blood clotting. Plaintiffs' obstetric and gynecology expert, Dr. Forbes, also testified that standard prophylactic care for an obese patient recuperating from a full hysterectomy who was experiencing dizziness, rapid heartbeat, and shortness of breath would be to prescribe wearing pressure or compression stockings and to further monitor any abnormal test results. Dr. Limansky's obstetric and gynecological expert, Dr. Parks, took direct issue with each of these suggested practices, stating that while they were used by some doctors they were neither required, nor the standard of practice, nor effective. He further testified that the number one symptom of a pulmonary embolus is chest pain and that without that symptom, increased breathing rates or shortness of breath, and rapid heart rate alone would not indicate a pulmonary embolus in a patient, but could merely be a normal side effect of obesity.[11]
This state of the evidentiary record clearly establishes that full and complete jury instructions on causation were critical.
b. Argument of Counsel
Defense counsels' closing argument focused the jury's attention on these very conflicts in the expert testimony. It was argued: "... you've heard testimony, and it might even be difficult to hear testimony from a number of people who qualified as what we have referred to as `experts.' Experts tend to disagree in trials. I think you've seen that in this particular case." These sharp conflicts in the evidence about what symptoms and warning signs are present with a pulmonary embolus and what precautions should have been taken with the decedent to prevent her death, strongly suggest that if an appropriate instruction on multiple or concurrent causes was given to the jury a verdict more favorable to plaintiffs was probable.
In both opening statement and closing argument, defense counsel emphasized the principal contention, that nothing Dr. Limansky did caused Cynthia's death. That unfortunate outcome was due to her own circumstances. For example, in his opening statement counsel asserted: "[N]othing, nothing either of these physicians did, caused or contributed to the death of this patient ... this patient died from a minutes old thromboembolus, which blocked all circulation to both lungs and killed her suddenly, acutely on June 4th, 1992; and that in all probability, it was due to the fact of her morbid obesity, her sedentary nature, and all of the consequences of those two things." These statements highlight the serious consequences which can flow from a failure to give a concurring causation instruction. The multiple possible causes of decedent's death were emphasized, but the jury was never told how to evaluate, weigh, or compare those causes. Rather, it was led to believe, based on defense counsel's argument, that a number of causes mandated a defense verdict.
c. Impact Of Other Instructions
Dr. Limansky also argues that other instructions adequately addressed the question of multiple causation and its effect on the jury's determination of cause. We again disagree. None of the other instructions he cites tell the jury in plain language that there can be more than one cause of injury or that any negligent conduct that contributes substantially is a cause. Dr. Limansky argues that the jury was properly instructed on the concurring cause principle by virtue of the following instructions which were given: *267 BAJI Nos. 2.60 (evidentiary burdens), 3.53 (defining contributory negligence), 3.76 (defining legal cause), 6.28 (impact of contributory negligence) and 14.91 (jury's function in evaluating negligence). However, we agree with plaintiffs that none of these instructions adequately addressed the basic legal principle which is at the heart of this case.[12]
(1) BAJI No. 2.60. This instruction reads: "The plaintiffs have the burden of proving by a preponderance of the evidence all of the facts necessary to establish: [H] 1. That defendants or any of them was negligent; [¶] 2. That the negligence of the defendants or any one of them was a cause of injury[13] and damage to the plaintiffs; and [¶] 3. The nature and extent of the injuries claimed to have been suffered by plaintiffs, the elements of plaintiffs' damages, and the amount thereof. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish: [¶] 1. That the defendant was negligent; [¶] 2. The decedent's negligence contributed as a cause to [her death]." (Italics added.)[14]
Dr. Limansky argues that the words "defendants or any of them" somehow describes concurrent or multiple causation. We again disagree. BAJI No. 3.77 explains that there may be more than one cause of an injury. It does not make it clear that all of the defendants acting concurrently with each other, or non-defendant medical personnel, the plaintiffs, or even Cynthia herself, could each be found responsible for causing her death. Likewise, BAJI No. 2.60 does not define the term "concurrent cause." In short, BAJI 2.60 is not, and was not intended to be, an adequate instruction on the law of concurrent or multiple causes.
(2) BAJI No. 3.53. This instruction defined contributory negligence: "Contributory negligence is negligence on the part of a decedent which, combining with the negligence of a defendant, contributes as a cause in bringing about death. Contributory negligence, if any, on the part of the decedent does not bar a recovery by the [heirs] against the defendant but the total amount of damage to which the [heirs] would otherwise be entitled shall be reduced in proportion to the amount of negligence attributable to the decedent."
Dr. Limansky relies heavily upon this instruction to support his argument that the jury was effectively and sufficiently instructed with respect to multiple concurrent causes. We disagree. This instruction does not clarify that there may be more than one cause of an injury. The isolated portion of the text emphasized by Dr. Limansky, "Contributory negligence is negligence on the part of a decedent which, combining with the negligence of a defendant, contributes as a cause in bringing about death" (italics added), does not clarify that there can be more than one cause of an injury. This instruction does nothing to clarify that nondefendant medical personnel or even the plaintiffs can each be found responsible for causing Cynthia's death. Likewise, it does not define the term "concurrent cause" and it is not adequate instruction on the law of concurrent or multiple causes.
*268 (3) BAJI No. 3.76 defines legal cause: "The law defines cause in its own particular way. A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm." (Italics added.)
This instruction certainly does not clarify that there may be more than one cause of an injury as Dr. Limansky argues. Nor does it inform the jury that all of the defendants acting concurrently with each other, or nondefendant medical personnel, the plaintiffs, or even Cynthia herself, could each be found responsible for causing her death. Again, this instruction does not define the term "concurrent cause" and is not adequate instruction on the law of concurrent or multiple causes. Furthermore, as the use note to BAJI 3.77 directs: "Except as noted, this instruction should be given immediately following BAJI 3.76 whenever the issue of negligence of two or more defendants or contributory negligence is submitted to the jury." (BAJI No. 3.77, supra, p. 100, italics added.) While 3.76 was given in a form which twice used the word "injury," 3.77 was refused specifically because it contained that word.
(4) BAJI No. 6.28 relates to a patient's duty to follow instructions: "A patient has a duty to follow all reasonable and proper advice and instructions regarding care, activities and treatment given by such patient's doctor. A doctor is not liable for any injury resulting solely from the negligent failure of the patient to follow such advice and instructions. However, if the negligence of the doctor is a cause of the injury to the patient, the contributory negligence of the patient, if any, in not following such advice and instructions, does not bar recovery by the patient against the doctor but the total amount to which the patient would otherwise be entitled shall be reduced in proportion to the negligence attributable to the patient."
Like the other instructions cited by Dr. Limansky, BAJI No. 6.28 does not point out that there may be more than one cause of an injury. The isolated portion of the text emphasized by him, "if the negligence of the doctor is a cause of the injury to the patient, the contributory negligence of the patient ... does not bar recovery by the patient against the doctor'' (italics added) simply does not clarify that there can be more than one cause of an injury or even define or explain the term "concurrent cause."
(5) BAJI No. 14.91 describes the apportionment of negligence: "In order to determine the proportionate share of the total fault attributable to the decedent, you will of necessity be required to evaluate the combined negligence of the decedent and the negligence of the defendants whose negligence contributed as a cause to decedent's death. In comparing the fault of such persons you should consider all of the surrounding circumstances as shown you by the evidence."
BAJI 14.91 also does not explain that there may be more than one cause of an injury. The isolated portion of the text emphasized by Dr. Limansky, "the combined negligence of the decedent and the negligence of the defendants whose negligence contributed as a cause to decedent's death" (italics added) does not clarify that there can be more than one cause of an injury. Rather, it professes that negligence may be combined. Like the others, it does not clarify that all of the defendants acting concurrently with each other, or non-defendant medical personnel, the plaintiffs, or even Cynthia herself, could each be found responsible for causing her death. Finally, it does not define the term "concurrent cause" and therefore is not adequate instruction on the law of concurrent or multiple causes.
Thus, each of these instructions falls short in providing a ground for Dr. Limansky's argument that the omission of BAJI No. 3.77 caused plaintiffs no prejudice because the jury was otherwise adequately instructed. None of these instructions was designed to explain multiple causation. That is what BAJI No. 3.77 is for. Unfortunately for plaintiffs, the jury never received the explanation on this critical issue which the law required.
d. The Jury's Verdict
Finally, while the jury did not request a rereading of any instructions, it was two and one-half days in deliberation and did return a special verdict finding the defendant to have been negligent in his treatment of the decedent, but, by the minimum margin of *269 nine to three, concluded that such negligence was not a cause of her death.
We are satisfied that plaintiffs have carried their burden of demonstrating the existence of prejudice to them resulting from the trial court's refusal to give BAJI 3.77. Whatever the relative merits of the parties' opposing arguments regarding plaintiffs' claim, the plaintiffs were entitled to a fair trial. This they did not receive. We must reverse.
DISPOSITION
The judgment is reversed and the matter is remanded for a new trial on all issues. On remand, this case shall be assigned to a different trial judge. Plaintiffs shall recover their costs on appeal.
KITCHING, J., and ALDRICH, J., concur.
NOTES
[1] Plaintiffs filed suit against several other doctors as well as the Brea Community Hospital. The claims against all defendants except Dr. Limansky and a Dr. Gregory Maddex were disposed of by settlement or otherwise. The jury found in favor of Dr. Maddex and plaintiffs do not appeal from the judgment in his favor.
[2] Since the only contention on appeal related to a jury instruction, "[i]n assessing an instruction's prejudicial impact, we cannot use the view of the evidence and inferences most favorable to the [prevailing party]. [Citations.] Instead, we must assume the jury might have believed [appellant's] evidence and, if properly instructed, might have decided in [appellant's] favor. [Citations.]" (Shell Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715, 773, 15 Cal.Rptr.2d 815.) Accordingly, we state the facts most favorably to the party appealing the instructional error alleged, in accordance with the customary rule of appellate review. (Sills v. Los Angeles Transit Lines (1953) 40 Cal.2d 630, 633, 255 P.2d 795.)
[3] The computer generated report on the EKG read: "sinus tachycardia. ST and T wave abnormality. Consider inferior ischemia. Abnormal E.K.G. unconfirmed."
[4] That was her previously scheduled post-operative appointment. For that reason, she apparently did not go and see Dr. Limansky on Monday, June 1.
[5] At trial, the pathologist testified that he found that a coiled, twisted blood clot had lodged in the main pulmonary artery; it lodged in the area of the main pulmonary artery where it branches into arteries to supply blood to the left and right lungs. The clot's occlusion (blockage) was complete in the entire intersection. The clot completely plugged the pulmonary artery. The coiled appearance of the clot was significant according to the pathologist. A clot that originates in the pulmonary artery will be layered, not coiled. If a clot is in the shape of a spiral or coil, as here, it indicates that it came from a distant location. The embolus twists as it travels the blood stream. The spiral form of the clot can be viewed with the naked eye. Most clots with a coiled appearance come either from the legs or from the pelvic or abdominal area.
[6] Without any real warning, at least as far as the record reflects, the trial court summarily denied the plaintiffs' request:
"The Court: 3.77 the court will not give. It's not in proper form for the court to give based on the way it's been presented to the court in this case. Although I did bring it up for reconsideration. I did notno modifications were made to the one that was given to the court. It's not appropriate. That's the court's ruling on that. Is there anything else we need to address, Mr. Hidalgo, Mr. Shelley, Mr. Thomas?
"Mr. Hidalgo: Is the 3.77you're referring to the one that I gave to court or the one that was shown to us this morning. Those are two different ones.
"The Court: The one that you had previously given to me, I don't think the way it's done applies. It is not appropriate for this case either with the terminology that you used. I don't think it was properly tailored. It's a wrongful death case.
"Mr. Hidalgo: Can I just take a quick look at it, please.
"The Court: It refers to injury, and this is a wrongful death. Okay. All right. So I don't think it's appropriate with the language. And that was the one given to me yesterday. The one I proposed this morning, no one suggested modification to it. So it's still not in proper form. So I don't think it was redacted in such a fashion that it can be utilized for this case.
"Mr. Hidalgo: For the record, I believe that may I just make a statement for the record.
"The Court: No, sir. That's my ruling. When you give me an instruction, and it's not right, I don't have to accept it. And that's the court's ruling. Okay. All right."
[7] BAJI Instruction No. 3.77 on concurring causes, as submitted by plaintiffs provided: "There may be more than one cause of an injury. When negligent conduct of two or more persons contributes concurrently as a cause of an injury, the conduct of each is a cause of the injury regardless of the extent to which each contributes to the injury. A cause is concurrent if it was operative at the moment of the injury and acted with another cause to produce the injury."
[8] See footnote 6, ante and footnote 9, post.
[9] BAJI 3.77, which is titled "Concurring Causes," in its entirety provides:
"There may be more than one cause of an injury. When [negligent] [or] [wrongful] conduct of two or more persons] [or [[negligent] [or] [wrongful] conduct and a defective product]] contribute[s] concurrently as [a] cause[s] of a injury, [the conduct of] each is a cause of the injury regardless of the extent to which each contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. [It is no defense that the [negligent] [wrongful] conduct of a person not joined as a party was also a cause of the injury.]"
[10] Relying upon a stipulation limiting Dr. Schapira to causation testimony, the trial court narrowly and unfairly circumscribed his testimony. For example, every attempt to provide foundational testimony and to explain the basis for his causation opinion by reference to Cynthia's treatment by Dr. Limansky and other doctors was objected to on the ground that such testimony went to "standard of care," not causation. Inexplicably, the trial court repeatedly sustained these objections, apparently not recognizing that testimony regarding the past treatment of Cynthia and the viability, efficacy and availability of treatment options might well be, and often is, relevant to both standards of care and causation. If the testimony properly pertained to causation, it should have been allowed even though it might also have been relevant to the standard of care issue. The trial judge's rulings on this point were truly unfortunate. The consequences to the presentation of plaintiffs' case were dramatic and could only have had an unfair negative impact on the credibility and effectiveness of plaintiffs' expert testimony.
[11] We note, however, that since the jury found that Dr. Limansky had been negligent, plaintiffs' evidence regarding the standard of care and Dr. Limansky's failure to meet that standard was apparently accepted.
[12] In our recitation of these instructions we have highlighted the trial court's use of the word "injury" or "injuries." Given the court's dispositive concern about the use of such word(s) in BAJI 3.77, we find the unquestioned use of the same words in other instructions truly puzzling.
[13] We note that although the trial judge's written jury instructions stated that it was plaintiffs' burden to prove "2. That the negligence of the defendants or any one of them was a cause of injury and damage to the plaintiffs . ..," when she read this burden of proof instruction (BAJI 2.60, as modified) to the jury, she stated, "The negligence of the defendants or any one of them was the cause of injury and damage to the plaintiffs...." In and of itself this was not a significant error since the jury was apparently given access to the written instructions during their deliberations and the special verdict form referred to the defendants' negligence as "a cause." However, in the context of the failure to give BAJI 3.77 and the critical nature of the causation issue, it cannot help but be another factor in our consideration of the question of prejudice.
[14] The original concluding text of BAJI No. 2.60 was crossed out and the words "her death" were handwritten in place of the original text. Why the trial judge could not have done this with respect to BAJI 3.77 is beyond this court's understanding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262921/ | 84 Cal.Rptr.2d 601 (1999)
71 Cal.App.4th 1443
RODEO SANITARY DISTRICT, Plaintiff and Appellant,
v.
BOARD OF SUPERVISORS of Contra Costa County, Defendant and Respondent.
Mt. View Sanitary District, Plaintiff and Appellant,
v.
Board of Supervisors of Contra Costa County, Defendant and Respondent.
Nos. A082232, A082245.
Court of Appeal, First District, Division Five.
May 10, 1999.
Review Denied August 18, 1999.
*602 David J. Levy; Marchmont J. Schwartz; and Bryce C. Anderson, Concord, for Plaintiffs and Appellants.
Victor J. Westman, County Counsel, and Bernard Knapp, Deputy County Counsel, for Defendant and Respondent.
STEVENS, J.
In these consolidated appeals, the appellant sanitary districts contend the Board of Supervisors of Contra Costa County, within which the districts lie, could not forbid them from continuing to carry out their traditional function of collecting and disposing of solid waste. The dispositive issues presented are (1) whether the county's actions were a proper exercise of its police power, and (2) whether its actions were authorized by the California Integrated Waste Management Act of 1989 (Pub. Resources Code, § 40000 et seq.). The sanitary districts' contentions have merit, and we therefore reverse the trial court's judgment.
I. FACTS AND PROCEDURAL HISTORY
The Rodeo Sanitary District and the Mt. View Sanitary District (the districts) are public corporations organized under the provisions of the Sanitary District Act of 1923 (the 1923 Act) (Health & Saf.Code, § 6400 et seq.). The districts have operated for at least the past 50 years, collecting and disposing *603 of garbage within their respective district boundaries, which lie within unincorporated areas of Contra Costa County (the county). In 1985 and 1986, both districts entered into long-term, exclusive garbage collection contracts with Pleasant Hill Bayshore Disposal (Bayshore). Under those contracts, Bayshore was to collect garbage within the districts into the next century.
In 1989, the Legislature passed the California Integrated Waste Management Act of 1989 (the 1989 Act) (Pub. Resources Code, § 40000 et seq.), which we discuss in the next part of this opinion. In 1991, and purportedly under the authority of the 1989 Act, the county's board of supervisors adopted a new ordinance, No. 91-31 (the 1991 Ordinance), which requires that any person providing solid waste collection or disposal services within unincorporated areas of the county must have an agreement directly with the county, not with the districts. The 1991 Ordinance also envisioned that the county and the local districts would enter into a memorandum of understanding with reference to garbage collection, but apparently any negotiations between the districts and the county proved unsuccessful.
Pursuant to the 1991 Ordinance, and despite the opposition of the districts, the county in 1996 granted to Bayshore the county's own exclusive garbage collection franchises covering the districts' service areas, and directed that all proceeds should be paid to the county, not the districts. In essence, although the districts continue to exist on paper, the county assumed the districts' major function of collecting garbage within each district.
The districts brought suit against the county, challenging these actions. It was their contention that the county had no legal authority to take over their garbage collection operations, had engaged in an inverse condemnation of the districts' operations, and had interfered with their economic relationships with Bayshore. The districts' complaints sought declaratory and injunctive relief.
Arguing it had the legal authority to supersede the districts' authority by granting exclusive franchises for garbage collection within the territories of the two districts, the county successfully obtained summary judgment. The districts brought separate timely appeals from the resulting judgments. We have ordered the districts' appeals to be consolidated for purposes of briefing, argument, and the issuance of this opinion.
II. DISCUSSION
A. STANDARD OF REVIEW
We review a summary judgment de novo. (Environmental Protection Information Center v. Department of Forestry & Fire Protection (1996) 43 Cal.App.4th 1011, 1015-1016, 50 Cal.Rptr.2d 892.) To determine whether a summary judgment was proper we follow the same approach required of the trial court. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App.3d 1061, 1064-1065, 225 Cal.Rptr. 203.) Here, only legal issues are presented, and we simply determine whether the county was entitled to judgment as a matter of law. (Code Civ. Proc, § 437c.)
B. THE COUNTY DID NOT HAVE GENERAL POLICE POWER OVER THE DISTRICTS
The districts are separate legal entities established by local voters residing within the districts pursuant to state statute, the 1923 Act. This act specifically grants to sanitary districts the legal authority and power to collect and dispose of waste and garbage within their jurisdictional boundaries. (Health & Saf.Code, § 6518.5.)
Sanitary districts are, therefore, creatures of state law; and as public corporations, they exercise a portion of the police power of the state within their district boundaries, independent of the police power of a city or a county over unincorporated areas, in the event of a direct conflict of laws. (See Cent. Contra Costa Etc. Dist. v. Superior Ct. (1950) 34 Cal.2d 845, 849, 215 P.2d 462; West Bay Sanitary Dist. v. City of East Palo Alto (1987) 191 Cal.App.3d 1507, 1510-1512, 237 Cal.Rptr. 245 (West Bay Sanitary); see also Cal. Atty. Gen., Indexed Letter, No. IL 9050 (Dec. 4, 1933); 10 Ops.Cal.Atty.Gen. 13, *604 14 (1947); cf. also In re Sozzi (1942) 54 Cal.App.2d 304, 306,129 P.2d 40.)
The state Constitution also provides that a county has the power to "make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Cal. Const., art. XI, § 7, italics added.) County ordinances and other "`[l]ocal legislation in conflict with general law is void.'" (People ex. rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484, 204 Cal.Rptr. 897, 683 P.2d 1150 (Mendocino).) Where, as here, a general law of the state grants certain powers to sanitary districts within their boundaries, the county or city may not exercise its police power to override those district powers, because such action would be in conflict with the general laws of the state. (See West Bay Sanitary, supra, 191 Cal.App.3d at p. 1512, 237 Cal.Rptr. 245.)
By way of illustration, in West Bay Sanitary, supra, 191 Cal.App.3d at pp. 1509-1512, 237 Cal.Rptr. 245, Division Four of the First Appellate District held that a city had no power to control a sanitary district's authority over wastewater discharge permits. The issuance of these wastewater discharge permits was a traditional function of the sanitary district, but the city sought to require that the district not issue such permits without first either giving notice to the city and obtaining its consent, or alternatively, pursuing the matter to arbitration before a third party. Relying on the powers granted by the Legislature to the district under the 1923 Act, this court condemned the city's attempt to exercise authority over the independent sanitary district, characterizing such action as an attempt to "usurp powers which the Legislature has vested exclusively in the board of the sanitary district." (Id. at p. 1511, 237 Cal.Rptr. 245.)
Consistent with the First Appellate District's holding in West Bay Sanitary, persuasive California Attorney General opinions have also reasoned that a sanitary district's authority will prevail over a county's authority in the event of direct conflict over matters within the district's jurisdiction. In one early opinion which was requested by the District Attorney of San Mateo County, the Attorney General analyzed the statutory power of a sanitary district under the 1923 Act to regulate the collection of garbage within district borders. The Attorney General concluded that San Mateo County had no right to legislate by ordinance upon the subject of dumping or depositing of garbage within the district where the sanitary district had already exercised its regulatory power on the same subject. In the words of that opinion, "the county has no right to legislate upon the subject of the dumping and depositing of garbage within the exterior boundaries of a sanitary district where the district itself has legislated upon the question." (Cal. Atty. Gen., Indexed Letter, No. IL 9050, supra.)
Similarly, guidance from the Attorney General was sought to resolve a conflict over regulations which required fees for building inspections in unincorporated areas of Santa Clara County, which areas were also within the jurisdiction of a sanitary district. The Attorney General again concluded that, in the event of conflict, the sanitary district's regulations requiring fees for building inspections for plumbing connections would prevail over those of the county: "The sanitary districts in question are formed under the provisions of [the 1923 Act]. This is a comprehensive statute giving districts formed thereunder broad powers.... [¶] Section 6490 of the [Health and Safety] Code permits sanitary districts to adopt what are termed `general regulations,' which must be published as provided by the section.... [¶] Such regulations or ordinances must, of course, be confined and relate to the carrying out of the powers and duties given by law to such sanitary districts.... [¶] These regulations, in our opinion, are paramount within their sphere in the district. That is, if a plumbing regulation should be in direct conflict with the county ordinance, the district ordinance, being a special law applying to that particular locality, will prevail over the more general county ordinance." (10 Ops. Cal.Atty.Gen., supra, at p. 14.)
We view the foregoing opinions of the Attorney General to be both relevant and well reasoned. (See California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, *605 17, 270 Cal.Rptr. 796, 793 P.2d 2 (California Assn.).) They stand for the broad proposition that the county has no general police power over a sanitary district's operations in unincorporated areas of the county, absent a specific grant of such power by the Legislature. This analysis is wholly consistent with that taken by the First Appellate District, when considering the powers of sanitary districts vis-a-vis the powers of counties and cities. (See West Bay Sanitary, supra, 191 Cal.App.3d at p. 1512, 237 Cal.Rptr. 245.) While opinions of the Attorney General are not binding, they nevertheless are entitled to considerable weight. "`In the absence of controlling authority [to the contrary], these opinions are persuasive "since the Legislature is presumed to be cognizant of the construction of the statute." [Citation.]' [Citation.]" (California Assn., supra, 51 Cal.3d at p. 17, 270 Cal.Rptr. 796, 793 P.2d 2; accord, Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 804-805, 178 Cal. Rptr. 299; Lute v. Governing Board (1988) 202 Cal.App.3d 1177,1182, 249 Cal.Rptr. 161; Bell Gardens Bicycle Club v. Department of Justice (1995) 36 Cal.App.4th 717, 741, fn. 6, 42 Cal.Rptr.2d 730.)
By contrast, the two cases principally relied upon by the county for contrary results are not on point. In City of Fresno v. Pinedale County Water Dist. (1986) 184 Cal. App.3d 840, 229 Cal.Rptr. 275 (Pinedale), the issue on appeal was whether a city's annexation of a substantial portion of a water district's territory terminates the district's authority to furnish solid waste collection service to the annexed territory, following expiration of a five-year "phase-out term." There, it was ruled that a charter city could take over waste collection efforts within the district's borders, after the city had annexed areas covered by a water district. Critical to the result in Pinedale was the fact that the charter city first annexed the district, and then used its preeminent charter powers to assume the district's duties. (Id., at pp. 843-848, 229 Cal.Rptr. 275.) Under former Health & Safety Code section 4260 (repealed by Stats.1989, ch. 1095, § 19, p. 3810, now Pub. Resources Code, § 49400), and former Government Code section 66771 (repealed by Stats.1989, ch. 1095, § 4, p. 3810, now Pub. Resources Code, § 43021), a charter city was granted the exclusive right to manage refuse collection within its borders. Consequently, the ordinance in Pinedale was upheld as a result of a specific statutory grant of power to cities. The present case considers neither the powers of a charter city nor a city annexation.
The Third Appellate District's decision in Baldwin v. County of Tehama (1994) 31 Cal. App.4th 166, 36 Cal.Rptr.2d 886 (Baldwin), also fails to address the issue under consideration here. Baldwin questioned whether a county was precluded from regulating groundwater because the state had preempted the field. In concluding that state law, while regulating aspects of groundwater, did not entirely exclude county regulation, the court examined various state statutes regulating water usage in the context of potential conflict between the county ordinance and state statutes. (Id. at pp. 172-178, 36 Cal. Rptr.2d 886.) Here, we do not consider any alleged conflict as between state law and local county regulation. Rather, we consider instead the independent powers of sanitary districts relative to the police powers of other local municipal organizations. (See West Bay Sanitary, supra, 191 Cal.App.3d at p. 1512, 237 Cal.Rptr. 245.)
We therefore conclude the county had no general police power to assume legal authority over the districts' operations. The districts were created and authorized by state law, in the 1923 Act, to carry out those functions. The county's attempt to use its general police power to overrule the district's traditional legal authority over these matters was in conflict with state law, and is therefore void. (See Mendocino, supra, 36 Cal.3d at p. 484, 204 Cal.Rptr. 897, 683 P.2d 1150; West Bay Sanitary, supra, 191 Cal. App.3d at p. 1512, 237 Cal.Rptr. 245.)
C. THE 1989 ACT DID NOT GIVE THE COUNTY ADDITIONAL LEGAL AUTHORITY OVER THE DISTRICTS
The county next suggests that even if its general police power would not allow it to take over the districts' local garbage collection operations, the county has been granted *606 this legal authority by virtue of the 1989 Act. It is claimed that the 1989 Act allowed the county to pass the 1991 Ordinance that authorized taking over the districts' powers to collect garbage within district boundaries.
The 1989 Act was a comprehensive reorganization of many laws regarding waste management, with amendments designed in major part to encourage recycling as an alternative to increasingly crowded landfill disposal sites. (See Waste Management of the Desert, Inc. v. Palm Springs Recycling Center, Inc. (1994) 7 Cal.4th 478, 484, 28 Cal. Rptr.2d 461, 869 P.2d 440 (Waste Management ); Waste Resource Technologies v. Department of Public Health (1994) 23 Cal. App.4th 299, 304-305, 28 Cal.Rptr.2d 422 (Waste Resources); City of Alhambra v. P.J.B. Disposal Co. (1998) 61 Cal.App.4th 136, 145-146, 71 Cal.Rptr.2d 364 (P.J.B.Disposal); Empire Waste Management v. Town of Windsor (1998) 67 Cal.App.4th 714, 721-722, 79 Cal.Rptr.2d 262 (Empire Waste).) Although it has been noted that the 1989 Act is not "a model of clarity" (P.J.B. Disposal, supra, at p. 148, fn. 14, 71 Cal.Rptr.2d 364), and although the First Appellate District has repeatedly held that the Legislature in passing the 1989 Act did not intend to displace local control over garbage collection (Waste Resources, supra, at pp. 307-309, 28 Cal. Rptr.2d 422; Empire Waste, supra, at pp. 721-723, 79 Cal.Rptr.2d 262), the county nevertheless asserts that two particular portions of the 1989 Act give it the power to end the historical role of local sanitary districts in waste collection and disposal.
The county first cites to Public Resources Code[1] section 40059, which provides in pertinent part: "(a) Notwithstanding any other provision of law, each county, city, district, or other local governmental agency may determine all of the following: [¶] (1) Aspects of solid waste handling which are of local concern, including, but not limited to, frequency of collection, means of collection and transportation, level of services, charges and fees, and nature, location, and extent of providing solid waste handling services .... [¶] ... [¶] (b) Nothing in this division modifies or abrogates in any manner either of the following: [¶] (1) Any franchise previously granted or extended by any county or other local governmental agency." (Italics added.) The county argues that the language found in section 40059 refers to the operation of the 1989 Act, not to actions taken pursuant to the 1989 Act, and thus the Legislature did not intend to prevent counties from acting to modify or abrogate existing contracts and permits. We disagree.
If anything, section 40059 appears to support the position asserted by the districts, not the county. This section specifically preserves the districts' power over garbage collection as an issue of "local concern" (see Waste Resources, supra, 23 Cal.App.4th at pp. 307-309, 28 Cal.Rptr.2d 422; Empire Waste, supra, 67 Cal.App.4th at pp. 721-723, 79 Cal.Rptr.2d 262), and also provides that this power over issues of local concern shall prevail over "any other provision of law." As the Attorney General has recognized, section 40059 overrides or supersedes any other provisions of the 1989 Act which might indicate to the contrary: "The Legislature has recognized that the terms of section 40059 may be inconsistent with the language of some other statute or statutes and has determined that the conflict should be resolved in favor of section 40059's terms and conditions." (79 Ops.Cal.Atty.Gen. 28, 33 (1996).)
It is, of course, true that section 40059 grants to the county, as well as to the districts, the same right to determine matters of local concern within the county's own jurisdiction. However, section 40059 does not provide that the county can override the districts' authority over matters of refuse collection within the borders and jurisdiction of the districts. This section also appears to envision, by including specific reference to districts, that they will continue to fulfill this local function. Absent from section 40059 is any expression by the Legislature of intent to change the law in this respect, or erase the customary role of sanitary districts in performing their traditional function. (See *607 Waste Resources, supra, 23 Cal.App.4th at pp. 307-309, 28 Cal.Rptr.2d 422; Empire Waste, supra, 67 Cal.App.4th at pp. 721-723, 79 Cal.Rptr.2d 262.)
The county also refers to section 49520, which forbade the immediate cancellation of existing waste haulage contracts, upon passage of the 1989 Act, but allowed the cancellation of existing waste haulage contracts on five-years notice, by providing in part: "If a local agency has authorized ... a solid waste enterprise to provide solid waste handling services and those services have been lawfully provided for more than three previous years, the solid waste enterprise may continue to provide those services up to five years."[2] The county asserts that the foregoing "confirms that even existing contracts may be terminated after proper notice and the expiration of the statutory period" and, in any event, sections 49520 and 40059 were intended to protect waste haulers and not the districts.
We agree, at least in part, with the county's assertion that this provision is intended to protect not the districts, but the waste haulers. However, this provision also was not intended, nor does it purport, to allow the county to override the independent authority of the districts on five-years notice, as the county implies. Section 49520 is silent on that point, and is best interpreted as a compromise which protected, to some extent, the waste haulers' existing contracts. This is consistent with the interpretation of section 49520 adopted by the P.J.B. Disposal court, with which we agree. (See P.J.B. Disposal, supra, 61 Cal.App.4th at pp. 146-147, 71 Cal.Rptr.2d 364.)[3]
The county also adverts generally to the overall structure of the 1989 Act, and the asserted policies underlying it, as evidencing the Legislature's intent to displace the authority of local sanitary districts, sub silentio. It is true, as the county urges, that the 1989 Act envisions the preparation and implementation by the county of "countywide integrated waste management plans," in order to encourage recycling and less wasteful practices (§§ 41750-41813), which we do not doubt are worthy goals. Indeed, a county that fails to prepare an adequate plan is subject to a fine of up to $10,000 per day for its noncompliance. However, there is nothing in these sections regarding the preparation and implementation of the countywide plan, which specifically endows a county with the authority to take over the operations of local independent sanitary districts. Any such implication would in any event be inconsistent with, and overridden by, the provisions of section 40059. (Campbell v. State Farm Mut. Auto. Ins. Co. (1989) 209 Cal. App.3d 871, 875, 257 Cal.Rptr. 542 ["To find in respondent's favor, we would have to interpret away clear language in favor of an ambiguity that does not exist."].)[4]
It must be conceded that the 1989 Act is somewhat unclear in describing the role to be played by the local districts in this planning and implementation process, since the districts are not mentioned at all in that *608 connection. Although the 1989 Act is not always "a model of clarity" (P.J.B. Disposal, supra, 61 Cal.App.4th at p. 148, fn. 14, 71 Cal.Rptr.2d 364), we find ourselves in agreement with the P.J.B. Disposal court's observation that some of the seeming lack of clarity or apparent logical gaps in the statute may be the result of deliberate choices by the Legislature, rather than inadvertence. (Ibid.) The Legislature recognized that a countywide planning approach would be appropriate, without thereby preempting the local powers of sanitary districts and cities within the county to continue their local garbage collection operations, an area consistently recognized as one of local concern. (See Waste Resources, supra, 23 Cal.App.4th at pp. 307-309, 28 Cal.Rptr.2d 422; Empire Waste, supra, 67 Cal.App.4th at pp. 721-723, 79 Cal.Rptr.2d 262.)
A review of the legislative history of the 1989 Act also supports our conclusion that its passage was not intended to alter the traditional authority of the districts, and therefore we would reach the same result even if the language of the 1989 Act were thought to be ambiguous on this point. (See People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal. Rptr.2d 77, 906 P.2d 1232.) Any changes that the 1989 Act made to existing law did not alter the authority of local sanitary districts over the collection and disposal of solid waste. Rather, this Act replaced the thenexisting Waste Management Board with a California Integrated Waste Management Board, composed of full time members; replaced the then-existing County Solid Waste Management Plan process with the renamed County Integrated Waste Management Plan process; and carried out technical legislative code maintenance, by reorganizing and renumbering various existing statutes from the Government Code and Health and Safety Code into the Public Resources Code.[5] Among the renumbered statutes were the predecessors to sections 40059 (derived from former Gov.Code, § 66757) and 49520 (derived from former Health and Saf.Code, § 4272.) Nowhere in the 1989 Act or its legislative history is there any suggestion that its passage was intended to allow counties to assume the powers of local sanitary districts. As the court in Baldwin observed in a similar context, the county's argument that there was some unexpressed legislative intent to overrule the district's authority "invites us to read legislative history tea leaves; we decline the invitation." (Baldwin, supra, 31 Cal.App.4th at p. 181, fn. 10, 36 Cal. Rptr.2d 886.)
The county itself acknowledges there is no language in the 1989 Act explicitly repealing the districts' legal authority to continue to perform its waste collection activities under the 1923 Act, but it suggests we should find an implied repeal of the districts' authority. However, implied repeals are disfavored. The repeal of the districts' authority would certainly not be implied unless such authority was completely irreconcilable with the 1989 Act. (See Stop Youth Addiction, Inc. v. Lucky Stores Inc. (1998) 17 Cal.4th 553, 569, 71 Cal.Rptr.2d 731, 950 P.2d 1086 (Stop Youth Addiction).) Because we conclude the districts' authority under the 1923 Act is not inconsistent with the 1989 Act, and is explicitly preserved by section 40059, contained in the latter Act, a finding of implied repeal is unwarranted.
At oral argument the county attempted to refine its contentions, suggesting that the underlying difficulty arises from the Legislature's failure to recognize, at the time of passage of the 1989 Act, potential conflict between the countywide planning process *609 and the districts' continued legal authority. Because the 1989 Act imposed no duties on the districts relative to the 1989 Act's planning process, the county asserts it is anomalous that the county faces exposure to fines upon failure to enact and implement a countywide plan in accordance with the 1989 Act, while the districts might flout the Act's provisions with impunity. The only way to resolve this apparent anomaly, the county reasons, is to judicially reform the 1989 Act by imposing a new legal construction. In the guise of interpretation, we are asked to repeal the districts' traditional authority over waste management.
First, as discussed above, we reject the county's argument because the perceived anomaly may, in fact, be intentional on the part of the Legislature. Secondly, the 1923 and 1989 Acts may be harmonized by recognizing the districts' authority as being contained within the 1989 Act. Further, it is not at all clear that the Legislature, if faced with this problem, would have responded by repealing the districts' authority. We must leave resolution of this question to the Legislature, should it desire to repeal existing law. (See Stop Youth Addiction, supra, 17 Cal.4th at p. 569, 71 Cal.Rptr.2d 731, 950 P.2d 1086.) As our Supreme Court has observed, in interpreting another apparent anomaly in the recycling provisions of the 1989 Act: "Our holding is based on the Act as it is written, not on a different, perhaps broader, version that could have been, or still may be, enacted." (Waste Management, supra, 7 Cal.4th at p. 490, 28 Cal.Rptr.2d 461, 869 P.2d 440.)
Finally, we find additional support for our conclusions in a decision from Division One of the First Appellate District, City of Dublin v. County of Alameda (1993) 14 Cal. App.4th 264, 280,17 Cal.Rptr.2d 845. There, the court wrote that the 1989 Act "expresses the need for a comprehensive program for solid waste management and sets waste reduction goals for cities and counties; at the same time, it also emphasizes local discretion in developing programs and acknowledges that many aspects of solid waste handling are of local concern." (Ibid.) Thus, despite its planning components, the 1989 Act specifically anticipates a continuation of existing local control over garbage collection services, which therefore remains subject to the control of local voters and the process of initiative or referendum.
At bottom, we conclude that the planning process envisioned by the 1989 Act does not alter the existing powers of local sanitary districts to act independently on matters within their legal jurisdiction. (See Waste Management, supra, 7 Cal.4th at p. 490, 28 Cal.Rptr.2d 461, 869 P.2d 440; West Bay Sanitary, supra, 191 Cal.App.3d at p. 1512, 237 Cal.Rptr. 245.)
In light of this conclusion, we need not address the remaining contentions of the appellant districts.[6]
III. DISPOSITION
The judgments are reversed.
JONES, P.J., and HANING, J., concur.
NOTES
[1] All subsequent section references are to the Public Resources Code Unless otherwise indicated.
[2] Section 49520, which grants a five-year period before existing garbage collection contracts would be voided, was not an entirely novel idea. Former section 4272 of the Health and Safety Code (repealed by Stats.1989, ch. 1095, § 20, p. 3810, now Pub. Resources Code, § 49521) contained a similar five-year continuation provision, which this court (Division Five of the First Appellate District) addressed in City of Santa Rosa v. Industrial Waste & Debris Box Rentals, Inc. (1985) 168 Cal.App.3d 1132, 1134-1136, 214 Cal. Rptr. 737.
[3] The county also asserts that, even though section 40059 provides that nothing in the 1989 Act abrogates the districts' traditional authority over waste collection, the county could still exercise its police power to overrule the districts' authority. However, as we have seen, the counties have never previously been permitted to use their police power to control sanitary districts within their county boundaries. As we have concluded, neither does the 1989 Act grant the county such a right.
[4] The preparation of such countywide plans was not an entirely new idea. Former Government Code section 66780 (added by Stats. 1972, ch. 342, § 1, pp. 649-650, amended and renumbered as section 66780.1, by Stat.1982, ch. 1468, § 2, p. 5658, and repealed by Stats.1989, ch. 1095, § 4, p. 3810), had also required each county to prepare a solid waste management plan, and the Legislature had sought to encourage recycling as a component of such plans. (See former Gov. Code, § 66701, added by Stats.1972, ch. 342, § 1, p. 643 and repealed by Stats.1989, ch. 1095, § 3, p. 3810.)
[5] The 1989 Act arose from the recommendations of the Senate Task Force on Waste Management, which was created in 1988. The Senate Task Force, which included representatives from the solid waste industry, government agencies, and the public, issued a report to the Legislature. This report then formed the basis for negotiations and subsequent agreements reached between the Legislature and a separate Governor's Task Force. Thus, a consensus between the Governor's administration and the Legislature was reached, which ultimately resulted in the introduction and passage of Assembly Bill No. 939 in the 1989 Legislature, creating the Integrated Waste Management Act of 1989 (Environmental Affairs Agency, Enrolled Bill Rep., Assem. Bill No. 939, Sept. 21, 1989 (1989-1990 Reg. Sess.)). There is no evidence that these discussions or consensus encompassed any issues that would alter the districts' authority to collect this refuse, and in the absence of such evidence we cannot conclude there was any intent to vary existing law in that respect.
[6] The districts also asserted, for instance, that even if the county had the legal power to assume garbage collection operations within the districts, the county should pay the districts damages for inverse condemnation of the districts' rights to the income stream generated by these operations. The districts also brought other tort claims relating to this subject matter. Since we conclude the county did not have legal authority to assume these district functions, we need not address any of the districts' other contentions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262935/ | 84 Cal.Rptr.2d 329 (1999)
71 Cal.App.4th 1066
Stephen F. WILKINS, et al., Plaintiffs and Appellants,
v.
NATIONAL BROADCASTING COMPANY, INC., et al., Defendants and Respondents.
No. B109530.
Court of Appeal, Second District, Division Three.
April 30, 1999.
Review Denied July 21, 1999.
*331 Neville L. Johnson & Associates, Neville L. Johnson; David A. Elder for Plaintiffs and Appellants Stephen F. Wilkins and Thomas R. Scott.
Anne H. Egerton; Irell & Manella LLP and Henry Shields, Jr., Los Angeles, for Defendants and Respondents National Broadcasting Company, Inc., Jane Pauley, *332 Lea Thompson, San Diego, Jack Cloherty and Sandra Surles.
KITCHING, J.
This case arises from a 1994 Dateline NBC news report that investigated the then-growing practice of charging for services on so-called "toll-free" 800 lines, often without the knowledge of the person billed for the services. Many of the 800 lines provided the caller with access to 900-number type adult entertainment lines. SimTel Communications (SimTel) leased and programmed 800 and 900 lines, and then sold them to investors.
In connection with Dateline NBC's investigation, two National Broadcasting Company, Inc., producers responded to SimTel's national advertisement in USA Today for investors, and arranged to meet with a Sim-Tel salesperson. The producers did not reveal their association with Dateline NBC. They met with SimTel representatives Steve Wilkins (Wilkins) and Thomas Scott (Scott) at a restaurant in Malibu and videotaped the lunch meeting with hidden cameras. Portions of the videotape appeared in a subsequent television broadcast.
Wilkins and Scott asserted claims for intrusion, unlawful recording of confidential communications, fraud, and various other causes of action against National Broadcasing Company, Inc., and its producers (collectively referred to as NBC). The trial court granted summary judgment in favor of NBC. The trial court also denied Wilkins and Scott's motion for a new trial and assessed discovery sanctions against them and their counsel. Wilkins and Scott appeal.
We find as a matter of law that plaintiffs have not raised triable issues of fact regarding their causes of action for intrusion, violation of Penal Code section 632, fraud, public disclosure of private facts, intentional infliction of emotional distress or negligent infliction of emotional distress. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 4, 1994, NBC broadcast a report on its program Dateline NBC entitled
"Hardcore Hustle." The "Hardcore Hustle" report had the first in a three-part Dateline NBC series about the "pay-per-call" industry.
In connection with the preparation of the "Hardcore Hustle" report, Dateline NBC producer Jack Cloherty (Cloherty) called SimTel, a pay-per-call provider, in response to one of its national newspaper advertisements. He spoke with SimTel salesperson Scott. Scott subsequently spoke on the telephone with a woman whom he later learned to be Dateline NBC associate producer Sandra Surles (Surles). Neither Cloherty nor Surles told Scott that they worked for Dateline NBC. Surles told Scott that she and Cloherty were coming to California. They arranged to meet to discuss SimTel's business.
A lunch meeting took place at an outside patio table at a restaurant in Malibu. Cloherty and Surles brought two additional people with them to lunch. Scott brought his supervisor, sales manager Wilkins. Wilkins had not previously spoken with Cloherty or Surles. Neither Scott nor Wilkins asked about the two additional people that Cloherty and Surles brought with them, nor did they inquire if these two persons were interested in purchasing SimTel's products.
At the lunch meeting, Wilkins explained how SimTel conducted business and how its 800- and 900-number products worked. The parties discussed SimTel's products. NBC videotaped the lunch meeting with hidden cameras. NBC later broadcast brief excerpts of the videotape footage in its "Hardcore Hustle" report.
On August 1, 1995, SimTel, Wilkins, and Scott filed a complaint against the National Broadcasting Company, Inc., KNBC-TV, Jane Pauley, Lea Thompson, Jack Cloherty, Cindy Kuhn and Geoffrey's Malibu.[1] They alleged causes of action for (1) physical intrusion on solitude or into private affairs (intrusion); (2) fraud and conspiracy to commit fraud; (3) conspiracy to commit and intentional infliction of emotional distress; (4) *333 negligent infliction of emotional distress; (5) unlawful eavesdropping on or recording of confidential communications (Pen.Code, §§ 632, subd. (a), 634, 637.2); (6) public disclosure of private facts; (7) violation of right of privacy (Cal. Const., art. I, § 1); (8) trade libel and conspiracy to commit the same; (9) conspiracy to interfere with and interference with prospective economic advantage and contractual relations; (10) unfair business practices;[2] and (11) conspiracy to commit and defamation; (12) false light and intention to commit false light.[3] The gravamen of the complaint was that NBC's secret videotape of Wilkins and Scott constituted an unwarranted invasion of their privacy.
On October 4, 1996, Wilkins and Scott moved for summary adjudication on the second cause of action for fraud. On October 4, 1996, NBC moved for summary judgment on Wilkins and Scott's complaint. The trial court denied Wilkins and Scott's motion and granted NBC's motion.[4]
Judgment was entered on November 14, 1996. On December 27, 1996, the trial court denied Wilkins and Scott's motion for a new trial.
Wilkins and Scott timely filed a notice of appeal.
DISCUSSION
1. Summary Judgment Was Properly Granted in Favor of NBC
a. Standard of Review
Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc, § 437c, subd. (c); Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1285, 44 Cal.Rptr.2d 335.) "Review of summary judgment ... `involves pure matters of law,' which we review independently. [Citations.]" (Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 953, 41 Cal. Rptr.2d 573.) In conducting this de novo review, "we will consider only the facts properly before the trial court at the time it ruled on the motion. [Citation.]" (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601, 50 Cal.Rptr.2d 431.)
"As a summary judgment motion raises only issues of law regarding the construction and effect of supporting and opposing papers, this court independently applies the same three-step analysis required of the trial court. We identify issues framed by the pleadings; determine whether the moving party's showing established facts that negate the opponent's claim and justify a judgment in the moving party's favor; and if it does, we finally determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]" (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342, 67 Cal. Rptr.2d 726.)
"Under the current version of the summary judgment statute, a moving defendant need not support his [or her] motion with affirmative evidence negating an essential element of the responding party's case. Instead, the moving defendant may (through factually vague discovery responses or otherwise) point to the absence of evidence to support the plaintiffs case. When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable *334 issue of material fact. If the plaintiff is unable to meet [his or] her burden of proof regarding an essential element of [his or] her case, all other facts are rendered immaterial. [Citations.]" (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482, 50 Cal. Rptr.2d 785; italics in original.)
"`[B]ecause unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable. [Citation.] Therefore, summary judgment is a favored remedy [in such cases]....' [Citations.] Nonetheless, the basic question raised on a defense motion for summary judgment, and on review of such judgment, is the same in a privacy action against media defendants as in other cases: Does the motion record demonstrate the existence of triable issues of fact, or was the defense entitled to judgment as a matter of law?" (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 228, 74 Cal.Rptr.2d 843, 955 P.2d 469.)
b. Tort of Intrusion
Wilkins and Scott contend that NBC invaded their privacy by intrusion into their solitude, seclusion or private affairs by videotaping them at the lunch meeting. We disagree.
Our Supreme Court in Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at pages 230-232, 74 Cal.Rptr.2d 843, 955 P.2d 469, has recently discussed the tort of intrusion as follows: "Of the four privacy torts identified by Prosser, the tort of intrusion into private places, conversations or matter is perhaps the one that best captures the common understanding of an `invasion of privacy.' It encompasses unconsented-to physical intrusion into the home, hospital room or other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying. [Citation.]" It is in the intrusion cases that invasion of privacy is most clearly seen as an affront to individual dignity....
"[T]he action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.... [¶]... To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surroundings, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. [Citations.]"
The Restatement Second of Torts section 652B states that "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."
Furthermore, "[w]hile what is `highly offensive to a reasonable person' suggests a standard upon which a jury would properly be instructed, there is a preliminary determination of `offensiveness' which must be made by the court in discerning the existence of a cause of action for intrusion. [¶] ... [¶] A court determining the existence of `offensiveness' would consider the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded." (Miller v. National Broadcasting Co. (1986) 187 Cal. App.3d 1463, 1483-1484, 232 Cal.Rptr. 668.)
Three cases have applied the California rules to specific facts. They have determined that there is an expectation of privacy in one's home, or in other places when circumstances create an expectation of privacy.
In Dietemann v. Time, Inc. (9th Cir.1971) 449 F.2d 245, two Life magazine reporters surreptitiously gained entrance to Mr. Dietemann's home under the guise of seeking medical treatment. (Id. at p. 246.) They were preparing an article entitled Crackdown on Quackery. (Id. at p. 245.) The reporters, in Mr. Dietemann's den, used hidden camera and audio equipment to record the treatments that were accomplished with the use of "`equipment which could at best be described as gadgets.'" (Id. at p. 246.) The *335 pictures appeared in Life's magazine article. (Id at pp. 245-247.) Dietemann was arrested for practicing medicine without a license. (Id. at p. 246.) Dietemann sued for, inter alia, invasion of privacy. (Id at p. 247.)
The Dietemann court concluded "that clandestine photography of the plaintiff in his den and the recordation and transmission of his conversation without his consent resulting in his emotional distress warrants recovery for invasion of privacy in California." (Dietemann v. Time, Inc., supra, 449 P.2d at p. 248.) The court noted that "[c]oncurrently with the development of privacy law, California had decided a series of cases according plaintiffs relief from unreasonable penetrations of their mental tranquillity based upon the tort of intentional inflection of emotional distress.... [¶] We are convinced that California will `approve the extension of the tort of invasion of privacy to instances of intrusion, whether by physical trespass or not, into spheres from which an ordinary man in plaintiffs position could reasonably expect that the particular defendant should be excluded.' [Citation.]" (Id. at pp. 248-249.)
Dietemann performed his alleged quack healing in his home. He did not advertise his services or charge for them. (Dietemann v. Time, Inc., supra, 449 F.2d at p. 246.) The Dietemann court determined that "[p]laintiff's den was a sphere from which he could reasonably expect to exclude eavesdropping newsmen. He invited two of defendant's employees to the den. One who invites another to his home or office takes a risk that the visitor may not be what he seems, and that the visitor may repeat all he hears and observes when he leaves. But he does not and should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording, or in our modern world, in full living color and hi-fi to the public at large or to any segment of it that the visitor may select." (Id. at p. 249.)
In Miller v. National Broadcasting Co., supra, 187 Cal.App.3d 1463, 232 Cal.Rptr. 668, "an NBC television camera crew entered the apartment of Dave and Brownie Miller in Los Angeles, without their consent, to film the activities of Los Angeles Fire Department paramedics called to the Miller home to administer life-saving techniques to Dave Miller, who had suffered a heart attack in his bedroom. The NBC television camera crew not only filmed the paramedics' attempts to assist Miller, but NBC used the film on its nightly news without obtaining anyone's consent." (Id. at p. 1469, 232 Cal.Rptr. 668.) Additionally, "NBC later used portions of the film in a commercial advertising an NBC `mini-documentary' about the paramedics' work." (Ibid.) Brownie Miller sued, inter alia, for invasion of privacy. (Id at p. 1470, 232 Cal.Rptr. 668.)
The Miller court determined that "reasonable people could regard the NBC camera crew's intrusion into Dave Miller's bedroom at a time of vulnerability and confusion occasioned by his seizure as `highly offensive' conduct, thus meeting the limitation on a privacy cause of action Restatement of Torts, section 652B imposes." (Miller v. National Broadcasting Co., supra, 187 Cal.App.3d at p. 1484, 232 Cal.Rptr. 668.) The court concluded that "the NBC camera crew, the uninvited media guests, not only invaded the Millers' bedroom without Dave Miller's consent, they also invaded the home and [the] privacy of [the] plaintiff[`s] wife...." (Id at p. 1486, 232 Cal.Rptr. 668.) Furthermore, Miller concluded NBC had no right to be in any part of Brownie Miller's home without her consent. (Ibid.)
In Shulman v. Group W Productions, Inc., supra, 18 Cal.4th 200, 74 Cal.Rptr.2d 843, 955 P.2d 469, a flight nurse employed by a helicopter rescue company wore a microphone during her evaluation and treatment of the Shulmans, two car accident victims. (Id. at p. 210, 74 Cal.Rptr.2d 843, 955 P.2d 469.) The nurse also permitted a television photographer to accompany her to the scene of the accident and to photograph the Shulmans, both at the scene of the accident and in the rescue helicopter as it transported them to the hospital. (Id. at pp. 210-211, 74 Cal. Rptr.2d 843, 955 P.2d 469.) The microphone recorded the nurse's conversations with Mrs. Shulman, and the television production company later included those recordings in its broadcast. (Ibid.)
*336 The Shulman court held that the cameraman's "mere presence at the accident scene and filming of the events occurring there [could not] be deemed either a physical or sensory intrusion on plaintiffs seclusion[, because the Shulmans] had no right of ownership or possession of the property where the rescue took place [an interstate highway], nor any actual control of the premises." (Shulman v. Group W Productions, supra, 18 Cal.4th at p. 232, 74 Cal.Rptr.2d 843, 955 P.2d 469.) The court further concluded, however, that the plaintiffs might be entitled to recover for intrusion based on (1) the videotaping by the television camera operator "in the interior of the rescue helicopter, which served as ambulance," and (2) the audiotaping of the conversations between Mrs. Schulman and the flight nurse "and other medical rescuers at the accident scene." (Id. at pp. 232-233, 74 Cal.Rptr.2d 843, 955 P.2d 469.) The court noted that "[a] patient's conversation with a provider of medical care in the course of treatment, including emergency treatment, carries a traditional and legally well-established expectation of privacy." (Id. at p. 234, 74 Cal. Rptr.2d 843, 955 P.2d 469.)
(1) There Was No Intrusion Into a Private Place, Conversation or Matter
Wilkins and Scott were secretly videotaped while they conducted a business meeting on the outdoor patio of a public restaurant. They met with Cloherty and Surles, and two other individuals, to discuss SimTel's products. Wilkins spoke freely about the programs, even with the addition of these two "strangers," and while waiters stood at the table. The sales pitch was conducted in the middle of a crowded patio within close proximity to other tables. The location was not secluded and neither Wilkins nor Scott conducted themselves as though they were dispensing private information. Wilkins and Scott admitted in their depositions that they freely provided the same information about SimTel's products to hundreds of other potential investors, that they never asked about the two additional people at the table, and that Cloherty and Surles could have brought as many people to lunch as they wished. There was no physical or sensory intrusion into their privacy. Wilkins and Scott were not seated in a private dining room of a restaurant. Rather, they discussed business matters on the open patio of a public restaurant with four strangers. There was no entry by NBC into their homes, or even their offices (where Scott frequently entertained prospective clients). Nor did NBC intrude into the personal lives, intimate relationships, or any other private affairs of Wilkins or Scott. Instead, NBC photographed the two men in a public place and taped their conversations which were about business, not personal matters. There was no intrusion into a private place, conversation or matter. (Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at p. 231, 74 Cal.Rptr.2d 843, 955 P.2d 469.)
(2) NBC's Actions Were Not Highly Offensive to a Reasonable Person
For the reasons which we have already discussed, we find as a matter of law that NBC's actions were not highly offensive to a reasonable person. (Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at p. 231, 74 Cal.Rptr.2d 843, 955 P.2d 469.)
(3) Wilkins and Scott Had No Objectively Reasonable Expectation of Seclusion or Solitude in the Public Restaurant.
Whether Wilkins or Scott had a reasonable expectation of privacy in their business discussion with Cloherty, Surles, and the two strangers, must be judged by an objective standard. (Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at p. 232, 74 Cal.Rptr.2d 843, 955 P.2d 469.) Pursuant to our review of the videotape and consideration of the admissions of Wilkins and Scott, we conclude that Wilkins and Scott had no objective expectation of privacy in their business lunch meeting.
Wilkins and Scott cannot maintain an action for invasion of privacy, to wit, the tort of intrusion.
c. Penal Code Section 632
Wilkins and Scott contend that by videotaping the lunch meeting at the restaurant, *337 the Dateline NBC producers violated the California Penal Code's prohibition against eavesdropping on or recording confidential communications. We disagree.
Penal Code section 632 bars the intentional recording of a "confidential communication" without the consent of all parties to the communication.[5] Penal Code section 637.2, subdivision (a) permits a civil action against a person who violates the statute. It is an essential element of a Penal Code section 632, subdivision (a) claim that Scott and Wilkins prove that the conversation that was taped was "confidential." Penal Code section 632, subdivision (c) defines the term "confidential communication" as a "communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering ... or in any other circumstances in which the parties to the communication may reasonably expect that the communication may be overheard or recorded."
"Application of the statutory definition of `confidential communication' turns on the reasonable expectations of the parties judged by an objective standard and not by the subjective assumptions of the parties." (O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, 248, 273 Cal.Rptr. 674.) "The test of confidentiality is objective." (Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 929, 33 Cal.Rptr.2d 766.)
Wilkins and Scott argue that the conversation at the lunch meeting was confidential because they assumed the communications would not be discussed with any other parties. However, Wilkins testified in his deposition that he did not say anything he thought was a secret, that he did not say anything he had not said to another potential investor, and that he had not told anyone that the information he provided about Sim-Tel was private and should not be passed on to others. Wilkins did not tell potential investors that they could not pass on this information.
On the facts of this case, Wilkins and Scott cannot make the showing required under O'Laskey and Coulter. Cloherty and Surles were virtual strangers to Wilkins and Scott, and the two people who accompanied them were total strangers, about whom Wilkins and Scott never inquired. Moreover, the topic of the lunch was SimTel's business and Wilkins gave a sales pitch he had given to many others. Waiters frequently came to the table, but Wilkins did not acknowledge them, pause in his sales pitch, or even lower his voice. Indeed, Wilkins admitted at his deposition that the sales discussion contained no secrets. Scott admitted at his deposition that Cloherty and Surles could have brought with them to lunch as many people as they liked. No trier of fact could find, judged by an objective standard, that Wilkins and Scott reasonably expected that their conversation would not be divulged to anyone else. Penal Code section 632 prohibits the recording only of "confidential" conversations. This conversation was not confidential under the terms of the statute and O'Laskey and Coulter. Accordingly, videotaping the lunch meeting did not violate Penal Code section 632.
d. Fraud
Scott and Wilkins contend that the NBC Dateline producers committed fraud under three alternative theories. First, they argue that Cloherty and Surles made affirmative misrepresentations to them on which they relied as follows: Cloherty's last name was Fullerty, Cloherty and Surles were married to each other, Cloherty and Surles were potential investors, and the two people they brought to lunch were their friends. Second, they contend Cloherty and Surles made material omissions and were legally obligated to disclose that they were journalists, that SimTel *338 was the subject of an investigation, and that NBC was videotaping them at the lunch meeting. Third, they argue NBC committed deceptive acts in connection with a contract and is liable to Scott and Wilkins under Civil Code section 1572.
(1) Alleged Affirmative MisrepresentationsNo Justifiable Reliance.
Under California law, a cause of action for fraud requires the plaintiff to prove (a) a knowingly false misrepresentation by the defendant, (b) made with the intent to deceive or to induce reliance by the plaintiff, (c) justifiable reliance by the plaintiff, and (d) resulting damages. (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816, 52 Cal.Rptr.2d 650.)
Even if Wilkins and Scott had evidence of misrepresentations made by the producers of NBC Dateline, they are unable to prove they relied to their detriment on such misrepresentations. Even assuming Wilkins and Scott believed Cloherty and Surles were potential investors, they were not induced to provide any information about SimTel because of any supposed representations by NBC. Wilkins admitted in his deposition that he would have answered Cloherty and Surles's questions even if he had known they were reporters, and that "the gist of what [he] was saying would have been exactly the same," but that he "might have worded" some of his remarks a little differently. Scott admitted he would not have done anything differently if he had known Cloherty's true name and that he and Surles were not married. Scott admitted at his deposition that it was his job to dispense information packets about SimTel freely upon request. Wilkins testified that SimTel entered into contracts with only about 3 percent of people who made actual inquiries. Ninety-seven percent of those who called SimTel and received information about its business never leased an 800 line. Scott admitted that Cloherty and Surles could have brought as many people to the meeting as they wished. Wilkins and Scott did not ask Cloherty and Surles to identify their "friends" and they did not care whether they were interested in SimTel's business.
After the depositions, Wilkins and Scott submitted declarations in opposition to the motion for summary judgment in which they stated that Cloherty and Surles had "indicated they were on vacation in California and a married couple" and that they "never would have had a conversation with the defendants if [they] had known they were spies for NBC...." California courts, however, do not permit a party to defeat summary judgment by contradicting in a declaration that party's previous deposition testimony. On a motion for summary judgment, "the credibility of the [deposition] admissions are valued so highly that the controverting affidavits may be disregarded as irrelevant, inadmissible or evasive." (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382, 121 Cal.Rptr. 768; see also DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22, 112 Cal.Rptr. 786, 520 P.2d 10.)
(2) Alleged Material Omissions Duty to Disclose
Wilkins and Scott contend that NBC was required to advise them they were the subject of an investigation, that the people they were meeting were really journalists, that the "investors" they were meeting had hidden cameras, that the two "friends" were associated with the investigation, and that the meeting would be broadcast as part of a television news magazine We disagree.
"There are `four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.]'" Putting aside a fiduciary relationship, "[e]ach of the other three circumstances in which nondisclosure may be actionable presupposes the existence of some other relationship between the plaintiff and defendant in which a duty to disclose *339 can arise.... [¶] ... [S]uch a relationship can only come into being as a result of some sort of transaction between the parties.... Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement. [Citation.] All of these relationships are created by transactions between parties from which a duty to disclose facts material to the transaction arises under certain circumstances." (Li-Mandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337, 60 Cal.Rptr.2d 539, italics & fn. omitted.)
In Deteresa v. American Broadcasting Companies, Inc. (9th Cir.1997) 121 F.3d 460, a case analogous to the case at bar, the Ninth Circuit relied on the LiMandri case to affirm a judgment for the American Broadcasting Company. In Deteresa, plaintiff filed a lawsuit against the American Broadcasting Company and producer Anthony Radziwill for, inter alia, fraud and conspiracy to commit fraud. (Id. at p. 462.) Radziwill attempted to convince plaintiff, a flight attendant on the flight O.J. Simpson took from Los Angeles to Chicago, to appear on a television show to discuss the flight. (Ibid) Plaintiff and Radziwill talked, but she said no. The next day, Radziwill again attempted to arrange for plaintiff to appear on television. (Ibid) When plaintiff again said no, Radziwill revealed that he had audiotaped and videotaped their conversation from the previous day.
Plaintiff's claim alleged "that ABC and Radziwill committed fraud and conspiracy to commit fraud by failing to disclose that Radziwill was audiotaping and videotaping her." (Deteresa v. American Broadcasting Companies, Inc., supra, 121 F.3d at p. 467.)
The Ninth Circuit stated: "The district court concluded that ABC was entitled to summary judgment on Deteresa's fraud claim because she presented no evidence that she and Radziwill shared the requisite relationship for Radziwill to have a duty to disclose that he was taping her. We agree. Deteresa has presented no evidence that she and Radziwill shared any such relationship." (Deteresa v. American Broadcasting Companies, Inc., supra, 121 F.3d at p. 467.)
Similarly, Wilkins and Scott have presented no evidence that they and Cloherty and Surles shared the requisite relationship which would impose upon the NBC Dateline producers a duty to disclose the use of hidden cameras. (Deteresa v. American Broadcasting Companies, Inc., supra, 121 F.3d at p. 467; LiMandri v. Judkins, supra, 52 Cal. App.4th at pp. 336-337, 60 Cal.Rptr.2d 539.) In addition, the videotape and the admissions of Wilkins and Scott show that they willingly presented their business pitch to anyone who was interested. Thus, the fact that Cloherty and Surles were reporters, that they had hidden cameras, that the identity of the two "friends" was not disclosed, and that the meeting would be broadcast were not "facts material to the transaction." (See id. at p. 337, 60 Cal.Rptr.2d 539.)
(3) Civil Code Section 1572
Wilkins and Scott also rely on Civil Code section 1572. However, that code section applies only to fraud "committed by a party to the contract ... with intent to deceive another party thereto, or to induce him to enter into the contract." (Italics added.) Since there was no contract between Wilkins and Scott and NBC, they have no cause of action under Civil Code section 1572.
e. Public Disclosure of Private Facts
Scott and Wilkins contend that their "occupations ... as salesmen for SimTel," their names, likenesses and voices were private facts that were not matters of public concern. We disagree.
Our Supreme Court in Shulman has set forth the requirements for the tort of public disclosure. They are: "`(1) public disclosure[,] (2) of a private fact[,] (3) which would be offensive and objectionable to the reasonable person[,] and (4) which is not of legitimate public concern.' [Citations.]" (Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at p. 214, 74 Cal.Rptr.2d 843, 955 P.2d 469.)
"The element critical to [a public disclosure of private facts] case is the presence *340 or absence of legitimate public interest, i.e., newsworthiness, in the facts disclosed. After reviewing the decisional law regarding newsworthiness, we conclude, inter alia, that lack of newsworthiness is an element of the `private facts' tort, making newsworthiness a complete bar to common law liability. We further conclude that the analysis of newsworthiness inevitably involves accommodating conflicting interests in personal privacy and in press freedom as guaranteed by the First Amendment to the United States Constitution, and that in the circumstances of this casewhere the facts disclosed about a private person involuntarily caught up in events of public interest bear a logical relationship to the newsworthy subject of the broadcast and are not intrusive in great disproportion to their relevancethe broadcast was of legitimate public concern, barring liability under the private facts tort. [¶] ... [¶] [T]he dissemination of truthful, newsworthy material is not actionable as a publication of private facts." (Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at pp. 214-215, 74 Cal.Rptr.2d 843, 955 P.2d 469.)
In the Shulman case, the court stated "the subject matter of the broadcast as a whole was of legitimate public concern. Automobile accidents are by their nature of interest to that great portion of the public that travels frequently by automobile. The rescue and medical treatment of accident victims is also of legitimate concern to much of the public, involving as it does a critical service that any member of the public may someday need. The story of [the accident victim's] difficult extrication from the crushed car, the medical attention given her at the scene, and her evacuation by helicopter was of particular interest because it highlighted some of the challenges facing emergency workers dealing with serious accidents." (Ibid.)
The court stated the more difficult question was "whether [the victim's] appearance and words as she was extricated from the overturned car, placed in the helicopter and transported to the hospital were of legitimate public concern" and concluded that "the disputed material was newsworthy as a matter of law." (Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at p. 228, 74 Cal. Rptr.2d 843, 955 P.2d 469.) The court determined mined that the flight nurse's work was shown as demanding and important, and the emergency care required "not only medical knowledge, concentration and courage, but an ability to talk and listen to severely traumatized patients. One of the challenges [the flight nurse] face[d] in assisting [the accident victim was] the confusion, pain and fear that [the accident victim] understandably [felt] in the aftermath of the accident. For that reason the broadcast video depicting [the accident victim's] injured physical state ... and audio showing her disorientation and despair were substantially relevant to the segment's newsworthy subject matter." (Id. at p. 229, 74 Cal.Rptr.2d 843, 955 P.2d 469.)
In the Shulman case, the plaintiffs argued that showing the victim's "`intimate private, medical facts and her suffering was not necessary to enable the public to understand the significance of the accident or the rescue as a public event.'" (Shulman, supra, 18 Cal.4th at p. 229, 74 Cal.Rptr.2d 843, 955 P.2d 469, italics omitted.) The court stated that "[t]he standard ... is not necessity. That the broadcast could have been edited to exclude some of [the victim's] words and images and still excite a minimum degree of viewer interest is not determinative. Nor is the possibility that the members of [the Supreme Court] or another court, or a jury, might find a differently edited broadcast more to their taste or even more interesting. The courts do not, and constitutionally could not, sit as superior editors of the press." (Ibid.)
In addition, the challenged material "did not constitute a `morbid and sensational prying into private lives for its own sake.'" (Shulman, supra, 18 Cal.4th at p. 229, 74 Cal.Rptr.2d 843, 955 P.2d 469, italics added.)
As explained in Shulman, supra, 18 Cal.4th at page 230, 74 Cal.Rptr.2d 843, 955 P.2d 469: "It is difficult to see how the subject broadcast could have been edited to avoid completely any possible identification without severely undercutting its legitimate descriptive and narrative impact. As broadcast, the segment included neither [the victim's] full name nor direct display of her face. She was nonetheless arguably identifiable by her first name (used in recorded *341 dialogue), her voice her general appearance and the recounted circumstances of the accident (which, as noted, had previously been published, with [the victim's] full name and city of residence, in a newspaper). In a video documentary of this type, however, the use of that degree of truthful detail would seem not only relevant, but essential to the narrative." (Id. at p. 230, 74 Cal.Rptr.2d 843, 955 P.2d 469, fn. omitted.)
In our case we consider whether the alleged private facts Wilkins and Scott complained ofthe use of their names, likenesses, and voices, and the fact they worked at SimTelwas of a legitimate public interest. The broadcast investigated the growing practice of charging for so-called "toll-free" 800 lines, often without the knowledge of the person billed for the services. Many of the 800 lines provided the caller with access to 900-number type adult entertainment lines without the caller's knowledge. SimTel leased and programmed 800 and 900 lines, and then sold them to investors. The first part of the Dateline broadcast provided a description of the firms and the persons who provided these phone lines and explained how the operation worked. The broadcast demonstrated that legislators, regulators, and law enforcement persons expressed grave concerns about the 800-number loophole in the statute regulating 900 numbers, and the ability of pay-per-call providers like SimTel to profit from calls made by unsuspecting people believing that they were free.
We find the use of Wilkins and Scott's names, likenesses, voices, and occupations were of legitimate public concern and did not constitute a "morbid and sensational prying into private lives for its own sake." (Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at p. 229, 74 Cal.Rptr.2d 843, 955 P.2d 469.)
Information about an enterprise which potentially affected unsuspecting callers was of legitimate public interest. The use of Wilkins and Scott's names, likenesses, voices and occupations added authenticity to the broadcast. It showed who was making the presentation, what they were saying, and how they were saying it. The broadcast showed the verbal and non-verbal communication of the salesmen as they were making their presentation. It turned an abstract story into something the public could more readily understand by making it more concrete.
Here, the broadcast material was not so "lurid and sensational in emotional tone, or so intensely personal in content, as to make its intrusiveness disproportionate to its relevance." (Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at p. 229, 74 Cal.Rptr.2d 843, 955 P.2d 469.) It served a "legitimate descriptive and narrative" purpose. We find the disputed material newsworthy as a matter of law. Thus, Wilkins and Scott cannot recover for the tort of public disclosure of private facts.
f. Intentional Infliction of Emotional Distress
"`The elements of a prima facie case for the tort of intentional infliction of emotional distress [are] ... as follows: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard [for] the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct."' [Citation.]" (Miller v. National Broadcasting Co., supra, 187 Cal.App.3d at p. 1487, 232 Cal.Rptr. 668.)
We have already determined that the act of filming a business lunch in a public place constituted neither an intrusion on Wilkins and Scott's privacy, a violation of Penal Code section 632, fraud, or public disclosure of private facts. Based on that determination and the facts of this case, as a matter of law, we find this conduct is not so extreme and outrageous "as to exceed all bounds of that usually tolerated in a civilized society." (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883, 257 Cal.Rptr. 338.) This tort claim must also fail.
g. Negligent Infliction of Emotional Distress
Wilkins and Scott's negligence claim is based on the premise that NBC had a duty *342 to tell them they were being filmed. We have already determined that Wilkins and Scott have not shown that any legal duty to disclose ever arose. As a matter of law, and in the absence of any duty, this claim must fail.
2. New Trial Motion and Discovery Sanctions
Without any legal authority or argument, Wilkins and Scott contend the trial court should have granted their new trial motion based on newly discovered evidence and should not have granted discovery sanctions for refusal to answer questions or appear at depositions.
These arguments have been waived. "`In a challenge to a judgment, it is incumbent upon an appellant to present argument and authority on each point made. Arguments not presented will generally not receive consideration.' [Citation.]" (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278, 268 Cal.Rptr. 83.)
DISPOSITION
Judgment is affirmed. NBC is awarded costs on appeal.
CROSKEY, Acting P.J., and ALDRICH, J., concur.
NOTES
[1] SimTel dismissed all of its claims with prejudice on or about July 16, 1996. Wilkins and Scott dismissed Geoffrey's from the complaint on May 23, 1996.
[2] This cause of action was never litigated by Scott and Wilkins.
[3] The causes of action for violation of right of privacy (7th cause of action), conspiracy to commit and defamation (11th cause of action), and false light and intention to commit false light (12th cause of action) were dismissed on September 19, 1996. The causes of action for trade libel and conspiracy to commit same (8th cause of action) and conspiracy to interfere with and interference with prospective economic advantage (9th cause of action) were solely SimTel's causes of action.
[4] In a minute order the trial court stated, in relevant part:
"Assuming that plaintiffs are correct in their contention that the fact that a meeting is at a restaurant does not, as a matter of law, preclude a reasonable expectation of privacy, the videotapes show that plaintiffs could not entertain any such reasonable expectation in this case. They made no effort to obtain the affiliation or reason for attendance of two of the persons present and continued to speak freely while employees of the restaurant were at the table and could hear what was said. This defect is fatal to all of the claims asserted by plaintiffs in their complaint."
[5] Penal Code section 632, subdivision (a) provides that: "Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among [such] parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding ... ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332352/ | 274 U.S. 387 (1927)
FORT SMITH LIGHT AND TRACTION COMPANY
v.
BOARD OF IMPROVEMENT OF PAVING DISTRICT NO. 16 OF THE CITY OF FORT SMITH.
No. 269.
Supreme Court of United States.
Submitted March 17, 1927.
Decided May 16, 1927.
ERROR TO THE SUPREME COURT OF THE STATE OF ARKANSAS.
*388 Messrs. Joseph M. Hill, Henry L. Fitzhugh, and R.M. Campbell for plaintiff in error.
Messrs. John P. Woods and Harry P. Daily for defendant in error.
MR. JUSTICE STONE delivered the opinion of the Court.
Defendant in error, a board of improvement incorporated by the State of Arkansas, brought suit in the Circuit Court of Sebastian County, to recover the cost of paving a part of certain streets in Fort Smith, Arkansas, occupied by the street railway of plaintiff in error. Plaintiff in error originally operated its railway under a franchise requiring it to do similar paving and limiting it to a maximum fare of five cents per passenger. Availing of the permission granted by No. 571 of the Acts of Arkansas, 1919, amended by No. 124 of 1921, the company had surrendered in that year its franchise for an indeterminate permit to operate its road. The permit did not fix a maximum fare or require the railway to pave *389 parts of the streets occupied by its tracks, but subjected it to the regulatory powers of a utilities commission.
In 1923 the legislature passed a statute, Acts of Arkansas, 1923, No. 680, requiring plaintiff in error under certain conditions which have occurred, to pave the streets between its rails to the end of the ties. In the event of its failure to do so, the improvement district was authorized to do the paving at the expense of the railway. The act is in form a general statute, but by reason of provisions making it applicable to street railways operating under indeterminate permits in cities of the first class other than in Miller County, it in fact applied to plaintiff in error alone.
Plaintiff in error having failed to do the required paving, the board completed the improvement and brought the present suit. The company by answer set up that the statutory requirements of paving impaired the obligation of its contract with the state, in violation of Art. I, § 10 of the Federal Constitution, and deprived it of property without due process of law and denied the equal protection of the laws guaranteed by the Fourteenth Amendment. The judgment of the circuit court for defendant in error was affirmed by the Supreme Court of the state. 169 Ark. 690. The case is here on writ of error. Jud. Code, § 237, as amended.
It is urged that the acceptance of the indeterminate permit under the Act of 1919 constituted a contract between the railway and the state by which the state bound itself not to impose any added burdens except in the exercise of its police power; that the requirement for street paving was not an exercise of the police power and was therefore a forbidden impairment of the contract. This contention assumes that the permit exempted the railway from paving costs. But no such exemption appears in the permit. Provisions of this character are not lightly to be read into a contract between a state and a *390 public utility. Public Service Co. v. Durham, 261 U.S. 149, 152. Even granting the assumption, the case of Fair Haven R.R. v. New Haven, 203 U.S. 379, is a complete answer. There this Court held that a general law imposing on a street railway the duty to repair so much of the streets as was occupied by its tracks was an exercise of the power reserved to the state to alter, amend or repeal the original charter and was not an impairment of the obligation of contract. That case controls here since § 6, Art. XII of the Constitution of Arkansas, in force at the time when plaintiff relinquished its franchise and accepted the permit, reserved to the legislature the power to alter any corporate charter. See also Sioux City Street Ry. v. Sioux City, 138 U.S. 98.
Assuming the exercise of the power of amendment is subject to the limitation of the due process clause of the Fourteenth Amendment, Shields v. Ohio, 95 U.S. 319, 324; Stanislaus County v. San Joaquin Co., 192 U.S. 201, 213, that limitation, as was held in Fair Haven R.R. v. New Haven, supra, is not transcended by a requirement which might have been included in the original charter and which has some reasonable relation to the object of the grant and to the duty of the state to maintain its highways. Cf. Southern Wisconsin Ry. v. Madison, 240 U.S. 457; Great Northern Ry. v. Clara City, 246 U.S. 434.
It is said that the act in its application is confiscatory because plaintiff in error must bear this expense although it is losing money in the operation of its road at the rates for service now prevailing. But the imposition of burdens, otherwise legitimate, upon a public service company cannot be held invalid as confiscatory because the permitted rate does not allow an adequate return. Woodhaven Gas Light Co. v. Public Service Commission, 269 U.S. 244; Milwaukee Elec. Ry. v. Milwaukee, 252 U.S. *391 100, 105. Whether the rate is confiscatory is not before us.
It is also contended that as there are other street railways in the state, some operating under franchises and one under an indeterminate permit, which are not required to do street paving, the challenged act denies the equal protection of the laws. The Fourteenth Amendment does not prohibit legislation merely because it is special, or limited in its application to a particular geographical or political subdivision of the state. See Missouri v. Lewis, 101 U.S. 22, 31; Missouri Ry. v. Mackey, 127 U.S. 205, 209; Mason v. Missouri, 179 U.S. 328; Mallett v. North Carolina, 181 U.S. 589; Hayes v. Missouri, 120 U.S. 68; cf. Walston v. Nevin, 128 U.S. 578; Williams v. Eggleston, 170 U.S. 304; Condon v. Maloney, 108 Tenn. 82; Owen v. Sioux City, 91 Ia. 190; Strange v. Board, 173 Ind. 640; Tenement House Dept. v. Moeschen, 179 N.Y. 325; People ex rel. Armstrong v. Worden, 183 N.Y. 223; State ex rel. Wixon v. Cleveland, 164 Wis. 189; Davis v. State, 68 Ala. 58; but cf. State ex rel. Johnson v. Chicago, Burlington & Quincy R.R., 195 Mo. 228. If a state may delegate to a municipality power to require paving by a street railway located within its limits, Public Service Co. v. Durham, supra, we perceive no reason why it may not, by a legislative act, make a like requirement limited to a single municipality.
Nor need we cite authority for the proposition that the Fourteenth Amendment does not require the uniform application of legislation to objects that are different, where those differences may be made the rational basis of legislative discrimination. There is nothing in the record now before us to show that there is any similarity of plaintiff's road to others in the state with respect to many considerations which might reasonably determine which roads should be required to do street paving. Differences *392 in location, use and physical character of the streets, the extent to which paving has been completed and local methods of assessing benefits for street paving, are some of the considerations which might reasonably move the legislature to require street paving of one road or several and not of others. Cf. Metropolitan Street Ry. v. New York, 199 U.S. 1, 46, 47; N.Y., N.H. & H.R.R. v. New York, 165 U.S. 628; Erb v. Morasch, 177 U.S. 584, 586; Savannah, Thunderbolt Ry. v. Savannah, 198 U.S. 392. We may not assume in the absence of proof that such differences do not exist. Erb v. Morasch, supra; Middleton v. Texas Power & Light Co., 249 U.S. 152, 158; Swiss Oil Corp. v. Shanks, 273 U.S. 407.
There are no facts disclosed by the record which would enable us to say that the legislative action with which we are here concerned was necessarily arbitrary or unreasonable or justify us in overruling the judgment of the state court that it was reasonable. Public Service Co. v. Durham, supra, 154.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332354/ | 521 S.E.2d 575 (1999)
271 Ga. 485
ADAMS
v.
The STATE.
No. S99A1091.
Supreme Court of Georgia.
September 20, 1999.
*576 Stephen F. Lanier, Rome, for appellant.
Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, Thurbert E. Baker, Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellee.
CARLEY, Justice.
In connection with the homicide of Ricky Wyatt, the grand jury returned a multi-count joint indictment against Lashay Adams (Appellant), Paul Ray and Christopher Thompson. Thompson pled guilty to voluntary manslaughter, and he testified for the State at the joint trial of Appellant and Ray. The jury acquitted Ray, but found Appellant guilty of all offenses. The trial court entered judgments of conviction against Appellant and sentenced her only for malice murder, *577 attempted armed robbery, and burglary.[1] Thompson subsequently withdrew his guilty plea, and a jury found him guilty of felony murder, burglary, and two firearm possession offenses. In Thompson v. State, 271 Ga. 105, 519 S.E.2d 434 (1999), however, we reversed certain of his convictions because of the insufficiency of the evidence of his participation in a burglary, as well as the trial court's erroneous recharge to the jury on the elements of the crime of burglary.
1. Construed most favorably to the State, the evidence shows that, after a visit to Wyatt's house, Appellant stated her intention to return and her desire to kill him. A few hours later, Appellant, Ray and Thompson made plans to rob Wyatt and traveled to his house in Ray's truck. Appellant entered the house alone and remained there with Wyatt's permission. Either Ray or Thompson then went to the house, and gunshots were fired. When all three returned to the truck, Appellant stated that Wyatt should not have hit her and that he got what he had coming. The victim was found lying in the doorway of his home, having died from wounds inflicted by a revolver later recovered from Ray's truck.
Appellant contends that there was no more evidence of her guilt of burglary than there was of Thompson's. Thompson v. State, supra at 107-108(2), 519 S.E.2d 434. At her trial, however, she herself testified that, prior to the shooting, Ray entered Wyatt's house without authority. Thus, the evidence is sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt that Ray committed a burglary and that Appellant was a party to that crime. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Graham v. State, 197 Ga.App. 102, 397 S.E.2d 600 (1990); Coursey v. State, 196 Ga.App. 135(1), 395 S.E.2d 574 (1990). As to the remaining offenses, "it was for the jury to assess the credibility of the witnesses, resolve any conflicts in the evidence, and come to a determination of the facts. [Cits.]" Hodnett v. State, 269 Ga. 115, 116(1), 498 S.E.2d 737 (1998). A rational trier of fact could have found Appellant guilty beyond a reasonable doubt of malice murder and attempted armed robbery. Jackson v. Virginia, supra; Hodnett v. State, supra.
2. Appellant enumerates as error the trial court's denial of her pre-trial motion to sever her trial from Ray's and Thompson's. She argues that severance was necessary to avoid the prejudice which resulted from the introduction of the antagonistic pre-trial statements of her co-defendants and from the inadmissibility of their prior convictions to impeach their testimony at a joint trial.
The issue is moot insofar as Appellant's motion sought a severance of her trial from Thompson's, since he was ultimately tried separately. See Pruitt v. State, 217 Ga.App. 681, 683(2), 458 S.E.2d 696 (1995). With regard to Ray, Appellant is unable to show any prejudice from the admission of his statement, because he gave testimony consistent with his statement and was subject to cross-examination by Appellant's counsel. Kennedy v. State, 253 Ga. 132, 134(2), 317 S.E.2d 822 (1984). See also Durham v. State, 240 Ga. 203(1), 240 S.E.2d 14 (1977).
No prejudice amounting to a denial of appellant's due process protection is demonstrated by the circumstance that an accomplice, who is subject to cross-examination, takes the stand and blames the appellant or attributes to him a greater degree of culpability than the accomplice himself bears. [Cits.]
Chandler v. State, 213 Ga.App. 46, 47(1), 443 S.E.2d 679 (1994).
A trial court properly exercises its discretion when it refuses to grant a pre-trial severance motion on the ground of unsubstantiated assertions that a co-defendant is subject to impeachment by prior convictions. *578 James v. State, 191 Ga.App. 723, 724, 382 S.E.2d 658 (1989). Moreover, Appellant does not contend that she would have used Ray's unrelated prior convictions for proving bias or any relevant purpose other than a mere general attack on his credibility. Thomas v. State, 199 Ga.App. 586, 590-591(5), 405 S.E.2d 512 (1991). Accordingly, the trial court did not abuse its discretion in denying the motion to sever.
3. Appellant urges that the trial court erred in denying her motion for new trial, because the State violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) by failing to disclose Ray's prior criminal record.
It is undisputed that Appellant's counsel knew that both Ray and Thompson had lengthy criminal records, including felony convictions. Indeed, citing OCGA § 35-3-34, Appellant specifically requested those criminal history records of Ray and Thompson which are kept by the Georgia Crime Information Center (GCIC). Appellant cites no authority for the proposition that, other than by complying with OCGA § 35-3-34, the State has an obligation to disclose criminal records to a defendant. Appellant asserts, however, that the district attorney's files contained the reports on Ray's criminal history and that she relied on the prosecutor's statement that she had photocopied her entire file for each defendant. At the hearing on the motion for new trial, however, the prosecuting attorney testified that she informed Appellant's attorney that she was not allowed to provide the criminal histories of other defendants, but that he could obtain those records himself and that her file was open for his review. Thus, the trial court was authorized to find that the State's attorney did not mislead Appellant's defense counsel. Prior to trial, Appellant's lawyer did obtain a copy of the GCIC report, which indicated that Ray was a "multistate offender." The full GCIC report shows that a criminal history record was available from California, although Appellant's attorney denied knowing in which state Ray had a record. It is undisputed that the assistant district attorney made her entire files available for inspection by defense counsel.
There is a distinction between suppression of exculpatory evidence and a failure to disclose such evidence. "[W]e have indicated that the holding of the United States Supreme Court in Brady does not extend so far as to require the prosecution to turn over to the defense criminal records of state's witnesses. [Cit.]" Carter v. State, 252 Ga. 502, 506(6), 315 S.E.2d 646 (1984). Here, Ray was not ever a witness for the State, but a co-defendant who chose to testify in his own defense. It is clear that Appellant knew of the existence of the criminal history and obtained the GCIC report herself pursuant to OCGA § 35-3-34(a)(2). See Bacon v. State, 207 Ga.App. 39, 427 S.E.2d 32 (1993). Moreover, because that information appeared in the State's file and the prosecution had an "open file policy" in this case, Appellant had constructive knowledge of the existence of Ray's criminal history. Lawson v. State, 224 Ga.App. 645, 648(3)(c), 481 S.E.2d 856 (1997). See also Smith v. State, 269 Ga. 72, 74(3), 495 S.E.2d 280 (1998); Crowe v. State, 265 Ga. 582, 587(7), 458 S.E.2d 799 (1995); Wiley v. State, 250 Ga. 343, 351(5), 296 S.E.2d 714 (1982).
The record contains no indication that Appellant was unable to ascertain the details of Ray's out-of-state criminal history. The State itself did not possess copies of any California convictions. Brady "`does not impose an affirmative obligation on the prosecution to seek out information for the defense, even if such information is more accessible to the prosecution than to the defense.'" Sears v. State, 268 Ga. 759, 762(3), 493 S.E.2d 180 (1997).
Accordingly, the trial court did not abuse its discretion in denying Appellant's motion for new trial. See Long v. State, 237 Ga. 110, 111, 227 S.E.2d 22 (1976).
4. Appellant contends that the charge on burglary was erroneous for the same reasons as the recharge in Thompson v. State, supra at 107(1), 519 S.E.2d 434. However, in this case, the trial court did not give the charge held to be error in Thompson. Instead, the trial court used only the language of the applicable statute and the suggested pattern jury instruction on burglary. *579 See Thompson v. State, supra at 106, fn. 2, 519 S.E.2d 434; Johnson v. State, 207 Ga.App. 34, 36(2)(a), 427 S.E.2d 29 (1993). We find no reversible error here.
5. Appellant complains that the jury found her guilty of felony murder without specifying which of three underlying felonies served as the predicate offense. "However, any issue concerning the felony murder count is moot, since the trial court entered a judgment of conviction and sentence only on the verdict finding [Appellant] guilty of malice murder. [Cit.]" Boddy v. State, 265 Ga. 498, 499(4), 458 S.E.2d 630 (1995).
6. Appellant contends that the trial court erred in refusing to give a charge on voluntary manslaughter as a lesser included offense. She did not, however, make a written request for such a charge. Brown v. State, 269 Ga. 67, 69(2), 495 S.E.2d 289 (1998). Moreover, when asked for exceptions to the charge, Appellant's counsel only made two objections which were unrelated to the omission of a charge on voluntary manslaughter, and made no reservation of further objections to the charge. Thus, we will not review this enumeration of error. Bryant v. State, 268 Ga. 33, 34(1), 485 S.E.2d 763 (1997); Lucas v. State, 265 Ga. 514, 515(2), 458 S.E.2d 103 (1995); McGhee v. State, 264 Ga. 193, 194(3), 442 S.E.2d 757 (1994).
7. Appellant objected to the trial court's charge on conspiracy, on the ground that the State had not presented sufficient evidence to support the charge. The evidence showed that Appellant planned with Ray and Thompson to steal money and drugs from the victim, that she went to the victim's house first, and that she was present there when either Ray or Thompson arrived and the victim was murdered. See Fetty v. State, 268 Ga. 365, 371(7), 489 S.E.2d 813 (1997); Satterfield v. State, 256 Ga. 593, 594(1), 351 S.E.2d 625 (1987). Thus, the evidence authorized the trial court to charge on the law of conspiracy. See Agnew v. State, 267 Ga. 589, 591(2), 481 S.E.2d 516 (1997).
Judgments affirmed.
All the Justices concur, except BENHAM, C.J., who concurs in Divisions 1, 2, 3, 5, 6 and 7 and in the judgment.
NOTES
[1] The crimes occurred on December 5, 1997. The grand jury returned its indictment on January 30, 1998. The jury found Appellant guilty on June 5, 1998 and, on June 9, 1998, the trial court entered the judgments of conviction and sentences. Appellant filed a motion for new trial on July 2, 1998, and amended it on September 23, 1998. The trial court denied the motion for new trial on March 5, 1999, and Appellant filed a notice of appeal on March 18, 1999. The case was docketed in this Court on April 22, 1999, and orally argued on June 21, 1999. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331765/ | 254 S.E.2d 561 (1979)
Don TRIMBOLI
v.
BOARD OF EDUCATION OF the COUNTY OF WAYNE, etc., et al.
No. 14117.
Supreme Court of Appeals of West Virginia.
April 10, 1979.
Dissenting Opinion May 18, 1979.
*562 Fowler, Paterno & Lane, Charlotte R. Lane, Charleston, for plaintiff in error.
Greene, Ketchum & Mills, Menis E. Ketchum, Lawrence J. Tweel, Huntington, for defendant in error.
HARSHBARGER, Justice:
Don Trimboli appeals an order of the Circuit Court of Wayne County dismissing his petition for mandamus to compel the Wayne County Board of Education and Wayne County School Superintendent Mose Napier to restore him to his position as Director of Federal Programs for the county schools.
Trimboli became a Wayne County teacher in 1961, and on June 4, 1964 signed a "Teacher's Continuing Contract of Employment" whereby he was employed by the board commencing August 26, 1964, at $508.00 per month with provision that salaries for subsequent school terms would be fixed by the board to be paid in the manner and time prescribed by law ". . . for the length of the school term to be fixed by the Board pursuant to law."[1]
We find no record of any other contract between Trimboli and the board. However, since 1967 he has been paid on a twelve month basis and in 1972 became Director of Federal Programs in the system's central office.
In April, 1977 he was notified by Superintendent Napier that he was to be transferred from central office to a teaching position. He received written notice a few days later.
Trimboli requested a board hearing, which was held June 13. After the hearing the board affirmed the transfer.
I.
W.Va.Code provisions in effect in April, 1977, defining Mr. Trimboli's status are not easily interpreted. Chapter 18, Education and Chapter 18A, School Personnel, had sections that may apply to him.
Code, 18-1-1(g) states:
"Teacher" shall mean teacher, supervisor, principal, superintendent, public school librarian or any other person regularly employed for instructional purposes in a public school in this State;
And, Code, 18-1-1(h):
"Service personnel" shall mean all nonteaching school employees not included in the above definition of "teacher . .."
Code, 18A-1-1 has these further pertinent definitions:
The definitions contained in section one [§ 18-1-1], article one of chapter eighteen shall be applicable to this chapter. In addition, the following words used in *563 this chapter and in any proceedings pursuant thereto shall, unless the context clearly indicates a different meaning, be construed as follows:
a. "School personnel" shall mean all personnel employed by a county board of education whether employed on a regular full-time basis, an hourly basis or otherwise. School personnel shall be comprised of three categories: Professional personnel, auxiliary personnel and service personnel.
b. "Professional personnel" shall mean persons who meet the certification and/or licensing requirements of the State, and shall include the professional educator and other professional employees.
c. "Professional educator" shall be synonymous with and shall have the same meaning as "teacher" as defined in section one [§ 18-1-1], article one, chapter eighteen of this Code. Professional educators shall be classified as:
(1) "Classroom teacher": The professional educator who has direct instructional or counseling relationship with pupils, spending the majority of his time in this capacity.
(2) "Principal": The professional educator who as agent of the board has responsibility for the supervision, management and control of a school or schools within the guidelines established by said board. The major area of such responsibility shall be the general supervision of all the school and all school activities involving pupils, teachers and other school personnel.
(3) "Supervisor": The professional educator who, whether by this or other appropriate title, is responsible for working primarily in the field with professional and/or other personnel in instructional and other school improvement.
(4) "Central office administrator": The superintendent, associate superintendent, assistant superintendent, and other professional educators, whether by these or other appropriate titles, who are charged with the administering and supervising of the whole or some assigned part of the total program of the county-wide school system.
d. "Other professional employee" shall mean that person from another profession who is properly licensed and is employed to serve the public schools.
e. "Auxiliary personnel" shall mean those persons selected and trained for teacher-aide classifications such as monitor aide, clerical aide, classroom aide, general aide.
f. "Service personnel" shall mean those who serve the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch.
Chapter 18A which must be read in pari materia with Chapter 18, Smith v. Siders, 155 W.Va. 193, 183 S.E.2d 433 (1971), has in its Article 4, Section 8, as it was in effect in 1977, pay scales for service and auxiliary personnel and lists and defines duties of both service and auxiliary employees. The enumeration commences with "Aide I," defined by reference to 18A-1-1 to be "those persons selected and trained for teacher-aide classifications such as monitor aide, a clerical aide, classroom aide, general aide"; and concluding with "school bus supervisor." In between are listed custodian, carpenter, electrician, foreman, general maintenance, groundsman, handyman, lubrication man, machinist, mechanic, mechanic assistant, office equipment repairman, painter, plumber, maintenance supervisor, truck driver, and so forth.[2]
*564 18A-4-8 [1976] also authorized the state board of education to establish other class titles of service personnel positions and pay scales for them. No regulation was in effect in 1977 placing professional educators, professional personnel, or "directors" of any sort in the service personnel class, to our knowledge.
We find that Chapter 18A's list of service personnel limits Chapter 18-1-1(h) which defines service personnel to be all non-teaching school employees not defined as teachers. Thus, tenure provisions for service personnel in 18A-2-6 and 18A-2-7, whereby after three years' satisfactory service they are entitled to continuing contracts, are not available to Mr. Trimboli.[3]
On the record before us, Mr. Trimboli was not employed in any tenured classification except as a teacher, covered by his teacher's contract.
II.
Appellant claims that when he became Director of Federal Programs his teacher contract was modified to provide for twelve months employment as the Director of Federal Programs and that he thereby became entitled to continuing twelve month employment. But he introduced no contract to buttress his testimony, to show any status other than his basic teacher status.
No allegation was made, nor could have been made, that his teacher's contract was terminated. It was never an issue in any of the proceedings, and remains unsullied and in full effect.
If he was extended from ten to twelve month employment as a teacher, his claim to a vested right to twelve month employment as a teacher, is controlled by section (m) of the teacher contract: "The Teacher may, from year to year, or from time to time, be assigned . . . to other and different positions . . . [and] salary of the teacher may be increased or decreased, in accordance with changes in the kind of position or changes in the kind of duties."
III.
Trimboli alleges that the board acted arbitrarily and capriciously, and violated his First Amendment rights when it approved his return to teaching: that it acted as it did because he was opposed to, and vocal about, a bond issue election sponsored by the board. We agree that the reasons given by Superintendent Napier for his transfer were flaccid: that the superintendent wanted ". . . to see some new faces. . . [and have] new ideas at the central office." However, we agree with the trial court that there was little, if any, proof that the reason for Trimboli's transfer was his opposition to the bond issue. The facts that he opposed it and thereafter was transferred do not in themselves prove that one caused the other.
IV.
W.Va.Code, 18-5-32 provides in pertinent parts: . . . . .
The board, [of education] upon the recommendation of the county superintendent, shall have authority to employ such general and special supervisors or directors of instruction and of such other educational activities as may be deemed necessary. . . . The period of employment for . . . [such general *565 and special supervisors or directors] . . shall be at the discretion of the board.[4]
This section appears to justify and prescribe Trimboli's employment for a term discretionary with the board, and one would conclude from it that he served at the board's pleasure. Hence, directors, supervisors, or other administrators, employed per Code, 18-5-32, who may also be Code, 18A-1-1 professional personnel or 18-1-1 people who administer or supervise some part of the county school program, could be demoted, promoted, or transferred at the whim of the board upon recommendation of the superintendent, or for such reasons as were assigned by Superintendent Napier for Director Trimboli's transfer and apparent demotion.[5]
However, Powell v. Brown, W.Va., 238 S.E.2d 220 (1977), admonishes that an administrative board must abide by its rules, which in that case and this are in Policy No. 5300, (6)(a) and (6)(b) of the West Virginia Board of Education.
Policy No. 5300, (6)(a) and (b) is:
(a) Every employee is entitled to know how well he is performing his job, and should be offered the opportunity of open and honest evaluation of his performance on a regular basis. Any decision concerning promotion, demotion, transfer or termination of employment should be based upon such evaluation, and not upon factors extraneous thereto. Every employee is entitled to the opportunity of improving his job performance prior to the terminating or transferring of his services, and can only do so with assistance of regular evaluation.
(b) Every employee is entitled to "due process" in matters affecting his employment, transfer, demotion or promotion.
In Powell we dealt with a probationary teacher's employment contract and we held that failure to renew it entitled the teacher to a grievance procedure hearing required by Regulation 5300(6)(b). We further found that the fact that the procedure was generous beyond statutory or constitutional requirements did not excuse a board of education from following it.
Here, grievance procedure is not questioned. The record reflects Trimboli's hearing, and it complies with our North v. West Virginia Board of Regents, W.Va., 233 S.E.2d 411 (1977) due process requirements, and thus with 5300 (6)(b).[6]
V.
5300(6)(a) has never been applied or interpreted by this Court. Its implementation has not been mandated as a prerequisite to promotion, demotion or transfer of school employees.
There is no evidence about any evaluation by the Superintendent or anyone else of Trimboli's job performance, or improvement opportunity given to him. And we therefore must decide whether this policy affects the discretion of the board to terminate or transfer people who are 18-5-32 employees, and its effect upon employee Trimboli.
The rule unequivocally makes evaluation and opportunity to improve an entitlement of every board of education employee; and it makes no distinction between employees classified by statute as supervisory or whatever.
The employee right to evaluation and opportunity to improve is not however, buttressed by imposition of a supporting duty upon the board to provide evaluations. The *566 rule simply says the employee "should be offered the opportunity of open and honest evaluation . . . and that decisions about employees' change in status . . . should be based upon such evaluation.. . ." [Our emphasis]
We must resolve this difference liberally in favor of the employee, Lewing v. DeSoto Parish School Board, 238 La. 43, 113 So. 2d 462 (1959), and hold evaluation and opportunity to improve a mandatory function of every board of education, and right of every board employee. We do this, realizing that the result of Rule 5300(6)(a) is to give job protection to all school employees who are performing competently, against demotion, transfer or discharge without cause. Rule 5300(6)(a) has, in our view, fixed competent performance as the key to continued employment, just as effectively as would a statute to like effect [see, Brown v. Powell, supra and United States v. Johnston, 34 F. Supp. 4 (S.D.W.Va.1941)], and has fixed evaluations and opportunity to improve to be prerequisites to transfers, demotions or terminations for incompetent performance of all school board employees.
The next question is whether a board's failure to provide these benefits affects its statutory authority to hire certain people to serve at the board's discretion.
Several state statutes require evaluation and opportunity to improve precedent to discharge of tenured school employees for incompetency. California's Stull Act, (formerly, Cal.Educ.Code, section 13407, now section 44938 of the Reorganized Educ. Code) is one, and it has been applied to require improvement opportunity be given before an employee can be discharged for defective performance. Tarquin v. Commission on Professional Competence, 84 Cal. App. 3d 251, 148 Cal. Rptr. 522 (1978).
However, the California court has refused to make evaluation protection applicable to school administrators. In Grant v. Adams, 69 Cal. App. 3d 127, 137 Cal. Rptr. 834 (1977), a school principal was reassigned to a teaching position. Principals are classified as administrators, and at the end of a probation period become permanent employees, but as classroom teachers.[7] Administrators have no tenure, serving at the pleasure of the appointing authority. Plaintiff relied on the evaluation requirements of the Stull Act to invalidate his transfer, but it was held to be inapplicable to purely administrative positions. California had no Rule 5300(6)(a) that applied to all school board employees.
An earlier California case involved a teacher who was dismissed from his permanent position because he violated two school board regulations, viz., having outside employment and not being familiar with rules and regulations of the board. The court found these to be correctable faults, and because the teacher was not given 90 days notice to correct them as required by statute, held the dismissal action premature. Fresno City High School Dist. v. Dillon, 34 Cal. App. 2d 636, 94 P.2d 86 (1939).
The Illinois school code requiring 60 days notice to extend a teacher's probationary period was interpreted in Glover v. Bd. of Educ. of Macon Comm. Dist. No. 5, 21 Ill. App. 3d 1053, 316 N.E.2d 534 (1974). The notice was required to state the reasons for the extension and outline corrective actions the teacher should take to complete probation, if the misconduct was correctable. The school board decided that the teacher's discipline problems and lack of rapport with students was irremediable, and the court agreed. In addition, the teacher had been warned by the superintendent and principal, and told to improve. His dismissal was upheld, even though no 60 day notice was given.
Missouri also has a Teachers Tenure Act that requires notice and warning 30 days before service of charges of incompetency, inefficiency, or insubordination. The purpose of the statute is to give the teacher an opportunity to know the exact complaints against him or her and to have a reasonable period of time to cure them. A teacher, charged with being late to her classroom in the mornings and not keeping children in *567 straight lines on their way to the cafeteria, was given a warning notice but for different charges. The court found the discharge to be improper because the school board failed to comply with the statutory requirement that tenured teachers be given 30 days notice of alleged deficiencies to have opportunity to correct them. Blue Springs Reorganized School District IV v. Landuyt, Mo.App., 499 S.W.2d 33 (1973).
The Louisiana court in Lewing v. DeSoto Parish School Board, supra, held that a teacher should be reinstated even though there was no express statutory requirement of warning of poor performance, when her continued tardiness resulted in her dismissal.
However, in Verret v. Calcasieu Parish School Board, La.App., 201 So. 2d 385 (1967) when a principal, reduced to teacher status, argued that as a matter of law he was entitled to warning notice in order that he could improve his work, the court decided that because of the nature of his misdeeds incompetence and failure to provide his faculty with adequate guidance, resulting in a strained principal-faculty relationship warning would not have helped. There was no regulation such as Policy 5300(6)(a).
In Morgan v. New Mexico State Board of Education, 83 N.M. 106, 488 P.2d 1210 (1971), a teacher was discharged, but not in compliance with a state school board regulation prescribing procedures to be followed by the board to allow correction of unsatisfactory work of personnel before notice of discharge is served upon them. The procedure adopted in the regulation, but not followed, required three conferences and a written record of the conferences, specifying: (1) the areas of unsatisfactory work performance, (2) action taken to improve the performance, and (3) improvements made.
Although the teacher was discharged for breach of contract for inflicting punishment in violation of school policy, and not for "unsatisfactory work performance," the court found the regulation to be applicable. And because the prescribed procedure was not followed, it reversed the board's decision to discharge the teacher. The court did say that it assumed that if the work performance was not correctable, the statute and regulation issued under its authority, would not be applicable.
These cases lead us to a very basic conclusion: Rule 5300(6)(a), like statutes and rules elsewhere to the same effect, is not a piece of fluff. Failure by any board of education to follow it, for all employees because it applies by its very terms to all employees, prohibits such board from discharging, demoting or transferring an employee for reasons having to do with prior misconduct or incompetency that has not been called to the attention of the employee through evaluation, and which is correctable.
We are aware of the Grant v. Adams, supra, language, quoted from Hentschke v. Sink, 34 Cal. App. 3d 19, 109 Cal. Rptr. 549 (1973): ". . . [A] second or third level administrator bears to his superiors a relationship of the most intimate nature, requiring complete trust by the top administrators in the judgment and cooperative nature of the subordinate. The loss of that trust is not a matter susceptible of proof such as is involved in the cases where a classroom teacher is dismissed or demoted for objective acts of misconduct." 69 Cal. App.3d at 132, 137 Cal.Rptr. at 837.
But we are likewise aware that our Rule 5300(6)(a), makes no distinctions as to administrative, supervisory or other employees. It protects administrators and other board employees against demotion or transfer or discharge unless their work is openly and honestly evaluated and they have opportunity to improve. We mean no imputation of bad motives to the Wayne County Board of Education or its Superintendent when we recognize that in some West Virginia counties the "loss of trust" about which the California court wrote, has been failure by the "second or third level administrator" and his family to "vote right"; or his or her failure to be content with maladministration. We must, perhaps, sacrifice sweetness and harmony in school administration, to encourage competency and professionalism.
*568 We remand the cause to the Circuit Court of Wayne County, to determine whether the Board of Education had complied with Rule 5300(6)(a). If it did not, the trial court will order Trimboli's reinstatement, with restoration of the pay loss he suffered by reason of his transfer from Director of Programs to the teaching position.
Reversed and remanded.
NEELY, Justice, dissenting:
I respectfully dissent from the Court's opinion upon the ground that it creates not only an unnecessary but a fundamentally unsound burden on public school administration in West Virginia. While the majority concludes correctly that Mr. Trimboli was an untenured administrator, they err in holding that West Virginia Board of Education Policy No. 5300(6)(a) requires formal evaluation and improvement periods before a policy making employee may be terminated or transferred. Even if Policy No. 5300(6)(a) imposes a condition precedent to the discharge or transfer of employees who do not make policy, it clearly cannot do so with regard to board of education administrative personnel.[1] Mr. Trimboli's employment as Director of Federal Programs for the Wayne County Board of Education was clearly pursuant to W.Va.Code, 18-5-32 [1949] which provides in pertinent part:
The [county] board [of education], . . shall have authority to employ such general and special supervisors or directors of instruction and of such other educational activities as may be deemed necessary.. . . [Their] period of employment. . . shall be at the discretion of the board. [Emphasis supplied]
This provision alone precludes the majority's interpretation of Policy No. 5300(6)(a). While an administrative agency must be held to the standards which it establishes for itself, Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959); Powell v. Brown, W.Va., 238 S.E.2d 220 (1977), it can legally adopt only those rules and regulations which are not in conflict with the laws enacted by the Legislature. Anderson & Anderson Contractors, Inc. v. Latimer, W.Va. (1979); Walls v. Miller, W.Va., 251 S.E.2d 491 (1978). In both Anderson and Walls, this Court, after examining the governing statutes and the underlying legislative policy, found certain regulations promulgated by the West Virginia Department of Natural Resources and the West Virginia Department of Mines respectively to be void because they conflicted with statutory law. While a uniform set of rules does not apply both to the mining of coal and the running of schools the principle that rules and regulations cannot contravene statutes applies to both. Policy No. 5300(6)(a) as interpreted by the majority is in direct conflict with W.Va. Code, 18-5-32 [1949]. The Legislature, in the proper exercise of its lawful powers, provided that policy making, administrative personnel would serve at the discretion of the local board. The Legislature recognized that superintendents must have loyal, enthusiastic officers to carry out their policy by making these officers serve at the will *569 and pleasure of the board in W.Va.Code, 18-5-32 [1949]; the majority ignores the clear statute in reaching their decision. Administrators have a clear legal right to enthusiastic as well as competent personnel.
The stated purpose of a Policy No. 5300(6)(a) performance evaluation is to allow "[e]very employee . . . the opportunity of improving his job performance,. . ."; however, in the vast majority of cases, the differences which lead to transfer or termination of administrative personnel, i. e., lack of trust, ideological variances, or personality conflicts, are not susceptible to improvement through evaluation.[2] As is often the case with this Court as currently constituted, I detect an attempt to temper the wind for the shorn lambunder proper circumstances a laudable and legitimate judicial function. The facts here, however, do not justify creative expansion of Policy No. 5300 in the face of W.Va.Code, 18-5-32 [1949] because the petitioner behaved in such a way as to make his demotion a reasonable and foreseeable consequence of his own actions. Mr. Trimboli, in active opposition to a board sponsored bond issue, vocally denounced the bond issue at two public meetings after his fellow administrators specifically requested his cooperation. Boards of education are legitimately constituted, institutional lobbyists for better schools; better schools inevitably require money. It is obvious that W.Va.Code, 18-5-32 [1949] does not countenance a board of education's being required to feed, clothe, and comfort a fifth columnist in its own ranks. If a superintendent cannot be assured that his closest deputies will help him carry out the policy as made by the board, a legitimately constituted political body charged with making such policy, then how is there ever to be a concerted effort to improve the schools in West Virginia?
Not all politics is dirty, filthy, and utterly meretricious; politics is government and there are duly constitutional political authorities elected to carry out certain policies dictated by voters. Does it not seem ludicrous that the voters should be able to elect a board of education to carry out a program, such as improvement of the school system, have the power to deny that board reelection for failure to accomplish what the voters wish, and yet, at the same time provide a scheme where the very instruments which the board has been given to carry out voter initiated programs be permitted to oppose those programs at every turn with no fear of retribution? Unreasonable job tenure among the highest bureaucracy makes a farce of the democratic process. Had the petitioner been fired or demoted for failure to make a campaign contribution, for failure to hire someone's niece, for failure to work the polls for a particular board candidate, or for belonging to the wrong political "faction," my sympathies might be with the majority's result, although on the face of W.Va.Code, 18-5-32 *570 [1949] I would be put to the task of constructing a more rational theory than the one based on Policy No. 5300. Perhaps, in the above hypothetical examples, the case would be within the penumbra of Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), where the United States Supreme Court held that the patronage practice by which the Sheriff of Cook County, Illinois, on assuming office from a Sheriff of a different political party, would automatically replace non-civil service employees with members of his own party was violative of the first amendment. Even that holding, however, was limited to non-policy making and non-confidential employees. See also Harless v. First National Bank in Fairmont, W.Va., 246 S.E.2d 270 (1978). Slowly the good government lobby, the newspapers, the bureaucracy, and the courts are convincing us that because of some abuse in the political process, all political decision making is evil. Consequently the modern trend is to have all elected officials and all will and pleasure appointees replaced by life tenured, colorless, odorless, tasteless bureaucrats who in their "professional judgment" know (by drawing upon the vast resources of their extensive educations) what is best for us. I am not ready to sell my birthright in return for arguable expertise; I want my elected officials to have the power to implement my policy as a voter because I still believe that the vote means something.
NOTES
[1] W.Va.Code, 18-5-15 sets the basic school term for teacher employment at ten months.
Section (h) of Trimboli's contract, on a West Virginia Department of Education approved form, is:
In pursuance of Section 1, Article 7, Chapter 18 of the Code of West Virginia, as amended by Chapter 53, Acts of the Legislature 1939, this contract is a continuing contract of employment and shall remain in full force and effect, subject to all the provisions herein set forth, except as modified by mutual consent of the Board and the Teacher, unless and until terminated with written notice, stating cause or causes, to the Teacher, by a majority vote of the full membership of the Board before April first of the then current year, or by written resignation of the Teacher before that date, and such termination shall take effect at the close of the school year in which this contract is so terminated. The expression "cause or causes" as in this paragraph used shall mean failure on the part of the Teacher to fulfill this contract, or violation on the part of the Teacher of a lawful provision hereof. This contract may be terminated at any time by mutual consent of the Board and the Teacher.
Section (m) states:
In the construction and operation of the contract as a continuing contract of employment, the Teacher may, from year to year, or from time to time, be assigned to other and different positions in the same school, or to other and different positions in other and different schools and that, in any such event, the salary of the Teacher may be increased or decreased, in accordance with changes in the kind of position or changes in the kind of duties.
[2] 18A-4-8 was amended in 1977 and 1978. The listing of service personnel was expanded. One of the classifications added was "`Director or coordinator of services' [which] means personnel not defined as professional personnel or professional educators in . . . [18A-1-1]. . . who are assigned to direct a department or division." [our italics] . . . "Professional personnel" in 18A-1-1 are certified or licensed persons, including professional educators and other professional employees. "Professional educators" are teachers per 18-1-1; principals; supervisors; and "`Central office administrator': the superintendent, associate superintendent, . . . whether by these or other appropriate titles, who are charged with the administering and supervising of the whole or some assigned part of the total program of the county-wide school system." It would seem that a director of federal programs must be within the professional personnel or professional educator class, and excluded from even the recently amended list of service personnel.
[3] Code, 18A-2-5 provides for board employment of service personnel by written contract which may be in letter form, accepted by signature by the employee. There is no evidence of such contract in this record.
[4] The code section continues:
Any person employed under the foregoing provision of this section, provided he holds a valid teacher's certificate, shall be given continuing contract status as a teacher and shall hold such status unless dismissed for statutory reasons. [Emphasis added]
[5] Any school employee may be suspended or dismissed for immorality, incompetency, cruelty, insubordination, intemperance or wilful neglect of duty, after being charged in writing, and given a hearing. Code, 18A-2-8. There were no such charges against Mr. Trimboli.
[6] See, State ex rel. Linger v. Board of Education of Putnam County, 152 W.Va. 379, 163 S.E.2d 790 (1968) wherein this Court found the provisions of Code, 18-5-4 prescribing procedure to be followed by school board precedent to teacher transfers, mandatory, and violation to be correctable in prescribing mandamus.
[7] See n.4, supra, for a similar provision in our Code.
[1] In my estimation, Policy No. 5300(6)(a) does not create a duty to provide any employee an evaluation and opportunity to improve work performance but is rather a policy statement by the West Virginia Board of Education that employees "should be offered . . . [an] evaluation" and "[are] entitled to the opportunity of improving job performance." Noting the lack of any mandatory language might seem an exercise in result-oriented schematics; however, such is not the case when Policy No. 5300 is considered in its entirety. Its only mandatory language is found in sections seven and eight which provide respectively that "[a]ll official and enforceable personnel policies must be written and made available" and "[e]ach board of education must adopt a written grievance procedure" to resolve employer/employee differences." There is absolutely no provision mandating adoption of an evaluation procedure. Apart from sections seven and eight, Policy No. 5300 does not create substantive rights in an employee the deprivation of which can bar the employee's discharge or transfer. For example, Policy No. 5300(4) provides that employees "should be encouraged to make suggestions." It would be ridiculous to infer that a local board has a duty to solicit suggestions before it can discharge or transfer an employee. I reassert my dissent in Powell v. Brown, W.Va., 238 S.E.2d 220 (1977) where this Court held that a nontenured probationary employee was entitled to "due process" by virtue of Policy No. 5300(6)(b).
[2] The majority cites numerous cases from sister jurisdictions, but an examination of those cases reveal that they do not support an evaluation/opportunity to improve procedure as a condition precedent to the discharge or transfer of administrative personnel. In Miller v. Chico Unified School District, Cal.App.3d, 148 Cal. Rptr. 270 (1978), the court specifically held that the statutorily mandated evaluation procedure applicable to all certified personnel, Cal.Educ.Code, § 44660 [1977], did not act as a condition precedent to the reassignment of an administrator. See also Grant v. Adams, 69 Cal. App. 3d 127, 137 Cal. Rptr. 834 (1977). The case of Tarquin v. Commission on Professional Competence, 84 Cal. App. 3d 251, 148 Cal. Rptr. 522 (1978) so highly touted by the majority merely held that an evaluation and opportunity to improve had to be afforded a teacher being dismissed for poor performance. A holding similar to that of Miller, supra, can be found in Verret v. Calcasieu Parish School Board, 201 So. 2d 385 (La.App.1967) where that court said:
We cannot agree with [the] contention that before the School Board could lawfully remove him . . . as principal they must afford him an opportunity to rectify the conditions on which removal was founded. 201 So.2d at 387.
The other cited cases do not directly involve discharge or transfer of administrative personnel; however, they do make a distinction even on the classroom teacher level between correctable and uncorrectable situations. See Glover v. Board of Education of Macon Community, 21 Ill.App.3d 1053, 316 N.E.2d 534 (1974); Morgan v. New Mexico State Board of Education, 83 N.M. 106, 488 P.2d 1210 (1971); Blue Springs Reorganized School District IV v. Landuyt, 499 S.W.2d 33 (Mo.App.1933). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331809/ | 254 S.E.2d 23 (1979)
297 N.C. 168
STATE of North Carolina
v.
Steven M. STINSON.
No. 71.
Supreme Court of North Carolina.
April 20, 1979.
*24 Rufus L. Edmisten, Atty. Gen., by Daniel C. Oakley, Asst. Atty. Gen., Raleigh, for the State.
Billy G. Sandlin, Jacksonville, for defendant.
EXUM, Justice.
After consideration of defendant's assignments of error challenging, among other things, the sufficiency of the trial court's findings of fact on a motion to suppress, the admission of certain evidence and the sufficiency of the evidence to support second degree murder, we find that defendant received a fair trial free from prejudicial error.
The state's evidence tended to show that in the early morning hours of 8 May 1977 members of the Jacksonville Rescue Squad responding to a call at defendant's home found defendant's two-year old son Patrick dead. An autopsy showed the cause of Patrick Stinson's death to be laceration of the duodenum, jejunum and ileum with hemorrhage and peritonitis. The doctor who conducted the autopsy testified that in his opinion the cause of the fatal injury could have been human blows. He further stated that there were multiple burns and bruises of varying ages on the deceased's body. Testimony of other witnesses corroborated the presence of the burns and bruises and the fact that they were of some duration. Defendant originally told deputy sheriffs investigating the case that Patrick had drowned. He later stated that he had beaten the child but had not intended to kill him.
Defendant offered no evidence.
Defendant's first assignment of error challenges the sufficiency of the trial court's findings of fact on defendant's motion to suppress his statements to the deputy sheriffs. On voir dire defendant testified that Deputy Sheriff Woodward told him it would be to his benefit to talk. Woodward denied making any such statement. Defendant argues that if his confession was induced by hope of benefit it was involuntary and should have been suppressed. See State v. Fuqua, 269 N.C. 223, 152 S.E.2d 68 (1967). He argues that an evidentiary conflict was raised on this point and the trial court failed to resolve it. We note, however, that among the findings of fact by the trial court on the motion to suppress was the following: "That no hope *25 of reward or inducement was made by the law enforcement officers for the defendant to make these statements." Although not couched in the exact language of the testimony, this finding sufficiently resolves the evidentiary conflict against defendant. It is supported by the evidence and therefore conclusive on appeal. State v. Smith, 278 N.C. 36, 178 S.E.2d 597, cert. denied, 403 U.S. 934, 91 S. Ct. 2266, 29 L. Ed. 2d 715 (1971). Defendant's first assignment of error is overruled.
Defendant next argues that it was error to allow two lay witnesses to testify that they had observed burns on the body of Patrick Stinson. He contends that these statements were impermissible expressions of opinion. We disagree. "This Court has long held that a witness may state the `instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.' Such statements are usually referred to as shorthand statements of facts." State v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975), death penalty vacated, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210 (1976); accord State v. Jones, 291 N.C. 681, 231 S.E.2d 252 (1977) (witness allowed to testify he saw bloodstains on defendant's shirt). We think the witnesses' testimony that they observed burns on the deceased's body is clearly permissible under this rule. Defendant's second assignment of error is overruled.
Defendant's third assignment of error challenges the admissibility of Dr. Walter Gable's opinion that the cause of deceased's death could have been human blows. Dr. Gable, who was qualified as an expert forensic pathologist, had conducted an autopsy on the body of Patrick Stinson. His opinion was clearly based on that autopsy. "It is a well-settled rule that an expert may give an opinion based on facts within his personal knowledge . . .." State v. Wade, 296 N.C. 454, 458, 251 S.E.2d 407, 409 (1979). Defendant's third assignment of error is overruled.
Defendant next assigns as error the introduction into evidence of four color photographs of deceased's body. "Properly authenticated photographs of the body of a homicide victim may be introduced into evidence under instructions limiting their use to the purpose of illustrating the witness' testimony. Photographs are usually competent to be used by a witness to explain or illustrate anything that it is competent for him to describe in words." State v. Cutshall, 278 N.C. 334, 347, 180 S.E.2d 745, 753 (1971). Here the photographs were properly authenticated. They were clearly used to illustrate Dr. Gable's testimony. Proper limiting instructions were given. Finally, we have examined the photographs themselves and find they were neither excessive in number nor unduly prejudicial.
Defendant by his fifth assignment of error contends that the evidence was not sufficient to show the element of malice necessary for a conviction of second degree murder. Defendant bases this argument primarily on his statements to police officers that he did not mean to kill or hurt Patrick Stinson. "While an intent to kill is not a necessary element of second degree murder, the crime does not exist in the absence of some intentional act sufficient to show malice and which proximately causes death." State v. Wilkerson, 295 N.C. 559, 580, 247 S.E.2d 905, 917 (1978). As the trial court properly instructed the jury this necessary element of malice can be found even in the absence of an intent to kill or inflict serious injury when a defendant has acted wantonly "in such a manner as to manifest a depravity of mind, [a] heart devoid of a sense of social duty and a callous disregard for human life." In considering defendant's argument, which is based on his motion for nonsuit, we must consider the evidence in the light most favorable to the state and give the state the benefit of every reasonable inference that can be drawn therefrom. State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977). The jury could properly have found that defendant inflicted a number of injuries on the body of his two-year old son over a period of time and *26 then finally inflicted blows sufficient to cause death. From this the jury could have inferred the necessary malice to support a conviction for second degree murder. Defendant's fifth assignment of error is overruled.
We have examined defendant's remaining assignments of error and find they do not merit discussion. In the trial there was
NO ERROR.
BRITT and BROCK, JJ., did not participate in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331829/ | 285 S.E.2d 411 (1981)
Teresa DeVITO
v.
The BOARD OF EDUCATION, COUNTY OF MARION, et al.
No. 15277.
Supreme Court of Appeals of West Virginia.
December 18, 1981.
Darrell W. Ringer, Morgantown, for appellant.
Charles E. Anderson, Pros. Atty., Marion County, Fairmont, for appellees.
PER CURIAM:
This is an appeal from a final judgment of the Circuit Court of Marion County which affirmed an order of the Board of Education of Marion County dismissing Teresa M. DeVito from her employment as a teacher on the grounds of willful neglect of duty. DeVito contends that the Board's action was arbitrary and capricious. Because a finding of fact as to DeVito's intent in committing the offense complained of was not made and is essential to determining the reasonableness of the board's action, we remand for a finding of fact as to whether DeVito's action was intentional or merely inadvertent or careless.[*]
Teresa M. DeVito had been employed by the Marion County School Board as an art teacher for 18 years at the time of the incident which led to this action. It was her practice to pass out samples of art work to her students to be used as guides in their own work. In the spring of 1981, DeVito distributed to her eighth grade art class cartoons depicting a character known as "Fritz the Cat" and showing figures in various stages of undress. The documents also contained numerous curse words. DeVito has consistently taken the position that the distribution of these cartoons was unintentional, *412 claiming that she passed the cartoons out without previously examining them. The superintendent of schools, Mr. T. J. Pearse, contends that the distribution was with full knowledge of the contents of the materials. The board took no position in writing on the specific issue of DeVito's intent, and the trial court made no finding of fact in this regard in its memorandum of opinion.
DeVito claims that the board acted arbitrarily and capriciously in dismissing her, since the record did not support a finding of just cause to dismiss.
As we stated in Syllabus Point 3 of Beverlin v. Board of Education of Lewis County, W.Va., 216 S.E.2d 554 (1975):
"The authority of a county board of education to dismiss a teacher under W.Va.Code (1931), 18A-2-8, as amended, must be based upon the just causes listed therein and must be exercised reasonably, not arbitrarily or capriciously."
It is not clear from the record whether just cause to dismiss existed. As the trial court recognized, the proceedings before the School Board smacked of prejudgment against DeVito. It is important that the harsh remedy of dismissal of a teacher of eighteen years tenure not be exercised in the absence of a showing of just cause and dismissal must be exercised reasonably, not arbitrarily or capriciously.
In determining whether just cause existed herein, and whether the authority of the School Board was exercised reasonably, and not arbitrarily or capriciously, we find that the proceeding below did not focus on DeVito's knowledge and intent in distributing the materials. We consider DeVito's intent to be necessary to a judgment of the reasonableness of her punishment. A finding that she had passed out these documents with full knowledge of their contents may justify a more drastic remedy than would a finding that she had merely failed to review the items, and consequently distributed them, unaware of their contents.
Because no finding of fact was made on this issue, remand to the trial court is appropriate. See, Trimboli v. Board of Education of the County of Wayne, W.Va., 254 S.E.2d 561, 568 (1979). We therefore order that this case be remanded to the Circuit Court of Marion County for the purpose of hearing and determining whether DeVito's action occasioning her dismissal was intentional or merely inadvertent or careless. The circuit court shall enter an order deciding the reasonableness of the dismissal pursuant to its findings and according to the principles stated and directions given in this opinion.
Remanded with directions.
NOTES
[*] Our disposition of this assignment of error makes it unnecessary to discuss DeVito's remaining assignments of error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4216631/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 417 MAL 2017
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
CARLOS UBEN-SANCHEZ, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 31st day of October, 2017, the Petition for Allowance of Appeal
is DENIED. | 01-03-2023 | 10-31-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1331875/ | 149 Ga. App. 181 (1979)
254 S.E.2d 142
LEWIS
v.
THE STATE.
57105.
Court of Appeals of Georgia.
Submitted January 16, 1979.
Decided February 9, 1979.
Rehearing Denied March 1, 1979.
James M. Barnes, for appellant.
Charles A. Pannell, Jr., District Attorney, James E. Bethel, Assistant District Attorney, for appellee.
SMITH, Judge.
The appellant was convicted of driving under the influence of intoxicants and appeals from the judgment and the overruling of his motion for new trial. Appellant contends that the state's circumstantial evidence was not sufficient to support a conviction, that the state failed to prove that he was "less safe" to drive in his condition, and that there was a material variance between the allegation charged in the indictment and the proof presented at trial. Finding no error, we affirm.
Evidence at trial showed that the appellant was found by a nearby resident, Melvin Owenby, in a ditch on Weber Road. Mr. Owenby testified that appellant was sitting in his car "sleeping or something" and that the ignition and lights were on. Mr. Owenby asked appellant if he was all right and then turned off the ignition and lights and went home. Deputy Sheriff Langford and a trusty from the jail, Donnie Silvers, responded to a call about a traffic accident on Weber Road and arrived on the scene. According to their testimony, they found the appellant slumped over the steering wheel of his car. The car was still in the ditch but the ignition switch was on and the car was in gear. The deputy testified that the appellant appeared to be asleep or passed out. Both the deputy and the trusty smelled beer and noticed numerous cans of beer in the car. The deputy testified that appellant's speech was slurred, that there was a strong odor of beer on his breath, and that appellant was very unsteady on his feet.
The only evidence offered by the appellant was the testimony of Mr. Clifford Sneed. Mr. Sneed testified that he had been driving the car and had driven into the ditch to avoid hitting a cow on the road. He testified that he then left the appellant sitting in the car while he went to get help.
1. It is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence. Stephens v. State, 127 Ga. App. 416 (192 SE2d 870) (1972). It is not necessary that the circumstantial evidence exclude every reasonable inference or hypothesis *182 except guilt of an accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt. The jury itself decides whether every reasonable hypothesis except that of guilt of the defendant has been excluded. Rogers v. State, 139 Ga. App. 656, 659 (229 SE2d 132) (1976). The jury was in the best position to judge the credibility of the witnesses. "`Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find the evidence, though circumstantial was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.' Harris v. State, 236 Ga. 242, 245 (223 SE2d 643)." Gee v. State, 146 Ga. App. 528 (246 SE2d 720) (1978). The evidence is sufficient to support a conviction.
2. Appellant's contention that the state failed to prove that he was "less safe" to drive in his condition must fail for the same reasons. The deputy sheriff testified that the appellant was asleep or passed out when they found him, staggered when he walked, and had trouble speaking. This is sufficient circumstantial evidence for the jury to conclude that the appellant was less safe to drive in his condition.
3. The indictment charged the appellant with driving under the influence of intoxicants over the public road and highway known as Weber Road. The state did not include a showing that Weber Road was a public highway and appellant contends that this is a fatal variance from what was alleged in the indictment. Under the test adopted in DePalma v. State, 225 Ga. 465 (169 SE2d 801) (1969), a variance is not fatal unless it fails to definitely inform the defendant of the charges against him or leaves the defendant open to a subsequent prosecution for that offense. We do not believe that the variance in this case misled the appellant as to the charge against him or subjected him to another prosecution for the same offense.
In fact, driving "on a public road and highway" is not an essential element of the offense of driving under the influence (Code Ann. § 68A-902 (1974)) and should *183 therefore be treated as surplusage. Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978). "Where the variation is technical or trivial, or where the allegations and the proof substantially correspond, so that it cannot be said that the defendant was misled or prejudiced, the variance will not be fatal." Abercrombie v. State, 145 Ga. App. 204 (243 SE2d 567) (1978).
Judgment affirmed. Quillian, P. J., and Birdsong, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331816/ | 273 S.C. 56 (1979)
254 S.E.2d 291
The STATE, Respondent,
v.
Robert Stanley CABINESS, Appellant.
20932
Supreme Court of South Carolina.
April 11, 1979.
George W. Speedy, of Furman & Speedy, Camden, for appellant.
Atty. Gen. Daniel R. McLeod and Staff Atty. Buford S. Mabry, Columbia, and Sol. William R. Hare, Chester, for respondent.
April 11, 1979.
Per Curiam:
Appellant was convicted of distribution of marijuana and was sentenced to five (5) years imprisonment.
Prior to trial, appellant moved for the disqualification of the trial judge on the basis that he had appeared before him on at least three previous occasions and was sentenced by him on one of them. When appellant made his motion, the *57 trial judge noted that defendants frequently appeared before him after previous appearances in his court. In denying the motion, he stated that he would not be prejudiced against appellant and that he would do his utmost to give him a fair trial as he did for all other defendants. Later, when he was sentencing appellant, the trial judge noted that he never would have remembered sentencing him previously had appellant not mentioned it.
Almost all cases considering the question are authority for the general rule that a judge is not disqualified in a criminal action because of an adverse decision in a former case involving entirely different and unrelated criminal charges against the same party. 21 A.L.R. 3d 1369, 1371 Section 2. See cases annotated under 21 A.L.R. 2d 1369, 1375 Section 4(c). We hold that where, as here, a trial judge has sentenced a defendant in a previous criminal proceeding, that fact alone does not necessarily establish cause to disqualify him in a subsequent, unrelated criminal proceeding. See People v. Campbell, 28 Ill. App. 3d 480, 328 N.E. (2d) 608 (1975).
In considering whether the circumstances presented here required disqualification, the following portion of Canon 3(C) (1) of the Code of Judicial Conduct, Rule 33 of the Rules of Practice of this Court is relevant:
A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where ... (a) he has personal bias or prejudice concerning a party ...
Here, the record indicates nothing about the previous proceedings which would have affected the trial judge's impartiality. In this case, appellant did not demonstrate and the record does not show that the trial judge had any bias or prejudice toward appellant which would have justified his disqualifying himself.
*58 Although appellant contends that the trial judge should have conducted further inquiry into his allegations, the trial judge appears to have given adequate consideration to the motion under the circumstances. We see no error in his decision.
After a full consideration of the remaining issue raised by appellant, we are of the opinion that no error of law appears and that this issue is governed by well settled principles of law. Accordingly, it is dismissed under Rule 23 of the Rules of Practice of this Court.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331843/ | 254 S.E.2d 197 (1979)
41 N.C. App. 184
UNIGARD CAROLINA INSURANCE COMPANY
v.
F. Marion DICKENS, Individually and as President of Dickens & Hux Awnings, Inc., and Dickens & Hux Awnings, Inc.
No. 786DC644.
Court of Appeals of North Carolina.
May 1, 1979.
*198 Allsbrook, Benton, Knott, Cranford & Whitaker by Thomas I. Benton, Roanoke Rapids, for plaintiff-appellee.
Clark & Godwin by Charlie D. Clark, Jr., Roanoke Rapids, for defendants-appellants.
PARKER, Judge.
By this appeal the defendants attempt to obtain immediate appellate review of an interlocutory order of the trial court which accepted the jury's verdict fixing liability and directed there be a new trial solely on the issue of damages. We find the appeal premature and order it dismissed.
In Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979), the opinion in which was filed on 5 February 1979, our Supreme Court held that an order of the trial court granting plaintiff's motion for partial summary judgment on the issue of liability, reserving for trial the issue of damages, and denying defendant's motion for summary judgment, was an interlocutory order not subject to immediate appeal. The defendants in the present case, after entry of the order from which they now attempt to appeal, were in precisely the same position as the defendant in Industries, Inc. v. Insurance Co., supra after entry of the order from which appeal was attempted in that case, albeit they had followed a different route to get there. In each case defendants were confronted with an order which fixed liability and retained the cause for determination solely on the issue of damages. In holding the order in Industries, Inc. not immediately appealable inasmuch as it was an interlocutory order which did not deprive defendant of any substantial right, our Supreme Court observed that "[e]ven if defendant is correct on its legal position, the most it will suffer from being denied an immediate appeal is a trial on the issue of damages." 296 N.C. at 491, 251 S.E.2d at 447. The same can be said of the defendants in the present case. The defendants here, as the defendant in Industries, Inc., can preserve the right to have appellate review of all trial court proceedings by duly entered exceptions on appeal from the final judgment. All reasons advanced by our Supreme Court in Industries, Inc. against permitting fragmentary, premature, and unnecessary appeals, apply with equal force in the present case.
The decision of this court in Digsby v. Gregory, 35 N.C.App. 59, 240 S.E.2d 491 (1978), insofar as it recognized the right of immediate appeal from an order granting a partial new trial on the issue of damages only, is overruled. The decision in that case was rendered prior to the decision of our Supreme Court in Industries, Inc. v. Insurance Co., supra, which we find controlling. We now hold that the language in G.S. 1-277(a) which provides that "[a]n appeal may be taken from every judicial order or determination of a judge of a superior or district court . . . which . . . grants or refuses a new trial," does not apply to an order which grants only a partial new trial.
For the reasons stated, this appeal is
Dismissed.
HEDRICK and CARLTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331849/ | 248 Ga. 793 (1982)
285 S.E.2d 714
SHERRER et al.
v.
HALE et al.
38037.
Supreme Court of Georgia.
Decided January 7, 1982.
Rehearing Denied January 26, 1982.
Cohen, Mackin, Pollock, Cooper & Comolli, John M. Comolli, Dennis M. Mackin, for appellants.
Archer D. Smith III, John M. Leiter, for appellees.
HILL, Presiding Justice.
This is an appeal from the trial court's grant of an interlocutory injunction, ordering the reversion of Pathology Associates of Marietta, P. C., into a traditional business corporation and the reinstatement of Mr. Henry Hale's shareholder interest in that corporation.
Pathology Associates of Marietta, P. C. [hereinafter PAM, P. C.], was incorporated as a professional corporation under Code Ch. 84-54 in 1972 by Dr. Webster A. Sherrer, a licensed physician and specialist in pathology, who acquired all 100 shares of the corporation's stock. The corporation operated a licensed clinical laboratory under the supervision of Dr. Sherrer which performed various tests and microscopic examinations on human tissue and specimens submitted by area physicians.[1] The results of the tests or examinations, and sometimes diagnoses and recommendations, were then transmitted by Dr. Sherrer to the submitting physician.
Due in part to financial difficulties experienced by the company, in May of 1976 Dr. Sherrer amended the articles of incorporation and converted the business from a professional corporation into a traditional business corporation, Pathology Associates of Marietta, Inc. [PAM, Inc.], in order to permit his business advisor, Mr. Henry Hale, a nonphysician, to become a shareholder.[2] Mr. Hale purchased 50 shares of stock from Dr. Sherrer for $3332.00 (one-half of the corporation's book value) and received a bill of sale for the stock. Neither Dr. Sherrer nor Mr. Hale received stock certificates and *794 neither interest was listed in the corporation's stock records. A shareholder's agreement was executed which empowered Dr. Sherrer to unilaterally repurchase Mr. Hale's stock at any time within four years by paying Mr. Hale one-half of the corporation's book value. Dr. Sherrer was elected president of the corporation and Mr. Hale was elected a director and the corporation's secretary.
Contemporaneous with the conversion of the professional corporation into a business corporation, Dr. Sherrer incorporated a professional corporation in Dalton, Georgia, for tax and pension advantages. Dr. Sherrer then moved to Dalton, executed an exclusive employment agreement with his Dalton corporation and accepted a position with a local hospital. All compensation earned by Dr. Sherrer from the hospital and PAM, Inc., was paid to his Dalton corporation.
In Dr. Sherrer's absence, Mr. Hale assumed the marketing and management responsibilities for PAM, Inc., and Dr. Louis Rodriguez, M. D., was retained to replace Dr. Sherrer in the Marietta laboratory. Dr. Rodriguez continued the practice of sometimes issuing to requesting physicians diagnoses and recommendations based on the laboratory findings. It is unclear whether Dr. Rodriguez was performing as an employee of the corporation or an independent contractor, although the evidence does show that PAM, Inc., had medical malpractice insurance, diagnoses were issued on corporate stationary, and the corporation billed and collected the fees for Dr. Rodriguez's services.
In 1979, Dr. Sherrer left Dalton, returned to Marietta and replaced Dr. Rodriguez at PAM, Inc., continuing to be paid only through his Dalton professional corporation. Although discussions were held between Dr. Sherrer and Mr. Hale concerning the repurchase of Mr. Hale's stock by Dr. Sherrer, Dr. Sherrer's unilateral repurchase rights contained in the shareholder's agreement expired without being exercised.
In January, 1981, Dr. Sherrer retained counsel to assist him in negotiating the repurchase of Mr. Hale's stock. His attorney informed him that, by issuing diagnoses, PAM, Inc., was engaged in the practice of medicine and that a corporation could practice medicine only in the form of a professional corporation. Thus, according to the attorney, the conversion of the company in 1976 into a business corporation was void and it remained a professional corporation. Furthermore, advised the attorney, shares in a professional corporation issued or transferred to a person not licensed in the profession being practiced are void. Therefore, according to counsel, Mr. Hale was not legally a shareholder in the corporation.
*795 Acting on this advice, Dr. Sherrer called meetings of the shareholders and directors of PAM, Inc., on February 4, 1981, without giving Mr. Hale notice. At those meetings, Dr. Sherrer declared Mr. Hale's shareholder's interest void and removed him as secretary of the corporation. On February 5, Dr. Sherrer filed an amendment to the articles of incorporation converting the company back into a professional corporation. Mr. Hale received notice of these actions in a letter from Dr. Sherrer's attorney dated February 6, 1981, Mr. Hale has received no refund or other compensation for his interest in the corporation.
Mr. Hale then filed suit, individually and as a shareholder's derivative action, against Dr. Sherrer and PAM, P. C., seeking, inter alia, an injunction prohibiting interference with his status as a shareholder, director and officer of the corporation. After a hearing, the trial court ruled that equitable relief was necessary to prevent irreparable harm to Mr. Hale and issued an interlocutory injunction declaring Dr. Sherrer's actions at the corporate meetings of February 4, 1981, void and ordering the reversion of PAM, P. C., into a business corporation. Dr. Sherrer appeals the granting of the temporary injunction.
Dr. Sherrer contends that, under the statutory definition of "clinical laboratory," Code Ann. § 84-5502 (d),[3] there are two different types of clinical laboratories in operation. Some, according to Dr. Sherrer, are "assay" laboratories which merely conduct tests and examinations and report the results back to the requesting physician. Others, "diagnostic" laboratories (such as the Marietta laboratory here in issue), make diagnoses and recommendations which are then given to the requesting physician. Dr. Sherrer argues that although "assay" laboratories (which do not engage in the practice of medicine) may be owned by nonphysicians and may be operated as business corporations, "diagnostic" laboratories (which by statutory definition, Code Ann. § 84-901,[4] do engage in the practice of medicine) may only be owned by physicians and may only be operated as professional corporations. (Quare: Does a laboratory which makes diagnoses and recommendations to requesting *796 physicians hold itself out "to the public" within the meaning of Code Ann. § 84-901?) Mr. Hale argues, inter alia, that because at least thirteen clinical laboratories with nonphysician shareholders are licensed by the Department of Human Resources, nonphysician ownership of clinical laboratories engaged in the practice of medicine is authorized by the Clinical Laboratory Act, Code Ch. 84-55. We find it both unnecessary and inappropriate to rule on this issue in this case.
Dr. Sherrer also argues that because Mr. Hale has an adequate remedy at law (money damages), injunctive (equitable) relief was not authorized. As is often the case, in order to determine whether equitable relief is authorized, we must first ascertain what rights, if any, the plaintiff has which warrant protection. Thus, we defer this question until after consideration of the merits.
1. Dr. Sherrer urges that since their inception PAM, P. C., and PAM, Inc., have been engaged in the practice of medicine, and because, he contends, only a medical professional corporation can be involved in the practice of medicine, the 1976 conversion of the company into a business corporation was void. Assuming that by issuing diagnoses and recommendations of treatment to requesting physicians, Drs. Sherrer and Rodriguez were engaged in "the practice of medicine," Code Ann. § 84-901, and assuming that the corporation therefore was engaged in the practice of medicine, see Pearle Optical v. State Bd. of Examiners, 219 Ga. 364, 375-76 (133 SE2d 374) (1963), we do not agree that the 1976 conversion of the company from a professional corporation into a business corporation was void.
Although it is true that a business corporation cannot lawfully practice one of the so-called "learned professions," Pearle Optical v. State Bd. of Examiners, supra, 219 Ga. at 375, it does not follow that a corporation violating this prohibition is "void." Dr. Sherrer argues that the practice of medicine by a business corporation is against the public policy of the state and therefore the 1976 conversion to PAM, Inc., must also be void as being against public policy. If this were so, any corporation which entered into a usurious loan, a gambling contract, a limitation of liability, or an employment contract containing an overbroad restrictive covenant, which are against *797 public policy, would become void. It is not against the public policy of this state for a professional corporation to convert to a business corporation; it is against the public policy for a business corporation to perform acts which constitute the practice of medicine. Thus, although the acts of a corporation may be declared void as illegal and against public policy, and in some instances such acts may be enjoined, Pearle Optical v. State Bd. of Examiners, supra, the corporation itself does not cease to be a corporation. If such a corporation were void, as Dr. Sherrer contends, it could not be punished for or prohibited from its improper conduct.
The trial court found that PAM, P. C., was effectively converted into a regular business corporation in 1976, and that Mr. Hale was a 50% shareholder and a director of the corporation. We therefore agree with the trial court that Mr. Hale was entitled to notice prior to any shareholder's and director's meetings, and any amendment to the corporation's articles of incorporation, Code Ann. §§ 22-604 (a), 22-709 (b), 22-902 (b) (2), just as Dr. Sherrer would be as to meetings called by Mr. Hale.
2. Directing our attention now to the question of whether the injunction was improperly granted because Mr. Hale had an adequate remedy at law (money damages), the trial court found, inter alia, that Dr. Sherrer had waived this defense in the shareholder's agreement.[5] Dr. Sherrer argues that the waiver provision is ineffective because the question of whether an adequate an adequate remedy at law exists determines if the trial court has equity jurisdiction and, under Code Ann. § 24-112, subject-matter jurisdiction cannot be conferred on the trial court by agreement of the parties.
Although the agreement of the parties is entitled to consideration, we agree that the parties cannot by waiver or consent confer equity jurisdiction on a court where it is otherwise without jurisdiction. E.g., Gray v. Gray, 229 Ga. 460, 461 (2) (192 SE2d 334) (1972); Sweatman v. Roberts, 213 Ga. 112 (97 SE2d 320) (1957); Code Ann. § 24-112. We also agree that equitable relief is improper if the complainant has a remedy at law which is "adequate," i.e., "as *798 practical and as efficient to the ends of justice and its prompt administration as the remedy in equity." Middlebrooks v. Lonas, 246 Ga. 720, 721 (272 SE2d 687) (1980). See also Code Ann. § 37-120. However, in this case Mr. Hale is without an adequate remedy at law because he is currently being deprived of his investment and his elected positions as director and secretary of a corporation in which he owns a one-half interest. The loss of these positions and their influence over the future direction of the corporation in which he has an interest is not compensable in damages. See Johnson v. Tribune-Herald Co., 155 Ga. 204 (3) (116 S.E. 810) (1922). The direction to be taken by PAM, Inc., is important to Mr. Hale because Dr. Sherrer argues that PAM, Inc., could be operated as an "assay" laboratory without violating the Clinical Laboratories Act, supra, and that Dr. Sherrer could provide separate diagnostic reports to be billed and paid separately. However PAM, Inc., is to be operated, Mr. Hale has a shareholder's interest in its future equal to that of Dr. Sherrer. The trial court did not err in granting equitable relief.
3. Whether or not warranted at the final hearing, the trial court did not err in reserving until that hearing the question of attorney fees. Code Ann. §§ 20-1404, 22-615 (d). Although Mr. Hale owned 50% of the stock, and as Dr. Sherrer contends, a shareholder's derivative action would most often be brought by a minority shareholder, Mr. Hale was not a majority stockholder and he was treated as if he were a nonexistent stockholder.
Judgment affirmed. All the Justices concur.
NOTES
[1] The laboratory was licensed by the Georgia Department of Human Resources under the Clinical Laboratory Act, Code Ch. 84-55, and by the Center for Disease Control under the Clinical Laboratories Improvement Act of 1976, 42 USC § 263a.
[2] A nonphysician cannot be a shareholder in a medical professional corporation, except under limited circumstances prescribed by law. Code Ann. § 84-5405.
[3] Code Ann. § 84-5502 (d) provides: "`Clinical laboratory' means a facility for the biological, microbiological, serological, chemical, immunohematological, hematological, biophysical, cytological, pathological, or other examination of materials derived from the human body, for the diagnosis of, recommendation of treatment of, or for the purposes of providing information for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, man. . . ." (Emphasis supplied.)
[4] Code Ann. § 84-901 provides: "The terms `practice of medicine,' `to practice medicine,' `practicing medicine,' and `practice medicine,' as used in this Chapter, are hereby defined to mean holding one's self out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever.. . ." (Emphasis supplied.)
[5] The shareholder's agreement provides: "The parties hereby declare that it is impossible to measure in money the damages that will accrue to a party to this Agreement . . . by reason of a failure to perform any of the obligations under this Agreement. Therefore, if a party to this Agreement . . . shall institute any action or proceeding to enforce the provisions of this Agreement, any person (including the Company) against whom such action or proceeding is brought hereby waives the claim or defense therein that such party . . . has or have an adequate remedy at law, and such person shall not urge in any such action or proceeding the claim or defense that such remedy at law exists." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331853/ | 159 Ga. App. 805 (1981)
285 S.E.2d 764
DOWDY
v.
THE STATE.
62335.
Court of Appeals of Georgia.
Decided October 5, 1981.
Bob Reinhardt, for appellant.
H. Lamar Cole, District Attorney, Walter New, Assistant District Attorney, for appellee.
CARLEY, Judge.
Appellant was indicted for ten counts of theft by taking. She was found guilty on three counts and acquitted on the remaining seven. She appeals.
1. Over appellant's objection that the proper foundation had not been laid, a nonexpert witness for the state was permitted to testify that certain documents contained appellant's handwriting. The admission of this testimony is enumerated as error.
"Proof of handwriting may be resorted to in the absence of direct *806 evidence of execution. In such case, any witness shall be competent to testify as to his belief, who shall swear that he knows or would recognize the handwriting. The source of his knowledge shall be a question for investigation, and shall go entirely to the credit and weight of his evidence." Code Ann. § 38-708. It is unclear from the transcript but apparently the witness' testimony in the instant case was not based upon a general familiarity with appellant's handwriting. Rather, it appears that the testimony was predicated upon the witness' comparison between admitted exemplars of appellant's handwriting and the documents in question. If so, it was error to admit the testimony as coming within the ambit of Code Ann. § 38-708. See Notis v. State, 84 Ga. App. 199, 202 (2) (65 SE2d 622) (1951); Copeland v. State, 66 Ga. App. 142 (17 SE2d 288) (1941). However, even assuming that the testimony was erroneously admitted no reason for reversal is shown. The documents identified by the witness as containing appellant's handwriting were relevant only to those counts of the indictment of which appellant was acquitted. Therefore, error, if any, in the admission of the testimony was clearly harmless. See Harris v. State, 11 Ga. App. 137, 141 (4) (74 S.E. 895) (1912).
2. During the course of direct examination by the state of two of its witnesses appellant interposed objections to questions as "leading." The objections were overruled and the witnesses were permitted to answer both questions. Appellant enumerates as error the trial court's failure to sustain her objections to the two "leading" questions. Assuming that the questions were leading, the transcript demonstrates no abuse of the trial court's wide discretion in permitting such questioning. See Shouse v. State, 231 Ga. 716, 719 (11) (203 SE2d 537) (1974). There was no reversible error.
3. Appellant enumerates as error the sustaining of the state's objections to three questions propounded to one of its witnesses on cross examination. Appellant asserts, in essence, that by sustaining the state's objection the trial court denied appellant her right to a thorough and sifting cross examination and this constituted reversible error. Our review of the transcript demonstrates that the first question the witness was not permitted to answer had apparent reference to documents relevant only to the counts of which appellant was acquitted by the jury. See Harris v. State, 11 Ga. App. 137, 141 (4), supra. The second question asked the witness to relate what a co-worker had told her. This question called for an obviously inadmissible hearsay response. Furthermore, the co-worker was herself a subsequent witness in the case and appellant was given and took the opportunity to question her concerning her conversations with the original witness. See Freeman v. State, 230 Ga. 85, 86 (1) (195 *807 SE2d 416) (1973). The third question also essentially called for the witness to give a hearsay answer to what "they" told her about certain matters. After the objection to the question was sustained, appellant was properly permitted to ask the witness what she knew about those matters. Perdue v. State, 135 Ga. 277, 278 (10) (69 S.E. 184) (1910). There was no reversible error in the exclusion of the witness' answers for any reason urged on appeal.
4. A Jackson v. Denno hearing was held to determine whether certain statements made by appellant were freely and voluntarily given. The statement had been made by appellant to the officer who had conducted a polygraph examination of appellant but after the examination had been concluded. The trial court ruled that appellant's post-polygraph statement, including an admission that she had taken the money in issue, was admissible. The trial court's ruling in this regard is not enumerated as error. The state, however, rested its case in chief against appellant without introducing evidence of appellant's incriminating statement. Appellant took the stand in her own defense and denied telling anyone that she had taken the money. Over appellant's objection, the state was permitted to call as its witness the officer to whom appellant had made the statement. This witness testified that appellant had stated to him that she had taken the money because "her daughter had health problems and . . . she had no insurance to cover the problems." Appellant enumerates as error the admission into evidence of this witness' testimony concerning appellant's incriminating statement.
The sole reason advanced by appellant in support of this enumeration is that it resulted in the admission of evidence concerning the results of her polygraph examination when there was no stipulation that those results would be admissible (State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977)) and when those results were inconclusive. Porterfield v. State, 150 Ga. App. 303 (257 SE2d 372) (1979). The transcript reveals that all evidence concerning the facts surrounding appellant's polygraph examination was elicited or offered by appellant herself in an apparent effort to demonstrate that her admission to taking the property was not freely and voluntarily given. See generally Powers v. State, 150 Ga. App. 25, 27 (6) (256 SE2d 637) (1979). The state made no attempt whatsoever to introduce any evidence concerning the fact that appellant had undergone a polygraph test or the results thereof. The only testimony elicited by the state from its rebuttal witness was that appellant had admitted taking the money. As discussed above, the trial court, in a ruling unappealed from, had determined that, under all the circumstances, appellant's post-polygraph statement to the witness was freely and voluntarily given. We find no error for any reason *808 urged on appeal in the admission of the rebuttal witness' testimony. See Johnson v. State, 244 Ga. 295, 297 (5) (260 SE2d 23) (1979); McGregor v. State, 119 Ga. App. 40 (165 SE2d 915) (1969).
Judgment affirmed. Deen, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331855/ | 285 S.E.2d 892 (1982)
STATE of West Virginia
v.
Clyde Junior STOUT.
No. 14757.
Supreme Court of Appeals of West Virginia.
January 15, 1982.
Dailey & Miller and Lawrance S. Miller, Jr., Kingwood, for appellant.
Chauncey H. Browning, Atty. Gen. and Paula Dean Maas, Asst. Atty. Gen., Charleston, for appellee.
NEELY, Justice:
The appellant, Clyde Junior Stout, was convicted in the Circuit Court of Preston County of third degree sexual assault. On the basis of the presentence report, the appellant was sentenced to confinement in the West Virginia State Penitentiary for a period of not less than one nor more than five years.
The appellant lived with a woman named Mary Cuppett and her four children for approximately one year. On 2 January *893 1979 the appellant and Mrs. Cuppett terminated their relationship, and the appellant left her home. That evening, Mrs. Cuppett complained to an officer of the Terra Alta Police Department that the appellant had sexually assaulted her ten-year-old daughter, Janet Leigh Kight, on 16 October 1978. A warrant for the appellant's arrest was issued on 10 January 1979; he learned of the warrant and turned himself in on 15 January 1979. Taken before a magistrate, the appellant indicated that he had counsel to represent him. The preliminary hearing was then scheduled for 13 February 1979.
On 13 February 1979 attorney Clark Frame called the magistrate's office, told them that he represented the appellant, and requested a continuance because he could not be at his client's preliminary hearing. The magistrate denied the request and proceeded with the preliminary hearing in the absence of the appellant's attorney. At the conclusion of the hearing, the magistrate found probable cause and bound the appellant over to the Grand Jury which indicted him for first, second and third degree sexual assault on 13 March 1979.
After pleading not guilty to all three counts the appellant was tried and found guilty of third degree sexual assault. The State's case consisted of testimony from the investigating officer, an examining doctor, and the victim. The defense presented only a doctor who had given the victim a quick examination and the appellant who denied everything. The sole issue on appeal is whether holding the preliminary hearing in the absence of the appellant's attorney constituted reversible error.[1]
In West Virginia a preliminary hearing is not constitutionally required. State ex rel. Rowe v. Ferguson, W.Va., 268 S.E.2d 45 (1980). However, when a preliminary hearing is held it is regarded as a "critical stage" at which a defendant has a right to counsel under the Sixth Amendment. Spaulding v. Warden, West Virginia State Penitentiary, W.Va., 212 S.E.2d 619 (1975).
Since the appellant had a constitutional right to counsel during his preliminary hearing, holding that hearing in the absence of counsel was error. We do not, of course, pass upon the propriety of counsel's failure to appear. Under our doctrine of harmless constitutional error, the State can avoid a reversal only by a showing that the error was harmless beyond a reasonable doubt. See State v. Boyd, W.Va., 233 S.E.2d 710 (1977).
In State v. Bradley, W.Va., 260 S.E.2d 830 (1979), this Court found the failure to provide counsel at a preliminary hearing to be harmless error. The defendant had shot and killed a man with whom he had a long running feud. Since there were many witnesses to the shooting and since the defendant made a voluntary confession shortly after being arrested, the only purpose of the preliminary hearing was to inform the defendant of his rights. Using the criteria set out in Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), we found the absence of counsel to be harmless error because there was little that an attorney could have done. In Coleman the United States Supreme Court had noted that the advantage of having an attorney at a preliminary hearing was that the attorney could avert a finding of probable cause through cross-examination of witnesses, could preserve testimony of witnesses who become unavailable at trial, could discover the State's case, and could present arguments for psychiatric examinations or bail. Id. at 9, 90 S.Ct. at 2003.
On the record before us there is no indication concerning what transpired at the preliminary hearing. Hence we are unable to apply the Coleman analysis to the facts in this case. Therefore, like the Court in Coleman, we must remand for further proceedings to determine whether the absence *894 of counsel at the preliminary hearing was harmless error. By way of guidance to the lower court we note that, should it find that presence of counsel would have aided discovery, that shortcoming was corrected by the appellant's subsequent discovery motions. See also State ex rel. Rowe v. Ferguson, W.Va., 268 S.E.2d 45, 50 (1980).
We remand this case for a hearing on the limited issue concerning the preliminary hearing. Should the court find that the error was harmless, the verdict will stand; should it find that the error was not harmless, and that the disadvantage which the appellant suffered can be corrected, the appellant will be afforded a new trial. Cf. State v. Lawson, W.Va., 267 S.E.2d 438 (1980) (new trial in a statutory rape case dependent on blood tests to determine paternity of victim's child). If the error was not harmless and the disadvantage cannot be corrected by according him a preliminary hearing and a new trial the appellant shall be discharged.
Remanded.
NOTES
[1] There were other assignments of error, namely: an erroneous denial of a motion for change of venue, denial of reasonable time to prepare a defense, lack of evidence to support a jury instruction, erroneous denial of a motion for a mistrial, and insufficient evidence to support the verdict. However, a review of the record makes it clear that they are frivolous and consequently not fairly raised. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331840/ | 285 S.E.2d 852 (1982)
STATE of North Carolina
v.
Sharon Johnston BRACKETT.
No. 8126SC486.
Court of Appeals of North Carolina.
January 19, 1982.
*855 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.
Paul L. Pawlowski, Charlotte, for defendant-appellant.
WEBB, Judge.
The defendant has brought forward and argues 24 assignments of error. In her first assignment of error, the defendant challenges the overruling of her motion to dismiss because she was not tried within 120 days of the day on which she was indicted. G.S. 15A-701(al) provides in part:
(al) ... the trial of a defendant charged with a criminal offense who is... indicted, on or after October 1, 1978, and before October 1, 1983, shall begin within the time limits specified below:
(1) Within 120 days from the date the defendant is ... indicted ...
* * * * * *
(b) The following periods shall be excluded in computing the time within which the trial of a criminal offense must begin:
* * * * * *
(7) Any period of delay resulting from a continuance granted by any judge if the judge granting the continuance finds that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial and sets forth in writing in the record of the case the reasons for so finding.
The defendant was indicted on 9 June 1980. On 18 September 1980 the State made a written motion to have the case continued until 8 October 1980 and to exclude this period of time pursuant to G.S. 15A-701(al)(b)(7). The State showed in support of this motion that the court had peremptorily set two cases for trial, one to commence on 29 September 1980 and one on 6 October 1980, that the same assistant district attorney who was to handle the instant case was to handle the case set for 29 September 1980, and the case set for 6 October 1980 was scheduled for trial in the same courtroom as the instant case. The State further showed that the instant case would involve a protracted trial, there being the testimony of three expert witnesses and approximately five other persons. The court found that the defendant was not in custody while the defendants in the two cases which had been peremptorily set were in jail, and that the ends of justice served by granting the continuance outweighed the best interests of the public and the defendant in a speedy trial. The court ordered the case continued from 29 September 1980 until 27 October 1980 and excluded that period of time in computing the time in which the defendant's trial must begin.
We hold the court's findings of fact were supported by the evidence and there was no error in excluding the time between 29 September 1980 and 27 October 1980 from the time in which defendant's trial was required to begin. The defendant's first assignment of error is overruled.
In her second assignment of error the defendant argues the court should have excluded the findings of two fire investigators who testified for the State. Burt Christopher, III was employed by the Charlotte *856 Fire Department as a fire investigator. Allen Lee Blackwelder was employed by a private company that investigated fires for insurance companies. Mr. Christopher and Mr. Blackwelder investigated the fire in the instant case. On 6 June 1980 the defendant made a request for voluntary discovery. The State did not furnish the written report of either investigator to the defendant pursuant to the request for voluntary discovery. On 25 September 1980 the defendant made a motion for the production of these documents. Approximately one month prior to the trial of the case, Judge C. E. Johnson ordered the State to furnish a copy of Mr. Christopher's report to the defendant but refused to require the State to furnish the defendant with a copy of Mr. Blackwelder's report. The State furnished the defendant with a copy of Mr. Blackwelder's report during the trial. The defendant argues that it was error requiring a new trial for the State not to furnish her with the Christopher report until approximately one month prior to the trial and not to furnish the Blackwelder report until the time of trial.
The defendant contends she was entitled to have the reports pursuant to G.S. 15A-903(d) and (e) which provide:
(d) Documents and Tangible Objects. Upon motion of the defendant, the court must order the solicitor to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, tangible objects, or copies or portions thereof which are within the possession, custody, or control of the State and which are material to the preparation of his defense, are intended for use by the State as evidence at the trial, or were obtained from or belong to the defendant.
(e) Reports of Examinations and Tests. Upon motion of a defendant, the court must order the prosecutor to provide a copy of or to permit the defendant to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, or copies thereof, within the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecutor. In addition, upon motion of a defendant, the court must order the prosecutor to permit the defendant to inspect, examine, and test, subject to appropriate safeguards, any physical evidence, or a sample of it, available to the prosecutor if the State intends to offer the evidence, or tests or experiments made in connection with the evidence, as an exhibit or evidence in the case.
G.S. 15A-904(a) provides:
(a) Except as provided in G.S. 15A-903(a), (b), (c) and (e), this Article does not require the production of reports, memoranda, or other internal documents made by the prosecutor, law-enforcement officers, or other persons acting on behalf of the State in connection with the investigation or prosecution of the case, or of statements made by witnesses or prospective witnesses of the State to anyone acting on behalf of the State.
G.S. 15A-903(e) has no application to this case. It deals with reports of tests, examinations, or experiments and with physical evidence which the State intends to offer into evidence. No such evidence was offered by Mr. Christopher or Mr. Blackwelder. In her brief the defendant contends Mr. Christopher's report was made in conjunction with the police and prosecution. If the statements were made for the prosecutor in preparation for the case they were not discoverable under G.S. 15A-903(d). See State v. Jackson, 302 N.C. 101, 273 S.E.2d 666 (1981) and State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). The record is not clear as to the purposes for which the two reports were prepared. We hold the court did not abuse its discretion under G.S. 15A-910(4) in allowing the defendant to have the Blackwelder report at the trial and allowing both witnesses to testify.
The defendant argues in her third assignment of error that the court erred in allowing testimony of the fire insurance *857 that was on the house. Although the defendant was not tried for fraudulently burning the house, we hold this evidence was admissible to show motive on the part of the defendant. If evidence is relevant to prove the commission of a crime it is not made incompetent because it proves the commission of another crime so long as its only relevancy is not to prove the character of the defendant or her disposition to commit the crime with which she was charged. See 1 Stansbury's N.C.Evidence § 91 (Brandis rev. 1973). The defendant also contends the court erred by not giving a limiting instruction at the time the testimony was elicited. No request for a limiting instruction was made. The defendant's third assignment of error is overruled.
The defendant next assigns error to a ruling of the court during the cross-examination of a witness. The witness had previously testified at a probable cause hearing and his testimony had been recorded. The court would not allow the defendant to play this recording while the witness was on the witness stand. We find no error in this. We believe the court was correct in limiting counsel to questions to the witness while the witness was being cross-examined. The defendant did not offer this recording to impeach the witness when the defendant was putting on her evidence. This assignment of error is overruled.
In her fifth assignment of error the defendant contends there was insufficient evidence to qualify either Mr. Christopher or Mr. Blackwelder as an expert in the cause and origin of fires. An expert witness is a person who is better qualified than the jury to form an opinion from facts in evidence. See 1 Stansbury's N.C.Evidence § 132 (Brandis rev. 1973). In the instant case each witness testified that he had several years' experience investigating fires and had attended several schools as to the origin of fires. We believe this was evidence from which the court could conclude each of the two witnesses was better able than the jury to form an opinion as to the cause of the fire. The defendant's fifth assignment of error is overruled.
In her sixth assignment of error the defendant contends the two expert witnesses should not have been allowed to testify that in their opinions the fire was not caused by electricity. She argues that neither witness had been qualified as an expert in electricity. It was not necessary for either witness to be an expert in electricity to form an opinion that the fire was not electrically caused. This assignment of error is overruled.
In her seventh assignment of error the defendant contends that it was error to allow each expert to testify that he had observed a burn pattern on the rug and in his opinion it had been caused by gasoline on the rug. We believe that the training and experience of each witness qualified him to testify as to his opinion on this subject. The defendant's seventh assignment of error is overruled.
In her eighth assignment of error the defendant challenges the two experts being allowed to give their opinions as to the origin of the fire. This assignment of error is overruled.
In her ninth assignment of error the defendant challenges the testimony of an employee of the Mecklenburg County Tax Supervisor's office who testified that he appraised the property in 1974 and in his opinion the building on the property was worth $4,520.00. The evidence showed the witness was familiar with the property upon which he put a value and had such knowledge and experience as to enable him to intelligently put a value on it. He did not have to qualify as an expert. See 1 Stansbury's N.C.Evidence § 128 (Brandis rev. 1973). The defendant relies on Manufacturing Company v. R.R., 222 N.C. 330, 23 S.E.2d 32 (1942); Hamilton v. R.R., 150 N.C. 193, 63 S.E. 730 (1909); and Ridley v. R.R., 124 N.C. 37, 32 S.E. 379 (1899). We believe these cases are distinguishable from the instant case. In each of those cases it was the tax listing which was offered in evidence. In this case the person who did the appraisal testified and was subject to cross-examination. *858 The fact that it had been several years prior to the trial that he made the appraisal would go to its weight.
The defendant next assigns error to the failure of the court to dismiss at the close of the State's evidence. The defendant put on evidence and thus waived the exception brought forward by this assignment of error. See G.S. 15-173.
In her eleventh assignment of error the defendant argues the court erred in its evidentiary rulings. When the defendant was testifying, the court excluded testimony by her that a neighbor, Robert G. Massey, had made threats to her and her family and had fired a gun at her property. Testimony of her husband as to threats by Mr. Massey to their family was also excluded. Mr. Massey was called as a witness by the defendant and the court sustained objections to testimony of Mr. Massey that he had been convicted of communicating threats to the defendant and her family. The defendant then called a witness who would have testified as to Robert Massey's bad character and reputation. The court excluded this testimony. The defendant contends it was error to exclude this testimony. She argues, relying on State v. Britt, 42 N.C.App. 637, 257 S.E.2d 468 (1979), that this testimony should have been allowed to prove someone else burned her dwelling. We believe this evidence was properly excluded. Evidence that someone else had a motive and opportunity to commit the offense is not relevant to prove he did so rather than the defendant. See State v. Jenkins, 292 N.C. 179, 232 S.E.2d 648 (1977). The defendant's eleventh assignment of error is overruled.
In her twelfth assignment of error the defendant argues it was error to exclude testimony by her that she liked her home, children, and neighborhood; by her husband that he and his wife had a loving marriage, that his wife had a good relationship with their neighbors, that his wife had no intention of leaving their house; and by her brother as to whether the defendant and her husband had a good marriage. She argues that this evidence should have been admitted to show her feeling for her home and to rebut the State's evidence that she had a motive for burning the house. We hold that the defendant, by her own testimony and by the testimony of other witnesses, offered sufficient evidence of her attitude toward her house and her neighbors and the status of her marriage so that she was not prejudiced by the exclusion of this testimony. The defendant's twelfth assignment of error is overruled.
In her thirteenth assignment of error the defendant argues that the court should not have excluded testimony by her husband as to the cost of repairs to the building. She contends this testimony should have been allowed to corroborate his testimony that in his opinion the building was worth $35,000.00. The defendant's husband testified without objection that in his opinion the building was worth $35,000.00. We hold that exclusion of evidence in corroboration of uncontradicted testimony was harmless. See G.S. 15A-1443.
In her fourteenth assignment of error the defendant contends the court erred in excluding evidence that there had been other fires recently in the neighborhood. We hold evidence of other fires was too conjectural to have probative value in the instant case.
In her fifteenth assignment of error the defendant argues the court should have excluded a prior written statement given to an officer by George Wheeler, Jr., a witness for the State. This written statement was introduced in corroboration of Mr. Wheeler's testimony. The written statement was consistent with his testimony and we hold there was no error in its being received in evidence.
In her sixteenth assignment of error the defendant contends it was error for the court not to declare Robert S. Massey a hostile witness. The defendant called Mr. Massey as a witness. He testified that he lived across the street from the defendant's house and as to his relationship with George Wheeler, Jr. A question was then asked *859 him as to crimes of which he had been convicted, to which an objection was sustained. At that point the defendant's attorney requested that Mr. Massey be declared a hostile witness. There was no indication from Mr. Massey's testimony that he was hostile to the defendant, and we hold the court did not abuse its discretion by refusing to hold he was a hostile witness.
In her seventeenth assignment of error the defendant argues that it was error not to dismiss the case at the conclusion of all the evidence. She contends that there was not sufficient evidence that she burned the house to be submitted to the jury and there was no evidence that she burned it willfully and wantonly. Mr. George Wheeler, Jr. testified for the State that he lived across the street from the defendant and was in his front yard on 6 May 1980. On that day he saw the defendant come from the house, get in her automobile, and "drive fast up the street." A short while later a neighbor told him the house was burning, and he called the fire department. There was testimony that the fire was started by gasoline being ignited inside the house. There was also evidence that the defendant and her clothes had been burned. We believe this is evidence from which the jury could conclude the defendant set the fire. See State v. Moses, 207 N.C. 139, 176 S.E. 267 (1934). This is also evidence from which the jury could conclude the defendant acted willfully and wantonly. The defendant acted willfully if she set fire to the building purposely and deliberately. See State v. Morgan, 136 N.C. 628, 48 S.E. 670 (1904). The evidence allows the conclusion that she acted purposely and deliberately. The act was done wantonly if it was done needlessly, manifesting a reckless indifference to the rights of others. See Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971). The jury could have concluded that the burning of the building was needless and in reckless indifference of the right of the public not to have the building burned. The defendant's seventeenth assignment of error is overruled.
In her eighteenth assignment of error the defendant contends the court erred in the charge by instructing the jury that it was not necessary to prove motive in order to prove a willful and wanton burning but motive or lack of motive is a circumstance to be considered. We believe this is a correct statement. The defendant contends it was error because the court did not apply the law to the evidence in this portion of the charge. The court charged the jury as to the insurance coverage on the house. We believe from this the jury could apply the law as it related to motive.
In her nineteenth assignment of error the defendant contends the court committed error in recapitulating the State's evidence. The court charged the jury that there was a burn pattern on the rug leading to the front door while the evidence showed the burn pattern stopped two feet from the door. The court also stated that the State's evidence showed the defendant was the last one to leave the house. The State's witness said he saw the defendant coming from the house and a short while later he saw the house afire. We believe the court fairly recapitulated the State's evidence.
In her twentieth assignment of error the defendant contends the court, in recapitulating the evidence, should not have told the jury there was evidence that the house was insured for $35,000.00. We have held that this evidence was properly admitted and it was not error for the court to recapitulate this part of the evidence.
In her twenty-first assignment of error the defendant contends the court did not fairly summarize all her evidence. We hold the court fairly summarized the defendant's evidence. This assignment of error is overruled.
In her twenty-second assignment of error the defendant challenges the court's instruction to the jury as to the definition of willfulness and wantoness. The court instructed the jury that in order to convict the defendant they would have to be satisfied beyond a reasonable doubt that she burned the house willfully and wantonly *860 "that is, intentionally and without justification or excuse, without regard for the consequences or the rights of others." The defendant requested a charge on this feature of the case as follows:
"AND THIRD, that she did this wantonly and willfully, that is intentionally and without justification and authority, and needlessly manifesting a reckless indifference to the rights and safety of others."
We hold this portion of the court's charge is correct and in substantial compliance with the request by the defendant. The defendant's twenty-second assignment of error is overruled.
In her twenty-third assignment of error the defendant challenges the charge as regards the testimony of the expert witnesses. The defendant requested the court to instruct the jury that the testimony of the expert witnesses should not be given any greater weight than any other witness. We do not believe it was necessary for the court to charge as requested on this feature of the case. The court charged as to how the jury would consider the testimony of each witness without differentiating between the experts and the other witnesses. In this we find no error.
In her twenty-fourth assignment of error the defendant contends the court erred by not charging, as requested by the defendant, as to how to consider the evidence that George Wheeler, Jr. had been "convicted of fighting and public drunk." There was no showing that Mr. Wheeler had any interest in the case or animosity toward the defendant. We hold the defendant was not prejudiced by the court's failure to give this requested instruction. The defendant's twenty-fourth assignment of error is overruled.
No error.
ROBERT M. MARTIN, J., concurs.
WELLS, J., dissents.
WELLS, Judge, dissenting:
The indictment did not charge, in the alternative, a fraudulent purpose. See G.S. 14-65. I believe the admission of the State's evidence, over defendant's objection, as to insurance on the dwelling and its contents, was prejudicial error which requires a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331858/ | 285 S.E.2d 486 (1981)
STATE of West Virginia ex rel. William C. BROWN
v.
The Honorable A. Andrew MacQUEEN, Judge of the Circuit Court of Kanawha County, West Virginia.
No. 15352.
Supreme Court of Appeals of West Virginia.
December 18, 1981.
*487 Cletus B. Hanley, Charleston, for relator.
Chauncey H. Browning, Atty. Gen., and Richard S. Glaser, Jr., Asst. Atty. Gen., Charleston, for respondent.
McGRAW, Justice:
This is an original proceeding in prohibition. The petitioner seeks to prohibit the Circuit Court of Kanawha County from bringing him to trial on charges of burglary, theft, grand larceny, and buying and receiving stolen goods. He argues that a grant of immunity given in exchange for his testimony at the trial of a defendant charged with a related offense precludes his prosecution. Although we find partial merit in the petitioner's argument, we deny the writ because prohibition is not a proper proceeding in which the petitioner should initiate his claim of immunity.
In March 1979, a number of rifles were stolen from the Kanawha County residence of Jack E. Sword. In January 1980, a two count indictment was returned against William Brown, the petitioner herein. Count one of the indictment charged the petitioner with the crime of feloniously and burglariously breaking and entering the residence of Mr. Sword and stealing the guns. *488 Count two charged him with feloniously and burglariously entering without breaking into the residence of Mr. Sword and stealing the guns. In September 1980 another two-count indictment was returned against the petitioner, charging him in the first count with grand larceny of the guns, and in the second count with buying, receiving, and aiding in the concealment and transfer of the guns to a person other than their rightful owner. Timothy Cooper was indicted at the same time on these two charges, and Willard Collins was indicted for buying and receiving stolen goods with respect to the same stolen guns.
On February 25, 1981, Willard Collins was brought to trial by the State. At trial the State called Timothy Cooper to testify against Collins. Pursuant to the State's request, the trial court granted immunity to Cooper in exchange for his testimony. Cooper testified that the petitioner sold the stolen guns to Collins, and that Collins knew the guns were stolen at the time he purchased them.
Counsel for Collins, acting under the mistaken belief that the petitioner would testify voluntarily in Collins' behalf, then called the petitioner to the stand. When informed by petitioner's counsel that the petitioner would not testify voluntarily, but would invoke his Fifth Amendment privilege against self-incrimination, counsel for Collins moved the court to grant the petitioner immunity and compel him to testify. Both the prosecuting attorney and counsel for the petitioner objected to this motion.
The trial court, after determining that the petitioner's testimony would be clearly exculpatory and essential to Collins' defense, and that the ends of justice would be promoted by compelling the petitioner to testify, granted immunity to petitioner.[1] However the trial court attempted to limit the immunity given the petitioner by restricting his testimony "to the identity of the transfer or witness of the sale of guns from Cooper to the defendant and the transaction occurring there and any conversations which may have occurred between Cooper and the defendant at the time of the transfer." The petitioner then took the stand and testified that Cooper had sold the stolen guns to Collins after informing Collins that the guns were not stolen.
Thereafter, on August 14, 1981, the prosecuting attorney informed the petitioner of his intention to prosecute the petitioner on the September 1980 indictment charging him with grand larceny and buying and receiving stolen property. The case was subsequently docketed for trial. The petitioner contends that his compelled testimony in Collins' trial precludes his prosecution on the charges contained in both the January 1980 and September 1980 indictments, and requests a writ of prohibition to prevent the circuit court judge to which his case has been assigned from trying him for any crime arising out of the incidents that precipitated the indictments.
The United States Supreme Court has consistently held that in order for a grant of immunity to be constitutionally adequate, the scope of the immunity must be co-extensive with the scope of the Fifth Amendment privilege against self-incrimination. Kastigar v. United States, 406 U.S. 411, 92 S. Ct. 1653, 32 L. Ed. 2d 212, rehearing denied, 408 U.S. 931, 92 S. Ct. 2478, 33 L. Ed. 2d 345 (1972); Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968); Stevens v. Marks, 383 U.S. 234, 86 S. Ct. 788, 15 L. Ed. 2d 724 (1966); Murphy v. Waterfront Com. of New York Harbor, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964); Brown v. United States, 359 U.S. 41, 79 S. Ct. 539, 3 L. Ed. 2d 609, rehearing denied, 359 U.S. 976, 79 S. Ct. 873, 3 L. Ed. 2d 843 (1959); Ullman v. United States, 350 U.S. 422, 76 S. Ct. 497, 100 L. Ed. 511, rehearing denied, 351 U.S. 928, 76 S. Ct. 777, 100 L. Ed. 1457 (1956); Glickstein v. United States, 222 U.S. 139, 32 S. Ct. 71, 56 L. Ed. 128 (1911); American Lithographic Co. v. Werckmeister, 221 U.S. 603, 31 S. Ct. 676, 55 *489 L.Ed. 863 (1911); Counselman v. Hitchcock, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110 (1892).
The Supreme Court first considered the constitutional sufficiency of an immunity statute in Counselman v. Hitchcock, supra. The challenged statute provided that "No... evidence obtained from a party or witness by means of a judicial proceeding ... shall be given in evidence, or in any manner used against him ... in any court of the United States ...." 142 U.S. at 560, 12 S.Ct. at 197, 35 L.Ed. at 113. The Court held that the immunity provided was insufficient because the statute afforded protection only against the use of the specific testimony compelled from the witness under the grant of immunity; protection was not provided against the use of evidence derived from the compelled testimony, and thus did not protect the witness to the same extent that a claim of the privilege against self-incrimination would protect him. 142 U.S. at 564, 12 S.Ct. at 198-99, 35 L.Ed. at 1114. In its opinion the court further said that "a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates." 142 U.S. at 586, 12 S.Ct. at 206, 35 L.Ed. at 1122.
As a result of this language, Counselman was generally regarded to have established a transactional immunity rule. In response to the Counselman decision Congress enacted the Compulsory Testimony Act of 1893, which provided that "no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence ...." Act of February 11, 1893, 27 Stat. 443, 49 U.S.C. § 46. This statute became the model for numerous federal and state immunity statutes. See, e.g., General Appropriation Act of February 25, 1903, 32 Stat. 854, 904; Act of March 2, 1907, 34 Stat. 1246, as amended by the Act of May 9, 1942, 56 Stat. 271, 18 U.S.C. § 682; Immunity Act of 1954, 68 Stat. 745, 18 U.S.C. (Supp.II) § 3486; Fla.Stat.Ann. § 914.04 (1971); Ill.Ann.Stat. ch. 43, § 163d (Smith-Hurd 1945); Kan.Stat. Ann. § 62-301 (1923); Mass.Gen.Laws Ann. ch. 233, § 20C (West 1970); N.Y. Criminal Procedure Law § 50.10 (McKinney 1971).[2]
In 1970, upon a re-examination of the constitutional principles involved in a grant of immunity, Congress enacted a new federal witness immunity statute as part of the Organized Crime Control Act of 1970, 18 U.S.C. § 6002. This statute, which provides that "[n]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case ....", was held to be constitutionally adequate in Kastigar v. United States, 406 U.S. 411, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). In holding this grant of use immunity constitutionally adequate the court limited the broad language of Counselman which had previously been interpreted as requiring transactional immunity.
Our immunity statute, W.Va.Code § 57-5-2 (1966), provides:
In any criminal proceeding no person shall be excused from testifying or from producing documentary or other evidence upon the ground that such testimony or evidence may criminate or tend to criminate him, if the court in which he is examined is of the opinion that the ends of justice may be promoted by compelling such testimony or evidence. And if, but for this section, the person would have been excused from so testifying or from producing such evidence, then if the person is so compelled to testify or produce other evidence and if such testimony or evidence is self-criminating, such self-criminating testimony or evidence shall not be used or receivable in evidence against him in any proceeding against him thereafter taking place other than a prosecution for perjury in the giving of such evidence, and the person so compelled to testify or furnish evidence shall not be prosecuted for the offense in regard to *490 which he is so compelled to testify or furnish evidence, and he shall have complete legal immunity in regard thereto.
This Court discussed the scope of the immunity granted by W.Va.Code § 57-5-2 in the case of State v. Abdella, 139 W.Va. 428, 82 S.E.2d 913 (1954). In Abdella we stated that the statute "is comprehensive, both in taking away the privilege which a witness has [under the United States and West Virginia Constitutions], and in clothing an involuntary witness with complete immunity in regard to all compelled self-incriminating evidence." 139 W.Va. at 444, 82 S.E.2d at 922. Furthermore, we also explained that the Legislature intended by enactment of the statute to come within the holding of the United States Supreme Court in Counselman v. Hitchcock, supra.
Because W.Va.Code § 57-5-2 was drafted in the Counselman transactional immunity mold, and explicitly prohibits prosecution of a witness who has been compelled to testify for the offense to which his testimony relates, the holding of the United States Supreme Court in Kastigar does not affect the scope of our immunity statute. Transactional immunity remains constitutionally adequate.
Most statutes drafted with Counselman transactional immunity in mind parallel the language of the 1893 federal act. However, other jurisdictions with statutes similar in wording to W.Va.Code § 57-5-2 have held that those statutes confer a complete transactional immunity. See, e.g., Ex parte Montgomery, 244 Ala. 91, 12 So. 2d 314 (1943); In re Watson, 293 Mich. 263, 291 N.W. 652 (1940). It is therefore clear, from this Court's prior interpretation of W.Va. Code § 57-5-2, from the interpretation given similarly worded statutes in other jurisdictions, and from the plain language of the statute itself, which provides that "the person so compelled to testify ... shall not be prosecuted for the offense in regard to which he is so compelled to testify ... and he shall have complete legal immunity in regard thereto," that the statute confers upon a witness compelled to testify over his claim of self-incrimination, a complete immunity that precludes subsequent criminal prosecution for any facet of the offense to which his testimony relates. Prosecution of the petitioner for buying, receiving, or aiding in the concealment and transfer of stolen property to a person other than its rightful owner, is therefore precluded by the grant of immunity given by the trial court.
However, since the petitioner's testimony related only to the facts surrounding the transfer of the allegedly stolen guns, the grant of immunity would not preclude his prosecution for burglary or grand larceny. These offenses are separate and distinct from the crime of buying, receiving, or aiding in the concealment or transfer of stolen goods. See State v. Basham, W.Va., 233 S.E.2d 53 (1976); State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955). The petitioner was not compelled to testify about them, and from the record they appear but marginally related to the immunized offense, if indeed they are related at all. Therefore because the immunity granted the petitioner precludes his prosecution only on the charge of buying, receiving, or aiding in the concealment or transfer of stolen goods, he may be brought to trial on the first count of the September 1980 indictment charging him with grand larceny, and on the burglary charges contained in the January 1980 indictment.
Moreover, while it is clear that our immunity statute precludes prosecution of a witness for a criminal offense in regard to which he has been compelled to testify, prohibition is not a proper proceeding in which to initiate the immunity claim. The extraordinary writ of prohibition speaks purely to jurisdictional matters, see State ex rel. Williams v. Narick, W.Va., 264 S.E.2d 851 (1980), and will lie only in a clear case where an inferior judicial tribunal is proceeding without, or in excess of, its jurisdiction, see, e.g., Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925), or where a ministerial body attempts to usurp the jurisdiction of a judicial tribunal. State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 (1965).
*491 A claim of immunity based in W.Va. Code § 57-5-2, however, does not go to the jurisdiction of the circuit court. Rather, a claim of immunity based in W.Va.Code § 57-5-2 is a defense formerly raised by a special plea in bar, see State v. Cox, W.Va., 253 S.E.2d 517 (1979); State v. Sine, 91 W.Va. 608, 114 S.E. 150 (1922), and now properly raised by motion to dismiss. See W.Va.R.Crim.P. 12(a). The merit of the petitioner's claim of immunity therefore must initially be determined by the trial court upon consideration of the petitioner's motion to dismiss. The trial court's ruling on such motion will, of course, be guided by the considerations discussed herein.
For the foregoing reasons the writ of prohibition is denied.
Writ denied.
NOTES
[1] These are the standards recognized by this Court in State v. Haverty, W.Va., 267 S.E.2d 727 (1980).
[2] For an exhaustive list of state and federal immunity statutes, see 8 J. Wigmore, Evidence § 2281 at 495, n.11 (McNaughton Revision 1961). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331860/ | 248 Ga. 765 (1982)
285 S.E.2d 724
McCORD
v.
THE STATE.
38042.
Supreme Court of Georgia.
Decided January 7, 1982.
Tinsley & Emerson, William C. Tinsley II, for appellant.
W. A. Foster III, District Attorney, Penny Udolf, Assistant District Attorney, for appellee.
WELTNER, Justice.
Albert C. McCord was convicted by a jury of the offense of child molestation and sentenced to the penitentiary. He appeals to this court, challenging the constitutionality of Code Ann. § 26-2019, and setting forth other enumerations of error.
The statute in question provides: "A person commits child molestation when he does any immoral or indecent act to or in the *766 presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person." Ga. L. 1968, pp. 1249, 1302; Code Ann. § 26-2019. McCord contends that the term "any immoral or indecent act" is so vague and indefinite that it fails to give to a person of ordinary intelligence fair notice of forbidden conduct.
We disagree. "It is a general principle of statutory law that a statute must be definite and certain in its provisions to be valid, and when it is so vague and indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application, it violates the first essential of due process of law. Hayes v. State, 11 Ga. App. 371 (75 S.E. 523) [1912]." City of Atlanta v. Southern R. Co., 213 Ga. 736, 738 (101 SE2d 707) (1958). The inclusion in a criminal statute of the term "indecent condition or act" has withstood prior assault. Scarborough v. State, 231 Ga. 7 (200 SE2d 115) (1973). The phrase "any immoral or indecent act" in conjunction with the requisite element of the offense that the act be committed "with the intent to arouse or satisfy the sexual desires of either the child or the person" is sufficiently definite. "We find [the statute] to be definite and certain in its meaning. Men of common intelligence would not differ as to the application of its provisions." Anderson v. Little &c. Funeral Home, 242 Ga. 751, 753 (251 SE2d 250) (1978).
McCord next contends that the State failed to prove venue and failed to prove that the offense was committed within four years of the return of the indictment. Venue may be proved by circumstantial evidence. Loftin v. State, 230 Ga. 92, 94 (195 SE2d 402) (1973). From the testimony that McCord's barn was in Douglas County, and that the acts complained of took place there, the jury reasonably could infer venue in Douglas County. Similarly, while the evidence does not contain a precise or an approximate date of the event, it showed that McCord's barn was built in 1977, which is of necessity within four years of the return of the indictment on November 18, 1980. These enumerations are without merit.
Finally, McCord contends that the trial court erred in refusing to give his requested charge that simple battery is a lesser included offense of child molestation.
The case of State v. Stonaker, 236 Ga. 1 (222 SE2d 354), cert. denied, 429 U.S. 833 (1976), while principally known for other precepts, arose upon a conviction of child molestation. The Court of Appeals, in Division 3, found that the failure of the trial court to charge simple battery as a lesser included offense was error. Stonaker v. State, 134 Ga. App. 123 (213 SE2d 506) (1975). On certiorari, we held: "Under the facts of this case we hold that simple battery as defined in Chap. 26-13 of the Criminal Code of Georgia is not a lesser *767 crime included in the crime of child molestation as defined in Chapter 26-20 (Sexual Offenses) of the Criminal Code of Georgia." Stonaker, supra, 236 Ga. at 2. The facts of Stonaker as set out in the Court of Appeals opinion are indistinguishable from those before us. This enumeration also is without merit.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331865/ | 285 S.E.2d 277 (1981)
GLYK AND ASSOCIATES
v.
WINSTON-SALEM SOUTHBOUND RAILWAY COMPANY.
No. 8121SC226.
Court of Appeals of North Carolina.
December 15, 1981.
*278 Badgett, Calaway, Phillips, Davis, Stephens, Peed & Brown by Chester C. Davis, and Weston P. Hatfield, Winston-Salem, for plaintiff-appellant.
Craige, Brawley, Liipfert & Ross by William W. Walker, Winston-Salem, for defendant-appellee.
CLARK, Judge.
GLYK seeks to appeal from the order of the trial court granting a preliminary injunction, which restrains GLYK, its tenants, or its customers from going over or upon lands identified as the western parcel and the southern parcel pending trial on the merits. G.S. 1A-1, Rule 65. A preliminary injunction is a temporary order from which no appeal lies unless the order deprives the restrained party of a substantial right. G.S. 1-277(a) and G.S. 7A-27(d). Pruitt v. Williams, 288 N.C. 368, 218 S.E.2d 348 (1975); Setzer v. Annas, 286 N.C. 534, 212 S.E.2d 154 (1975); Gunkel v. Kimbrell, 29 N.C.App. 586, 225 S.E.2d 127 (1976).
The first question presented is whether GLYK is deprived of any substantial right by the order granting the preliminary injunction to Railway. At the hearing on Railway's motion for preliminary injunction GLYK did not offer evidence. GLYK takes the position that Railway failed in its burden of establishing its right to a preliminary injunction. G.S. 1A-1, Rule 65(b). Setzer v. Annas, supra. This burden required Railway to offer evidence at the hearing on its motion sufficient to satisfy *279 the trial judge that (1) there is probable cause that Railway will be able to establish the rights which it asserts and (2) there is reasonable apprehension of irreparable loss unless injunctive relief is granted or unless interlocutory injunctive relief appears reasonably necessary to protect Railway's rights during the litigation. Pruitt v. Williams, supra. At the hearing Railway offered in evidence 29 deeds, 3 plats, and a "Chart Showing Chain of Title," apparently to the lands claimed by both Railway and GLYK. Railway also offered the affidavit of its Assistant Vice-President, J. W. Hamilton, who averred in substance that Railway had deeds to and was the owner of both the western and southern parcels and was using that property, and that GLYK began trespassing in September 1979 on both parcels and had continued the trespass since that time. In addition Railway called as a witness Harris B. Gupton, a licensed land surveyor, who testified that deeds to Railway encompassed the disputed parcels.
After hearing, Judge Collier granted Railway's motion for preliminary injunction, finding that Railway had shown prima facie title to the parcels in dispute, that GLYK had no easement in the southern parcel, and that GLYK was continually trespassing on Railway's lands. Railway was requested to post a bond of $75,000. Judge Collier based the preliminary injunction on his finding that Railway established prima facie record title and that GLYK was engaged in recurring or continuous acts of trespass. Judge Collier's ruling and injunction is supported by the rule of law that where there is a continuing trespass or wrongful interference with the present right of possession, the court will ordinarily give relief by temporary injunction, pending the action, with such reasonable restrictions as the exigencies of the case may require. Young v. Pittman, 224 N.C. 175, 29 S.E.2d 551 (1944); Conrad v. Jones, 31 N.C.App. 75, 228 S.E.2d 618 (1976); 7 Strong's N.C. Index 3d Injunctions § 13.4 (1977).
After the records and briefs were filed and after hearing in this Court, on 18 October 1981, GLYK filed a Motion to Enlarge Record on Appeal to include the following orders of the trial court:
1. An Order signed by Judge Collier on 15 December 1980, which suspended the temporary injunction as to Electric Supply, Inc., a GLYK tenant, until 31 January 1981, so that its employees and customers would have access to its premises.
2. An Order to Reconsider signed by Judge Collier on 22 January 1981, which directed any Superior Court Judge holding the Courts of the Twenty-First District to hear GLYK's Motion to Reconsider the preliminary injunction of 10 December 1980.
3. An Order signed by Judge Wood on 30 January 1981, which again suspended the temporary injunction as to Electric Supply, Inc., until 15 March 1981 so that it could relocate its business.
4. An Order Staying Preliminary Injunction Pending Appeal signed by Judge Seay on 3 February 1981, after a hearing consisting of oral argument by counsel for GLYK and Railway. The hearing was held on GLYK's Motion for Stay pending appeal made on 12 December 1980. See G.S. 1A-1, Rule 62(c), and Appellate Rules 8 and 36. The order noted that Railway in its answer alleged a continuous trespass by GLYK, its tenants and its tenants' customers without compensation, and that the fair market rental value of the disputed lands was $200 per month. The preliminary injunction of 10 December 1980 was stayed "pending a decision by the appropriate appellate court...." The order further required GLYK to post a stay bond of $1,000. Railway excepted to the stay order and gave notice of appeal. On 4 February 1981 Railway filed with this Court (1) Petition for Writ of Mandamus seeking to have the orders of Judge Wood and Judge Seay vacated, and (2) Petition for Temporary Stay of said orders and Supersedeas. All of the petitions were denied by this Court. Railway has not perfected its appeal from the order of Judge Seay.
In determining whether to allow GLYK's motion to enlarge the record, we have considered the original record on appeal and *280 devoted much time in the examination and study of the many deeds and various maps offered in evidence by Railway at the December 1980 hearing in an attempt to determine if they show title or easements in GLYK to the parcels in dispute. The record on its face, without supporting evidence, reveals none. The wisdom of GLYK in failing to offer evidence at this hearing was questionable. We note that in its appeal brief GLYK argues that it and its various tenants have no access to its building if enjoined from access over the disputed western and southern parcels of land. Yet there is nothing in the original record on appeal to support this argument.
This Court does not ordinarily allow a motion to enlarge the record under Appellate Rule 9(b)(6) if the motion is made during or after oral argument. The circumstances are somewhat unusual in this case because at issue on appeal is an interlocutory order, a temporary injunction issued by the trial court for the purpose of enforcing its equity jurisdiction. Injunction is reversed for extraordinary cases. 43 C.J.S. Injunctions § 2. In this kind of case the Court should not be restricted by rigid application of procedural rules. We allow the motion to enlarge, but in doing so the added orders are accepted for the limited purpose of recognizing that restrictions were imposed to the temporary injunction and that the injunction was stayed pending appeal. The added orders are not to be considered on their merits since they are not at issue on appeal and no evidence has been added to the record in support of the orders.
In light of the enlarged record on appeal, we return to the issue of whether we should entertain this appeal from an interlocutory order, which depends upon whether GLYK has shown that it was deprived of any substantial right. GLYK offered no evidence at the hearing on Railway's motion for temporary injunction. Railway offered evidence of record title, the location of the disputed parcels and the ground, its use and possession of the parcels, and continuing trespass. Under these circumstances, the allegations of ownership, possession, possession by GLYK and trespass by Railway in its pleadings, though sufficient to raise the issue of title at trial, are not sufficient to show that GLYK was deprived of a substantial right by the order granting the temporary injunction.
The orders added to the record on appeal indicate that the injunction deprived one of GLYK's tenants of access to its business premises. The order of Judge Seay staying appeal and requiring a stay bond of only $1,000 indicates that for some reason, not appearing in the record as enlarged, some right or rights of GLYK would be adversely affected if the injunction was not stayed. We can only assume that evidence or information, which does not appear in the record on appeal, was submitted to and considered by the trial judges, but we cannot base on this assumption the finding that GLYK has carried the burden of showing the deprivation of a substantial right.
We concur wholeheartedly in the following statement in Railway's brief: "The Railroad agrees that a preliminary injunction is not a proper device to try title to real property or to oust a party in possession. Freemont v. Baker, 236 N.C. 253, 72 S.E.2d 666 (1952); Jackson v. Jernigan, 216 N.C. 401, 5 S.E.2d 143 (1939)." In the case before us it appears that the issue involving important property rights could best be determined by trial on the merits.
GLYK having failed to show that the preliminary injunction deprived it of any substantial right, the appeal is dismissed. The stay ordered by Judge Seay would expire under Appellate Rule 32 with the mandate issued by this Court twenty days after this opinion has been filed. The injunction has been stayed more than ten months. Since the injunction was entered on 10 December 1980, it was changed to allow access by GLYK's tenant, Electric Supply, Inc., until 15 March 1981, but the stay order of Judge Seay was entered before that date. Electric Supply, Inc. or a successor tenant may be occupying GLYK's building without access upon expiration of the stay. There may be other conditions which have changed since the stay order of *281 3 February 1981 and other rights which would be adversely affected by such abrupt expiration of the stay order. Between the time of filing this opinion and the mandate, it is ordered that GLYK may proceed by motion in the Superior Court, if it so elects, to restrict the preliminary injunction, to stay the injunction pending hearing, or to otherwise proceed to protect its rights, if any, from any inequitable adverse effects of the preliminary injunction.
The appeal is, subject to the foregoing order,
Dismissed.
HEDRICK and HARRY C. MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331866/ | 243 Ga. 448 (1979)
254 S.E.2d 833
CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS
v.
STATHAM et al.
34502.
Supreme Court of Georgia.
Submitted January 26, 1979.
Decided April 5, 1979.
Fritz Albrecht, for appellant.
Beck, Goddard, Owen & Murray, Richard L. Collier, for appellees.
BOWLES, Justice.
Appellees, property owners in Cumberland Subdivision, Spalding County, Georgia, brought suit against the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, hereinafter appellant, seeking to enjoin its construction of a church building in Cumberland Subdivision. They contend that the land in that subdivision is subject to certain recorded restrictive covenants placed on it by the original grantor, John R. Carlisle, and that the building of the church violates these covenants. The trial court found that the building of the church violated the restrictive covenants and issued a permanent injunction prohibiting appellant from erecting any structure not designated and used for single family residential purposes and which did not contain 1,600 square feet of heated living area.
The only covenants relevant to this case are as follows:
"2. No building shall be constructed which does not contain a minimum of 1,600 square feet of heated living area.
"7. No lot shall be divided in any manner but shall *449 remain intact as a single family residential unit, except upon the express written consent of John R. Carlisle.
"10. Exception may be had from these protective covenants by the express written consent of all persons owning a lot covered hereby but exception hereto shall not waive the force and effect of any protective covenant as to future encroachments, which shall also require permission in the same manner."
The trial court found as a matter of fact that the proposed church did not contain any living area and, therefore, its construction violated covenant No. 2 which requires 1,600 square feet of heated living area. The trial court concluded as a matter of law that in covenant No. 7, the grantor retained only the authority to allow further subdivision of the lots, but not the authority to waive the use of the lots as single family residence lots and that, therefore, the building of a church violated this covenant as well since restriction No. 10, the general waiver provision, had not been met.
In determining whether or not the trial court erred in enjoining the appellants, we must keep several important principles in mind:
(1) "It is the general rule that the owner of land has the right to use it for any lawful purpose, and restrictions upon its use must be clearly established and strictly construed." Davis v. Miller, 212 Ga. 836, 837 (96 SE2d 498) (1957). Doubt as to restrictions and use will be construed in favor of the grantee. Voyles v. Knight, 220 Ga. 305 (138 SE2d 565) (1964).
(2) "Restrictive covenants will be construed to carry out the intention of the parties, if that intention can be ascertained from a consideration of the whole instrument." Davis v. Miller, supra, at 837.
(3) The exercise of discretion by the lower court in granting an injunction will not be interfered with in the absence of manifest abuse. Lawrence v. Harding, 226 Ga. 148 (173 SE2d 197) (1969).
(4) Discretion is limited to cases in which there is a conflict in the evidence. "Where there is no material conflict in the evidence, the applicable rules of law cannot be avoided on the basis of discretion." Davis v. Miller, supra, at 840.
*450 In construing covenant No. 7, the trial court had no evidential conflicts to consider but simply made his decision as a matter of law. We conclude that his construction of that covenant was erroneous as a matter of law. There is no basis for breaking that covenant into two parts and holding that the grantor could waive one part and not the other. It is plain that the grantor was reserving in himself the right to waive covenant No. 7 in its entirety and this he did in his deed to appellant.[1] We therefore need not consider whether or not it was error to exclude the grantor's testimony as to his intention in drafting the covenants. Since the grantor waived the right to insist that appellant use its lots for a single family residential unit, the trial court erred in enjoining appellants from erecting any structure not designated and used for single family residential purposes.
With reference to covenant No. 2, the trial court found that the proposed church building did not contain any "living area." Since this determination was factual in nature, it can be overturned only by a showing of manifest abuse of discretion. The burden is on the appellant to show error in the trial court's ruling. Appellant has not even attempted to show that this finding was erroneous much less how it constituted an abuse of discretion. Rather appellant appears to be relying on its erroneous belief that all covenants were subject to the waiver provision of covenant No. 7. It is plain from examination of the record that the trial court interpreted "living area" to mean an area in which people reside. Appellant has not argued that such interpretation is erroneous and it does not appear to be the result of a manifest abuse of discretion. Therefore, that interpretation is binding on this appellant. Appellant is permitted within the restrictive covenants to build a church building but that building *451 must contain 1,600 square feet of heated living area in which someone resides.
Appellant's enumerations of error relating to a different church possibly being built in the same subdivision need not be considered. Whether or not another church is being built and whether or not anyone is seeking to enjoin such building is not relevant to this case. Allegations of prejudice against this appellant church are unfounded since the appellee questioned, testified positively that he would seek to enjoin the construction of any church in his subdivision.[2]
Judgment affirmed in part, reversed in part. All the Justices concur, except Jordan, J., who concurs in the judgment only, and Nichols, C. J., Hall and Hill, JJ., who dissent.
NICHOLS, Chief Justice, dissenting.
I must disagree with the majority's reasoning and judgment regarding the second covenant. The second covenant provides: "No building shall be constructed which does not contain a minimum of 1,600 square feet of heated living area." The trial court held as a matter of law that "living area" means an area in which someone resides and found as a matter of fact that the proposed church would not contain the requisite number of square feet of area in which someone would reside. The majority affirms, holding that the trial court did not abuse its discretion as to the finding of fact and that the trial court's construction of the covenant is binding upon the appellant because the appellant has not argued that it is erroneous.
The appellant's brief cites legal authorities, makes *452 legal arguments, then concludes that, "In view of the foregoing we respectfully submit that the lower court erred in the following particulars: (a) in over ruling [sic] appellants [sic] motion to dismiss; ... (d) in misinterpreting the restrictive covenants concerned..." (Emphasis supplied.)
I am of the opinion that the appellant's brief is minimally sufficient to assert that the second covenant as well as the seventh covenant was misconstrued as a matter of law by the trial court. Hence, I reach the issue of the legal construction by the trial court of the second covenant.
We must construe all, not just part, of the words used by the grantor. Davis v. Miller, 212 Ga. 836, 837 (96 SE2d 498) (1957). The second covenant requires that a building contain a certain amount of "heated living area." The trial court merely construed the last two of those three words. The grantor did not use the word "home," "house," "residence," or such similar term denoting a place where people reside. He used the word "building." As the majority concedes, a church is as much a "building" as is a house. Neither did the grantor expressly require that someone reside in the 1,600 square feet of area. The trial court and the majority of this court read into the words "living area" two requirements: first, that the area be residential in nature, and second, that someone reside there. The grantor imposed no such limitations. The words "heated living area" used in reference to a church building just as readily can mean heated area occupied by persons, such as the pastor and members of the church, as distinguished from heated area occupied by inanimate objects, such as the building's heating, cooling and electrical systems. The words "heated living area" when applied to a church building reasonably can be used to differentiate between the sanctuary, the education and recreation rooms, and the pastor's office, for examples, on the one hand, and the heated storage and furnace rooms, on the other hand, since few church buildings in Georgia have residential apartments containing 1,600 square feet of area.
This court should resolve in favor of the grantee (Voyles v. Knight, 220 Ga. 305 (138 SE2d 565) (1964)) all *453 doubt as to the uses permitted since it is by no means "clearly established" by the language used by the grantor when it is "strictly construed" against him (Davis v. Miller, supra) that he meant to permit use of the subdivision land by a church only if the church building contained 1,600 square feet of heated area in which someone resides. The result of the majority's decision is to turn the rules of construction upside down by construing the language strictly against the grantee rather than in its favor. Accordingly, I must dissent.
I am authorized to state that Justice Hall and Justice Hill join me in this dissent.
NOTES
[1] It is not clear from examination of all the restrictive covenants that only residential uses were to be permitted in this subdivision. The term "building" is used throughout where the word "residence" could have been used had it been intended.
[2] He testified that the other church being built was not in his subdivision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743475/ | 289 Wis. 2d 551 (2006)
710 N.W.2d 725
2006 WI App 31
STATE v. DEMERATH.
No. 2005AP002127 CR.
Court of Appeals of Wisconsin.
January 31, 2006.
Unpublished opinion. Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263262/ | 31 Cal.App.4th 214 (1994)
37 Cal. Rptr.2d 153
JANET C. MANGINI, Plaintiff and Respondent,
v.
J.G. DURAND INTERNATIONAL, Defendant and Appellant.
Docket No. A065120.
Court of Appeals of California, First District, Division Five.
December 29, 1994.
*215 COUNSEL
Beveridge & Diamond, James L. Meeder, Robert D. Wyatt and Susan C. Cagann for Defendant and Appellant.
Milberg, Weiss, Bershad, Hynes & Lerach, William S. Lerach, Alan M. Mansfield, Artie Baran, Frank J. Janecek, Jr., Bushnell, Caplan & Fielding, Alan M. Caplan, Philip Neumark and April M. Strauss for Plaintiff and Respondent.
OPINION
PETERSON, P.J.
J.G. Durand International (Durand) appeals from a preliminary injunction order which prevents it from selling certain patterns of leaded crystal stemware in California unless it provides consumers with a notice which warns about exposure to lead. Durand contends the injunction must be set aside because the trial court (1) failed to order the plaintiff to post an injunction bond, and (2) improperly delegated its judicial responsibilities to the Attorney General in violation of the constitutional separation of powers.
We find the first of these arguments persuasive and will reverse the preliminary injunction.
*216 I. FACTUAL AND PROCEDURAL BACKGROUND
In 1986, the voters of this state approved Proposition 65 which added sections 25249.5 through 25249.13 to the Health and Safety Code. Under Health and Safety Code section 25249.6, persons doing business in this state are prohibited from intentionally exposing any individual to a chemical which is known to the state to cause cancer or reproductive toxicity unless a clear and reasonable warning is given. The parties to this appeal agree that lead is one of the chemicals which triggers a warning obligation under Health and Safety Code section 25249.6.
In June 1993, respondent Janet C. Mangini (Mangini) sent the Attorney General a letter stating her intent to bring an action against Durand unless the Attorney General should move to prevent Durand from selling leaded crystal stemware in California without a Proposition 65 warning. The Attorney General declined to proceed, so Mangini filed an action against Durand and others alleging they had violated Proposition 65.
Subsequently, Mangini moved for a preliminary injunction to prevent Durand from selling certain patterns of its leaded crystal stemware without a Proposition 65 warning. After extensive argument, the court granted the injunction on January 31, 1994. Among other things, the court enjoined Durand from selling three patterns of leaded crystal stemware unless Durand provided its customers with a notice warning about the danger of exposure to lead. Then, adopting language supplied by Durand, the court said the warning obligation would be "vacated and of no force and effect ... upon a showing that the Attorney General of the State of California has determined, after submission of test data by Durand, that one or more of the enjoined patterns do not require a Proposition 65 warning." Finally, over Durand's objection, the court imposed the injunction without requiring Mangini to post a security bond.
On February 8, 1994, Durand submitted to the Attorney General testing data concerning the three patterns of stemware which had been enjoined. After reviewing the data, the Attorney General responded on February 17, 1994, and said that two of the three patterns could be sold without a Proposition 65 warning, but that the third pattern, the "Florence Flute" champagne glass, could be sold only if a warning were provided.
Durand then attempted to convince the Attorney General to reconsider his conclusions. When the Attorney General declined, Durand filed the present appeal.
II. DISCUSSION
(1) The pivotal issue in this case is whether the trial court erred when it imposed the preliminary injunction without requiring Mangini to post a *217 security bond. Code of Civil Procedure[1] section 529 governs injunction bonding and states that when an injunction is granted "the court ... must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction." (Subd. (a), italics added.)
Despite the mandatory character of this language, the bonding requirement is subject to several exceptions. Under section 529, subdivision (b), a court need not order a bond in proceedings for legal separation or dissolution, for applicants under the Domestic Violence Protection Act (Fam. Code, § 6200 et seq.), or from the public entities or officers described in section 995.220. Furthermore, the Bond and Undertaking Law (§ 995.010 et seq.) grants courts the authority to waive the bond requirement for litigants who are indigent. (See § 995.240.) However, in the absence of one of these exceptions, the courts have interpreted section 529's bonding requirement strictly. (See ABBA Rubber Co. v. Seaquist (1991) 235 Cal. App.3d 1, 10 [286 Cal. Rptr. 518] [A bond is an "indispensable prerequisite to the issuance of a preliminary injunction" and the duty to order a bond is "mandatory, not discretionary."]; In re Marriage of Van Hook (1983) 147 Cal. App.3d 970, 989 [195 Cal. Rptr. 541] [Injunction is void without an undertaking.]; Miller v. Santa Margarita Land etc. Co. (1963) 217 Cal. App.2d 764, 766 [31 Cal. Rptr. 866] [Preliminary injunction reversed because no bond ordered.]; Federal Automotive Services v. Lane Buick Co. (1962) 204 Cal. App.2d 689, 695 [22 Cal. Rptr. 603] [Injunction held inoperative and of no effect because the order did not require a bond.].)
In the present case, Mangini does not claim she comes within one of the exceptions which are set forth in section 529, subdivision (b); nor does she claim indigency within the meaning of section 995.240. Instead, she relies on a line of federal decisions which have held or assumed that only a nominal injunction bond should be imposed in cases which seek to protect the environment. (See, e.g., People ex rel. Van De Kamp v. Tahoe Regional Plan (9th Cir.1985) 766 F.2d 1319 (Tahoe Regional Plan); Friends of the Earth, Inc. v. Brinegar (9th Cir.1975) 518 F.2d 322; Natural Resources Defense Council, Inc. v. Morton (D.D.C. 1971) 337 F. Supp. 167 (Morton), affd. on other grounds (D.C. Cir.1972) 458 F.2d 827 [148 App.D.C. 5]; Sierra Club v. Froehlke (S.D.Tex. 1973) 359 F. Supp. 1289, revd. on other grounds sub nom. Sierra Club v. Callaway (5th Cir.1974) 499 F.2d 982; State of Ala. ex rel. Baxley v. Corps of Engineers (N.D.Ala. 1976) 411 *218 F. Supp. 1261 (Corps of Engineers).) Mangini contends that since the object of her suit is to advance the public interest by warning consumers about the danger of lead exposure, the trial court here properly waived the bond requirement. No published California appellate decision has approved and followed the federal cases on which Mangini relies.
We need not answer this contention directly because, even if California courts have authority which is similar to that delineated by the federal rule (an issue we decline to decide), that rule would not assist Mangini here. The federal rule is based on the perception that the public interest in preserving the environment pending a hearing on the merits is more significant than the defendant's economic interest. (Tahoe Regional Plan, supra, 766 F.2d at pp. 1325-1326; Morton, supra, 337 F. Supp. at p. 169.) Where the plaintiff has established a probability of success on the merits and has persuaded a trial court to grant injunctive relief, the federal courts conclude that to require a plaintiff to post a substantial bond could severely impair legitimate environmental challenges, particularly from relatively impecunious plaintiffs. Any bond other than a nominal one could "effectively deny access to judicial review" or "close the courthouse door in public interest litigation by imposing a burdensome security requirement on plaintiffs who otherwise have standing" to raise an environmental challenge. (Tahoe Regional Plan, supra, 766 F.2d at p. 1325; Corps of Engineers, supra, 411 F. Supp. at p. 1276.)
Nothing in the record in the present case suggests requiring Mangini to post a bond would "deny access to judicial review," or would somehow "close the courthouse door." The preliminary injunction in this case was extremely narrow. The court simply enjoined Durand from selling three patterns of its leaded crystal stemware unless Durand provided its customers with copies of a notice warning about exposure to lead. Even this limited restriction was largely eliminated two weeks later when Durand submitted to the Attorney General testing data concerning the three patterns, and the Attorney General said that two of the three could be sold without a Proposition 65 warning. Thus, the practical effect of the injunction was simply to require Durand to provide a warning with its "Florence Flute" champagne glass. Even if there is a run on leaded crystal stemware in shops throughout California, whether many of this particular pattern would be involved is problematical. Any potential bond is likely to be modest. Furthermore, nothing in the record suggests Mangini was unable to post a bond. Mangini is not the nonprofit plaintiff we commonly see in environmental litigation. She is a gainfully employed practicing attorney. In the absence of some evidence showing a bond would be an impediment to maintaining the action, *219 we see no reason to even reach the federal rule. In sum, even if the federal rule is applicable in California, it would not assist Mangini here.[2]
Finally, we must observe that we have considered this issue before. In 1987, and then again in 1993, this court (Division Five) issued published opinions which expressly adopted the federal rule on bonding as a condition of receipt of preliminary injunctive relief in environmental litigation. Our Supreme Court ordered both opinions decertified for publication. (See Libeu v. Johnson[*] (Cal. App.); Albion River Watershed Protection Assn. v. Superior Court[] (Cal. App.)) While we might interpret those depublications as meaning our prior opinions were "wrong in some significant way" (see Grodin, The Depublication Practice of the California Supreme Court (1984) 72 Cal. L.Rev. 514, 515), rule 979(e) of the California Rules of Court cautions that a depublication order "shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion."[3] Recent Supreme Court cases suggest that rule 979(e) means just what it says. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254, fn. 9 [19 Cal. Rptr.2d 698, 851 P.2d 1307] [The majority acknowledges that its analysis was adapted from a depublished Court of Appeal decision.]; see also People v. Saunders (1993) 5 Cal.4th 580, 607-608 [20 Cal. Rptr.2d 638, 853 P.2d 1093] (dis. opn. of Kennard, J.) [Justice Kennard suggests that the reasoning adopted by the majority was consistent with several prior depublished decisions of appellate courts.].) We do not cite our prior decisions as critical of the high court's depublication procedure, but simply to illustrate an important fact. This division has now been asked to address the same injunction issue at least three times. We doubt that we are the only appellate court or division thereof in this state which has faced or will face the same issue. To date this recurring issue remains unresolved: Do courts of this state, under the provisions of section 529 or otherwise, have the power to order a nominal bond or to waive any bonding requirement as a condition to issuing a preliminary *220 injunction in "environmental" litigation? Our trial courts, counsel who must provide legal advice, and the litigants of this state will continue to debate this issue until it is finally resolved.
III. DISPOSITION
The preliminary injunction is reversed.
King, J., and Haning, J., concurred.
A petition for a rehearing was denied January 23, 1995.
NOTES
[1] Unless otherwise indicated, all subsequent statutory references are to the Code of Civil Procedure.
[2] In light of this conclusion, we need not decide whether the court's order violated the constitutional separation of powers by its submission to the Attorney General of the issue (following analysis of test data) of Proposition 65 warning requirements.
[*] Reporter's Note: Opinion (A034872) deleted upon direction of Supreme Court by order dated January 7, 1988.
[] Reporter's Note: Opinion (A060923) deleted upon direction of Supreme Court by order dated October 14, 1993.
[3] In analogous circumstances, our Supreme Court has explained the significance of a denial of review as follows: "Although this court's denial of a hearing is not to be regarded as expressing approval of the propositions of law set forth in an opinion of the District Court of Appeal or as having the same authoritative effect as an earlier decision of this court [citations], it does not follow that such a denial is without significance as to our views [citations]." (DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 178 [18 Cal. Rptr. 369, 367 P.2d 865], italics added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263373/ | 142 F.Supp. 369 (1956)
Stella PETROWICZ, a/k/a Stella Petroski,
v.
John W. HOLLAND, District Director, Immigration and Naturalization Service.
Civ. A. No. 20416.
United States District Court E. D. Pennsylvania.
June 22, 1956.
Order July 23, 1956.
A. Harry Levitan, Philadelphia, Pa., for plaintiff.
W. Wilson White, U. S. Atty., and Norman C. Henss, Asst. U. S. Atty., for defendant.
VAN DUSEN, District Judge.
The defendant has filed a motion for summary judgment and no answer *370 to the complaint[1] in this action for declaratory judgment and injunctive relief by an alien seeking to restrain the enforcement of an order directing that she be deported to Poland. The complaint and the certified copy of the deportation proceedings filed with the motion for summary judgment show, inter alia, the following:
1. The alien plaintiff was born in Poland in 1900 and has been a resident of this country since June 1914. She is the mother of eight children who are citizens of the United States of America and she has seventeen grandchildren in this country.
2. In October 1935, the Board of Review of the Immigration and Naturalization Service reversed an order directing plaintiff to be deported, issued about June 1, 1935, after testimony had been taken before a hearing examiner in May 1935, and held "inter alia, that there was no evidence to affirmatively show her a member of the Communist Party or that she was a member of the Communist Party subsequent to entry."
3. On August 25, 1953, there was served on plaintiff a warrant of arrest, charging her with being in this country in violation of Section 241(a) of the Immigration and Nationality Act, 8 U. S.C.A. § 1251(a), because she was, after entry into this country, an alien who was a member of the Communist Party of the United States. Plaintiff was granted a hearing under this warrant on February 9, 10, 11 and March 8, 1954, at which time testimony, transcribed on 265 letter-size pages, was offered by the Immigration and Naturalization Service before Loyd H. Matson, Special Inquiry Officer. Plaintiff was present at the hearing with counsel, but did not testify nor did she offer any evidence to rebut the evidence produced by the Service.
4. On August 20, 1954, the Special Inquiry Officer filed a thorough discussion of the testimony, findings of fact, including a finding that plaintiff was a member of the Communist Party of the United States in 1935 and 1936, conclusions of law, including a conclusion that plaintiff was subject to deportation under the above-mentioned Section 241(a), and an order that plaintiff be deported from the United States of America.
5. On December 21, 1954, the Board of Immigration Appeals, in a well-considered opinion, dismissed an appeal taken by plaintiff from the deportation order of August 20, 1954.
6. By letter dated March 16, 1956, plaintiff was ordered to report for deportation to Poland on April 2, 1956.[2]
Plaintiff contends that she was denied procedural due process of law[3] by the refusal of the Examining Officer to submit to the Special Inquiry Officer for examination (and to counsel for plaintiff if there was a basis therefor) written statements given by the witnesses to government agents many months prior to the time of the hearings.[4] The *371 defendant claims that these statements are confidential. Congress has provided for the administrative proceedings taken in this case[5] and for "full judicial review of this deportation order" by this court.[6]
Irrespective of the public interest that may be served by not requiring the Government to produce such documents, the Third Circuit Court of Appeals has indicated that the desire of Congress to see justice done to persons entitled to judicial review is of prime consideration, and the reviewing court must determine whether these statements disclose inconsistencies with present testimony of such a nature that plaintiff's counsel needs them in order to elicit the truth through cross-examination. This rule is subject to the provision that the inconsistencies not appear in matter required to be kept secret for security or other legal reasons.[7] See Reynolds v. United States, 1951, 192 F.2d 987, 994.[8] The reversal of that decision by the United States Supreme Court was specifically based on grounds which are not applicable here[9] and the Supreme Court opinion recognizes the applicability of the lower court reasoning discussed above to criminal cases. See 1953, 345 U.S. 1, 12, 73 S.Ct. 528, 97 L.Ed. 727.
The Circuit Court of Appeals stated in the Reynolds case, 192 F.2d at page 995:
"It has been held that in criminal cases the Government has the choice either to reveal all evidence within its control which bears upon the *372 charges or let the offense go unpunished, at least where the evidence is held by officials who are themselves charged with the administration of those laws for the violation of which the accused has been indicted."[10]
Defendant contends this principle is inapplicable here because counsel for plaintiff did not establish that the statements contained material inconsistent with the the testimony given by the witnesses before the Special Inquiry Officer. Several Federal cases have placed this burden on individuals seeking to use for impeachment statements in the possession of the Federal Government;[11] however, there are also cases indicating that where the individual has no way of determining the contents of such statements, the proper procedure is to have the trial judge examine the statements in camera and decide, first, if they contain any material of impeachment value and, second, if such material is so confidential that it should not be disclosed for such impeachment purposes. See United States v. Lebron, 2 Cir., 1955, 222 F.2d 531, 536-537 and United States v. Mesarosh, D.C.W.D.Pa.1953, 116 F. Supp. 345,[12] and cases there cited; cf. Fryer v. United States, 1953, 93 U.S.App. D.C. 34, 207 F.2d 134.[13]
The United States Supreme Court has consistently recognized that deportation "may result also in loss of both property and life, or of all that makes life worth living", Ng Fung Ho v. White, 1922, 259 U.S. 276, 284, 42 S. Ct. 492, 495, 66 L.Ed. 938 and "is * * * at times the equivalent of banishment or exile," Fong Haw Tan v. Phelan, 1948, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L. Ed. 433. See Galvan v. Press, 1954, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911. In view of these serious consequences, exacting procedural requirements are applicable to deportation proceedings. See Bridges v. Wixon, 1945, 326 U.S. 135, 154, 65 S.Ct. 1443, 89 L.Ed. 2103.[14] At least one Federal court has stated that the public policy considerations requiring the production of documents in the Government's possession for inspection by the trial judge in camera to determine their relevance are applicable in a deportation *373 proceeding involving an enemy alien. See United States ex rel. Schlueter v. Watkins, D.C.S.D.N.Y.1946, 67 F.Supp. 556, 561.[15]
Since the proposed deportation order contemplates sending this alien plaintiff behind the "iron curtain" on the basis of a fact alleged to have occurred approximately twenty years ago, this long-time resident of the United States, having a large family here, would seem entitled to have in her trial at least those safeguards given to an accused in a felony case, if not those granted to an accused in a capital case.
In view of these authorities and the serious nature of this deportation proceeding, I hold only that the statements of the witnesses, Dorothy Horst,[16] James Henry Evans, Leonard Patterson and Stanley Carl Crzek, should be presented to either me or the Special Inquiry Officer in camera if the Government wishes the Special Inquiry Officer to consider the testimony of these witnesses.[17] I shall also be glad to consider in camera any background facts the Government may feel are necessary to enable me to pass on the claim of privilege based on the confidential character of the statements (see last paragraph of quotation in footnote 8).
I have read the record carefully and the finding of the Special Inquiry Officer that plaintiff was a member of the Communist Party in 1935 and 1936 is fully supported by substantial evidence, as required by 5 U.S.C.A. § 1009, assuming that the evidence is competent because the above-mentioned statements have no impeachment value. See Quilodran-Braw v. Holland, D.C.E.D.Pa.1955, 132 F.Supp. 765, affirmed 3 Cir., 1956, 232 F.2d 183. The following language of the court in United States v. Coplon, 2 Cir., 1950, 185 F.2d 629, 638, is very appropriate in this case:
"* * * in truth it is extremely unlikely that she suffered the slightest handicap from the judge's refusal. But we cannot dispense with constitutional privileges because in a specific instance they may not in fact serve to protect any valid interest of their possessor."
On April 20, 1956,[18] I suggested to both counsel that the above-mentioned statements be submitted to me in camera for the reasons stated herein.[19] The *374 Assistant United States Attorney, representing the defendant, requested time to consult the appropriate Government officials and on May 23, 1956, a letter was received from the United States Attorney, renewing the Government's objection to the production of the documents in camera but not refusing to do so. This opinion has been written to formalize the reasons stated at the April 20th conference and to cite the authorities in support of the order described in the next paragraph.
Unless the statements of the witnesses, Dorothy Horst, James Henry Evans and Leonard Patterson, are produced within thirty days to me in camera, in accordance with this opinion, an order will be entered remanding the case to the Special Inquiry Officer for purposes of a supplemental hearing at which both parties to this suit will have an opportunity to offer additional evidence consistent with this opinion and directing such officer to make findings of fact and conclusions of law on the basis of (1) the testimony of Thomas Zygmont, who gave no statement to the Government, (2) the testimony of such other witnesses at the 1954 hearings whose statements are produced to him at or before the day of the supplemental hearing, and (3) such evidence as is received at the supplemental hearing.
In the event that the statements are presented to me and contain unprivileged material having impeachment value, the record will be remanded to the Special Inquiry Officer with such material so that it may be delivered by such Officer to counsel for plaintiff for use in cross-examining the witness or witnesses concerned.
Order
It is ordered, adjudged and decreed that the order of the Special Inquiry Officer dated 8/20/54, providing that the plaintiff be deported from the United States, and the order of the Board of Immigration Appeals dated 12/21/54, that the appeal from the order of 8/20/54 be dismissed, are unlawful and are set aside for the reasons stated in the opinion filed in this matter on June 22, 1956, and under the authority of 5 U.S.C.A. § 1009 (e) (B) (2); and, further, it is ordered that final judgment be entered for plaintiff on her claim that these orders are unlawful, since there is no just reason for delay in entering final judgment on this claim, as to these orders, in the complaint.[1] The Special Inquiry Officer may reconsider, without unreasonable delay,[2] the deportation of plaintiff on the basis of (a) the testimony of Thomas Zygmont, (b) the testimony of any other witnesses at the 1954 hearings whose statements are produced to him in camera[3] after following the procedure outlined in the opinion of 6/22/56, and (c) such other evidence, if any, as he may receive.[4] The certified copy of the deportation proceedings (marked A 5,718,442) may be delivered by the Clerk of this court to the Special Inquiry Officer, Loyd H. Matson, Esq., or to his authorized representative, on his receipt therefor.
NOTES
[1] Although the plaintiff's administrative remedies were exhausted by the order of December 21, 1954 (see paragraph No. 5 of opinion), the complaint was not filed until March 20, 1956. Since the notice to report for deportation was dated March 16, 1956, and defendant has made no showing of prejudice resulting from plaintiff's delay in filing this complaint, this action must be considered timely in view of the failure of the Administrative Procedure Act, 5 U.S.C.A. § 1009, to provide any time limit within which judicial review must be sought.
[2] A preliminary injunction was issued, restraining the deportation of plaintiff pursuant to this order of 4/2/56, and a hearing was held on this preliminary injunction and on the motion for summary judgment on April 6, 1956.
[3] Admittedly, this alien is entitled to the procedural due process of law required by the Fifth Amendment. See Kwong Hai Chew v. Colding, 1953, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576.
[4] The statement of Mrs. Dorothy Horst was given at least eight months prior to her testimony (May or June 1953, N.T. 23, 31 & 34), the statement of James Henry Evans over a year prior to his testimony (N.T. 151-2), and the statement of Leonard Patterson at least six months prior to his testimony (May or summer of 1953, N.T. 151-2). The testimony of Stanley Carl Crzek is not sufficiently significant to make important the production of his statement, given two months prior to his testimony (N.T. 95-6, 100-3). The fifth witness, Thomas Zygmont, gave no statement. Mrs. Horst's statement was given under oath.
[5] 8 U.S.C.A. § 1252(b); 8 U.S.C.A. § 1101 (b) (4) provides for selection and supervision of Special Inquiry Officers by the Attorney General.
[6] 5 U.S.C.A. § 1009. See Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 52, 75 S. Ct. 591, 99 L.Ed. 868.
[7] Cf. United States v. Li Fat Tong, 2 Cir., 1945, 152 F.2d 650.
[8] The full discussion of the problem in this case at pages 992-998 makes it unnecessary to discuss here the points so ably covered in that opinion. The court used the following language at pages 997-998:
"* * * we are satisfied that a claim of privilege against disclosing evidence relevant to the issues in a pending law suit involves a justiciable question, traditionally within the competence of the courts, which is to be determined in accordance with the appropriate rules of evidence, upon the submission of the documents in question to the judge for his examination in camera. Such examination must obviously be ex parte and in camera if the privilege is not to be lost in its assertion. But to hold that the head of an executive department of the Government in a suit to which the United States is a party may conclusively determine the Government's claim of privilege is to abdicate the judicial function and permit the executive branch of the Government to infringe the independent province of the judiciary as laid down by the Constitution.
* * * * *
"When Government documents are submitted to them in camera under a claim of privilege the judges may be depended upon to protect with the greatest of care the public interest in preventing the disclosure of matters which may fairly be characterized as privileged. And if, as the Government asserts is sometimes the case, a knowledge of background facts is necessary to enable one properly to pass on the claim of privilege those facts also may be presented to the judge in camera."
The recent decisions of that court are fully consistent with the importance of cross-examination as an element of due process of law. See United States v. Fontana, 3 Cir., 1956, 231 F.2d 807; United States v. Hogan, 3 Cir., 232 F.2d 905.
[9] The Reynolds case involved an action for damages under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2674. The Supreme Court said that the rationale of the rule above discussed is applicable to criminal cases, but not to a civil case under the Tort Claims Act, where the Government consents to be sued on its own terms. See language quoted below in footnote 10.
[10] The Supreme Court said at page 12 of 345 U.S., at page 534 of 73 S.Ct. of its opinion in the Reynolds case:
"Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum where the Government is not the moving party, but is a defendant only on terms to which it has consented."
[11] See Jencks v. United States, 5 Cir., 1955, 226 F.2d 540, 552, and Scanlon v. United States, 1 Cir., 1955, 223 F.2d 382, 385-386, and cases there cited. It is noted that the United States Supreme Court has granted certiorari in the Jencks case, 350 U.S. 980, 76 S.Ct. 467.
[12] In the Mesarosh case, the court said at page 350:
"We are of the further opinion that the Government's contention that defendants are not entitled to the reports because they have not shown that the reports contradict Cvetic is untenable. Defendants cannot show that the reports contradict the witness unless they see them."
[13] See also United States v. Cohen, 2 Cir., 1944, 145 F.2d 82, 92; United States v. Ebeling, 2 Cir., 1944, 146 F.2d 254, 256-257; Cf. Shelton v. United States, 5 Cir., 1953, 205 F.2d 806, 814, certiorari denied 346 U.S. 892, 74 S.Ct. 230, 98 L.Ed. 395.
[14] In the Bridges case, the court said, 326 U.S. at page 154, 65 S.Ct. at page 1452: "Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penaltyat times a most serious onecannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness."
[15] In that case, the court said:
"Assuming the requested material to be importantly relevant, the government, in a criminal proceeding, would be deemed to have abandoned its privilege * * * the theory of waiver upon which the requirement of disclosure has been based seems to me to be the kind of useful fiction which the law invents to express an underlying public policy. That public policy is that a person should not be deprived of his liberty without giving him an opportunity to have access to material which might exculpate him. The considerations underlying such public policy are present in this case in abundance since it involves deportation."
[16] Although the Government offered to produce the statement of Dorothy Horst (the first witness) under what were reasonable limitations (N.T. 25), counsel for plaintiff rejected this offer and, in a series of statements which are most confusing (N.T. 26-8), he very nearly accepted the offer which he had rejected previously. No such limited offer was made by the Government in the case of the other witnesses (Evans and Patterson). Since the statements of these other witnesses must be produced, it is in the interests of justice that the Horst statement should also be produced.
[17] This does not necessarily mean that I would require such statements to be produced in every criminal case or every deportation case. See, for example, the considerations mentioned in United States v. Alper, 2 Cir., 1946, 156 F.2d 222, 226. There is a substantial difference between the penalties prescribed for crimes of filing false statements with a government agency and of wilful evasion of income tax, which were involved in the cases in footnote 11, and the penalty of deportation of this plaintiff to Poland, which is more comparable to the first degree murder charge in the Fryer case, supra.
[18] The hearing was held on April 6, 1956.
[19] It was pointed out on April 20 that since the impeachment character of the statements and the possible privilege involved were both questions of law, there would be no need to refer the matter back to the Special Inquiry Officer if there was no material in the statements to be turned over to counsel for plaintiff. This possibility indicated that examination of the documents by me might be a time-saving device.
[1] Cf. F.R.Civ.P. Rule 54(b), 28 U.S.C. and statement of Assistant United States Attorney at page 9 of the transcript of the conference of April 20, 1956, indicating that he wishes to take an appeal from this order.
[2] Cf. 5 U.S.C.A. § 1009(e) (A).
[3] The use of sealed envelopes is suggested so that any statements not submitted to counsel for plaintiff will be available to the reviewing court.
[4] The opinion in Livingstone v. Folsom, 3 Cir., 234 F.2d 75, indicates that the administrative hearing officer should decide whether or not additional proof is to be received by him. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263145/ | 238 P.3d 809 (2008)
ESIS
v.
HAVEN.
No. 49922.
Supreme Court of Nevada.
July 3, 2008.
Decision Without Published Opinion Dismissed-Stipulation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331879/ | 273 S.C. 98 (1979)
254 S.E.2d 311
Wessie POWELL, Appellant,
v.
BONITZ INSULATION COMPANY OF SOUTH CAROLINA, INC. and George Shumpert, Respondents.
20942
Supreme Court of South Carolina.
April 19, 1979.
*99 Bernard D. Dusenbury and Richard G. Dusenbury, Florence, for appellant.
Jeter E. Rhodes, Jr., Columbia, for respondent Bonitz Insulation Co. of S.C. Inc.
J. Reese Daniel, Columbia, for respondent Shumpert.
April 19, 1979.
GREGORY, Justice:
Appellant Wessie Powell brought this action against respondent Bonitz Insulation Company of South Carolina, Inc., and George Shumpert to recover actual and punitive damages for personal injuries. This appeal is from the order of the lower court granting respondents' motions for summary judgment. We affirm.
This is a trip and fall case. On or about February 7, 1976, the Federal Land Bank of Florence and the Pee Dee Production Credit Association moved their offices into a newly constructed two-story building. The building had been substantially completed except for the installation of carpeting on an interior stairway connecting the first and second floors. The carpeting had been installed on the second floor landing, but had not been installed on the stairs. A small flap of carpeting hung over the edge of the second floor landing leading down to the first step. Respondents were responsible for the carpet installation.
The employees of the Pee Dee Credit Association and the Federal Land Bank were made aware of the unfinished condition of the carpet on the stairway, but the stairway was not closed. The building has an elevator.
On March 10, 1976, Ms. Powell, an employee of Pee Dee Production Credit Association, tripped on the flap of carpet on the second floor landing and fell down the stairs sustaining personal injuries. She brought this action in May 1977.
The lower court granted respondents' motions for summary judgment after finding that Ms. Powell's informed disregard of the hazardous condition of the carpet equated with *100 any negligence or recklessness on the part of the respondents. This appeal by Ms. Powell followed.
On appeal from an order granting respondents' motions for summary judgment this Court will review the evidence and all reasonable inferences therefrom in the light most favorable to appellant. Summary judgment should be granted only where it is clear that no issue of fact is involved and an inquiry into the facts is not necessary to determine the application of the law. Hyder v. Jones, S.C. 245 S.E. (2d) 123 (1978).
The carpeting was left unfinished on the stairs because respondents ran out of nosing strips which were to be installed on the stairs together with the carpet. Additional nosing strips were ordered. The only evidence in the record indicates that the strips arrived on March 10, 1976, the day of Ms. Powell's accident.
Ms. Powell had actual knowledge of the condition of the carpeting in the stairwell before she moved into the new building on February 7, 1976. She knew the stairwell was left unfinished for the reason that respondents were waiting for additional materials. Ms. Powell nevertheless chose to use the stairs rather than the available elevator because she "enjoyed walking up stairways." Ms. Powell used this stairway from six to eight times per day from February 7, 1976 to March 10, 1976. She was aware that several of her co-workers had experienced some difficulty on the stairs because of the condition of the carpet. On the day of the accident her view of the stairway was unobstructed.
The carpet was securely glued to the second floor landing. The overhanging flap of carpet was carefully creased "like a piece of paper" to make it hang straight down. When the carpet was inspected after Ms. Powell's accident on March 10, 1976 it was found to be in the same condition it was left on February 7, 1976. There is no evidence that the carpet became loose or that the flap of carpet had curled up. The stairwell was obviously unfinished. A person standing on the carpeted second floor landing would look down upon uncovered *101 concrete steps and an uncovered first floor landing. The appearance of the stairwell served as a constant reminder to Ms. Powell of the potential risk she took every time she chose to use the stairs rather than the elevator.
We quote briefly from House v. European Health Spa, 269 S.C. 644, 239 S.E. (2d) 653 (1977):
By her own admission, Respondent knew, firsthand,... of ... the danger posed. Yet, ... she ... proceeded to expose herself to the risk presented. The conduct of the Respondent constitutes contributory negligence as a matter of law, and there is no question that such negligence was a contributing proximate cause of the injury. While it is generally true that contributory negligence is a question for determination by the jury, it is also true that when the evidence admits of but one reasonable inference, it becomes a matter of law for the determination of the Court. 239 S.E. (2d) at 655.
The rationale expressed in House, is applicable here. Ms. Powell was fully aware of the condition of the stairway and chose to expose herself to a known risk rather than take a less hazardous route. The lower court correctly found that in doing so she was guilty of negligence and recklessness as a matter of law.
Accordingly, the order of the lower court granting respondents' motions for summary judgment is affirmed.
Affirmed.
RHODES, J., and JOSEPH R. MOSS, Acting Associate Justice, concur.
LEWIS, C.J., and LITTLEJOHN, J., dissent.
LEWIS, Chief Justice (dissenting):
This action was brought by appellant to recover for personal injuries sustained by her when she fell on an interior stairway of the Federal Land Bank of Florence and the Pee Dee Production Credit Association office building in Florence where she worked. She alleged that her injuries resulted from the negligent, reckless, and wilful acts of respondent in *102 partially completing the installation of carpeting on the stairway and leaving it in such dangerous condition as to cause the most careful user of the stairway to fall. The lower court concluded that appellant was barred of recovery by her own contributory negligence and recklessness as a matter of law and granted respondents' motion for summary judgment, from which appellant has prosecuted this appeal.
In 1976 Production Credit Association and the Federal Land Bank engaged respondents to install the carpet in their newly constructed two-story building. The building was occupied on February 7, 1976 and had been completed except for the laying of the carpet on the stairway. The carpeting had been completed on the second floor to the top of the stairway, where the carpet was cut so as to extend over the floor and hang down. Respondents failed to anchor this flap and left it hanging loose and unattached.
There was an elevator between the two floors of the building but the employees also used the stairway which was provided for their use.
The partially and defectively installed carpet at the head of the stairway was allowed to remain in this condition by respondents from February 7 through March 10, although they were repeatedly warned that the users of the stairway often tripped over the loose carpet.
This record conclusively shows that the respondents were guilty, as a matter of law, of reckless, wilful, and wanton conduct in creating and leaving the dangerous condition in the partially installed carpet. The question at issue then is whether on a motion for summary judgment the record conclusively shows that appellant was guilty of contributory recklessness and wilfulness as a matter of law. This record does not so show.
It is reasonably inferable that appellant and the other employees were expected to use the stairway, as well as the elevator, in going from one floor of the building to the other. The continued necessity to pass over the dangerous condition *103 was calculated at some point in time to reduce the degree of negligence of appellant in exposing herself to the danger. And, as pointed out by appellant, the culpability of respondents, knowing of the necessity of appellant to use the stairway, would increase with the long persistent failure to reduce the hazard to which they had consciously exposed the employees using the building.
Much reliance is placed, in summarily barring appellant of recovery, upon the fact that she admitted knowledge of the hazard which caused her to fall. She also stated in her deposition: "... I was adjusted to being careful, to the hanging over carpet, and we were looking forward every day to the carpet being fixed. You adjust after a while when you know something is hazardous." In using the stairway on the occasion in question, as she was expected to do by her employer, she stated that, in passing over the dangerous condition created and permitted to remain by respondents, she exercised caution but, for some reason, she tripped and fell.
Under these circumstances, whether appellant was guilty of contributory negligence or contributory recklessness was an issue for the jury to determine and cannot be properly determined on a motion for summary judgment. If appellant was guilty of only contributory negligence, she would not be barred of recovery in view of the undisputed reckless conduct of respondents.
I would reverse the judgment and remand for a trial of the issues.
LITTLEJOHN, J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331889/ | 254 S.E.2d 14 (1979)
297 N.C. 144
STATE of North Carolina
v.
Glenn Wood FORD.
No. 59.
Supreme Court of North Carolina.
April 20, 1979.
*17 Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.
Richard W. Gabriel, Greensboro, for defendant.
SHARP, Chief Justice.
Defendant's first assignment of error is that the court's denial of his motion "for disclosure of impeaching information" constituted a denial of his constitutional rights of due process. In this motion defendant requested that the State be ordered to disclose (1) all prosecutions, investigations or possible prosecutions which had been brought or which were pending against the State's prosecuting witness Larry Lee Smith; (2) "all records and information revealing felony convictions attributed to this witness"; and (3) "all records and information showing prior misconduct or bad acts committed by this witness."
We note first that North Carolina law does not grant defendant the right to discover the criminal record of a State's witness. This right did not exist at common law and G.S. 15A-903 does not grant the defendant the right to discover the names, addresses, or criminal records of the State's witnesses. See State v. Smith, 291 N.C. 505, 523, 231 S.E.2d 663, 674-5 (1976). The only issue, therefore, is whether the information which defendant sought from the prosecution was of such significance that the prosecutor's failure to disclose it resulted in the denial of the defendant's due process right to a fair trial. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). The answer is most certainly No.
To establish a denial of due process defendant would have had to show (1) that Smith had a significant record of degrading or criminal conduct; (2) that the impeaching information sought was withheld by the prosecution; and (3) that its disclosure considered in light of all the evidence would have created a reasonable doubt of his guilt which would not otherwise exist. United States v. Agurs, supra at 112, 96 S.Ct. at 2401-2, 49 L.Ed.2d at 354-55. In this case, the defendant failed to show that the State knew of any criminal convictions against its witness Smith or that Smith, in fact, had any criminal record. Indeed, during his cross-examination of Smith defense counsel did not once ask him if he had ever been convicted of a violation of the law. Such an inquiry of course, would have been a proper subject for cross-examination. State v. Foster, 293 N.C. 674, 684-685, 239 S.E.2d 449, 456-7 (1977). Defendant's first assignment of error is overruled.
*18 Defendant's eighth assignment is that the court erred in overruling defendant's motion for judgment as of nonsuit made at the close of all the evidence. In his brief defendant "maintains" that no evidence in this case "can reasonably be construed to show an intentional killing with a deadly weapon." This assertion sets at naught the testimony of Larry Lee Smith, Connie Boykin, and Charles Lee Williams, which tended to show:
En route from The Paradise to the Clapp Street party defendant made an extremely obscene remark about the deceased Enoch, who was then sitting in the back seat of Smith's automobile with Connie Boykin. At the party defendant again expressed resentment toward Enoch when he ordered "a guy" who was disputing with Connie "not to be arguing with my woman." In consequence, Smith intervened to prevent a fight between Enoch and defendant. A few minutes later, Boykin and Williams saw defendant strike the drunken Enoch, who immediately slumped over a Plymouth automobile. When Smith went to investigate he found Enoch slumped against the car and defendant standing in front of him. In his hand defendant held an open knife with a blade three or four inches long. Defendant, who helped Smith put the bleeding Enoch in Smith's car, urged him to drive fast to the hospital because, he said, he had cut Enoch twice. In the emergency room, after it became apparent that Enoch's condition was serious, defendant said to Smith, "Look, man, don't say nothing."
This evidence was clearly sufficient to take the issue of defendant's guilt of second degree murder to the jury. The credibility of the State's and defendant's witnesses was for the jury and their decision was to accept the State's version of the knifing on Clapp Street. Defendant's eighth assignment of error is overruled.
We next examine defendant's 13th assignment of error, that the trial judge erred in denying defendant's motion for a recess to locate an allegedly newly discovered witness. Just prior to the judge's charge, after defendant had rested his case, he requested the court to grant a recess for the purpose of allowing him to locate Ricky Johnson. Defense counsel said that Ricky Johnson "is alleged to have been the occupant of the apartment on Clapp Street at which the party was held and in which the defense is informed was an eyewitness to this matter."
A motion to recess is addressed to the sound discretion of the trial judge, and nothing in the record of the case suggests that the judge abused his discretion in denying defendant's motion. The record shows that the defense attorney had been appointed six months before the trial. No subpoena had been issued for Ricky Johnson, whose presence at the party was well known to defendant's main witness, Kenneth Eugene Street, who testified that it was Ricky who broke up Connie Boykin's first argument after she arrived at the party. He did not, however, mention his presence in the street when he testified he saw Smith stab Enoch. It is hardly plausible that Street would have overlooked a witness who would have corroborated his testimony had one been available. Assignment No. 13 is overruled.
Defendant's assignment No. 14 challenges the court's failure to instruct the jury on the lesser included offense of voluntary manslaughter.
A trial judge's duty to instruct the jury as to a lesser included offense of the crime charged arises only when there is evidence from which the jury could find that the defendant committed the lesser offense. When there is no such evidence the court should refuse to charge on the unsupported lesser offense. State v. Hampton, 294 N.C. 242, 239 S.E.2d 835 (1978). In this case all the evidence tends to show that the person who stabbed Enoch intentionally assaulted him with a deadly weapon, the use of which proximately caused his death. This evidence was sufficient to raise the inference that the killing was unlawful and done with malice. State v. Berry, 295 N.C. 534, 246 S.E.2d 758 (1978); State v. Price, 271 N.C. 521, 157 S.E.2d 127 (1967). The record is devoid of any evidence tending to *19 show a killing in the heat of passion or the use of excessive force in the exercise of the right of self-defense. Defendant's evidence was to the effect that he never assaulted the deceased, but that the witness, Larry Lee Smith, was the killer. This evidence did not tend to raise the issue of malice or unlawfulness but to show that defendant was not the killer and thus not guilty of any crime. We hold, therefore, that there was no evidence to support the lesser included offense of manslaughter. See State v. Hampton, supra.
Defendant's remaining assignments disclose no prejudicial error and merit no discussion. We find no cause to disturb the jury's verdict.
No Error.
BROCK, J., did not participate in the decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331869/ | 254 S.E.2d 687 (1979)
Frank FLOYD et al.
v.
Billy J. WATSON et al.
No. 13804.
Supreme Court of Appeals of West Virginia.
May 15, 1979.
*688 E. Dennis White, Jr., Bernard T. Nibert, II, Huntington, for appellants.
George L. Partain, Logan, for appellees.
HARSHBARGER, Justice:
Frank and Jo Ann Floyd entered into a contract with Billy J. and Nola Watson whereby the Watsons agreed to sell real property to the Floyds and construct a house and appurtenances upon the property according to specifications attached to the agreement.
The Watsons built the house and deeded property to the Floyds, but failed to build a wall as specified. They completed part of it, some on property they still owned, but to *689 finish it would have had to extend it further upon their property.
The Floyds brought suit to force completion of the wall and conveyance to them of the property upon which it would be located.
Prior to trial, the parties agreed that the Watsons would complete the wall and make the appropriate deed, but they failed to build the wall according to this agreement.
The Floyds then brought a second suit seeking specific performance of the settlement agreement and the court granted it. The order designated the location of the wall and required the Watsons to complete construction and to deed to the Floyds the requisite property.[1]
The Watsons did not comply with the order, and when they were cited for contempt they requested a jury trial on the contempt and their potential punishment for it. Both requests were denied. After hearing, the court found them guilty of contempt, ordered them to purge themselves by building the wall and provided for a graduated fine to increase in amount as long as they failed to commence work.
About 25 days later, a second hearing was held. The Watsons, who had disobeyed the order, were again found in contempt and were fined and sentenced to 70 days in jail. A stay of execution was granted pending appeal to this Court.
Four trial court errors are assigned: (1) refusal to dismiss the second action while the first was pending; (2) denying petitioners a jury trial on the specific performance aspect of the case; (3) specifically enforcing a compromise agreement which was incomplete, uncertain and impossible to perform; and (4), specifically enforcing a compromise agreement for personal services.
The first assignment of error is meritless. The court held the second action in abeyance until it was determined that in fact a valid settlement agreement had been reached. Then the first suit was dismissed and the court proceeded with the second.
The second assignment of error is also without merit. The record reveals from the court's order entered on July 19, 1976, that at a pre-trial conference held July 12, 1976, the appellants requested the court to rule on the issue of specific performance of the previously reached compromise agreement. It did so, and appellants cannot now be heard to complain that they were denied a jury trial that they did not ask for.
The third assignment fails because the court's order dated July 19, 1976, appears *690 to us to be complete, definite, certain and possible to perform.[2]
The final assignment deals with specific performance of the agreement. The general rule is that a compromise or settlement agreement is favored by law and is to be construed as any other contract. See, Penn Dixie Lines, Inc., v. Grannick, 238 N.C. 552, 78 S.E.2d 410 (1953); Wright v. Davis, 132 W.Va. 722, 53 S.E.2d 335 (1949); Janney v. Virginian Railroad, 119 W.Va. 249, 193 S.E. 187 (1937); and Maze v. Bennett, 114 W.Va. 169, 171 S.E. 249 (1933). Specific performance is available to enforce a compromise agreement, assuming other requisites for this remedy are met. 48 A.L. R.2d 1211.
Specific performance is not ordinarily decreed of construction contracts because an adequate remedy for damages exists and because of the impracticality of courts supervising contracted work. This rule is not absolute, but one of discretion, and where the particulars of the work are definitely ascertained, plaintiff has a substantial interest in having the contract performed, and money damages will not provide an adequate remedy, courts will order specific performance. See, Brown v. Western Maryland Railroad, 84 W.Va. 271, 99 S.E. 457 (1919), where this Court decreed specific performance of a contract by a railroad company to build or maintain side tracks, extensions or branch lines. See also, 4 A.L.R. 529 and cases cited therein.
In Wilhelm v. Denton, 82 Mich.App. 453, 266 N.W.2d 845 (1978), the Michigan Court of Appeals reversed a trial court's order denying the vendor of real property specific performance because an adequate remedy at law existed.
The grant of specific performance is within the discretion of the trial court and cannot be demanded as a matter of right. However, when the subject of the contract is the sale of land, specific performance may not be arbitrarily refused, and in the exercise of sound judicial discretion should be granted, in the absence of some showing that to do so would be inequitable. [Citations omitted] [82 Mich. App. at 455, 266 N.W.2d at 846]
See also, Hausam v. Wodrich, 574 P.2d 805, 809 (Alaska 1978).
The agreement here includes a provision for conveyance of land, and therefore specific performance is proper.
Specific performance is an equitable remedy which compels the performance of a contract on the precise terms agreed upon or such a substantial performance as will do justice between the parties under the circumstances. It is a means of compelling a contracting party to do precisely what he should have done without being coerced by a court. [Citations omitted] The object in such cases is to place the party without fault in as nearly the same position as he would have been had there been no default by the other party. [McCoy Farms, Inc. v. J & M McKee, Ark., 563 S.W.2d 409, 415 (1978)]
Although not raised by appellants, the propriety of the jail sentence imposed for their contempt must be examined. When the Watsons refused to obey the court order, they may have been guilty of both civil and criminal contempt because there is no clear line of delineation between the two and contempts need not be wholly civil nor altogether criminal. Hendershot v. Handlan, W.Va., 248 S.E.2d 273 (1978).[3]See also, Jencks v. Goforth, 57 N.M. 627, 261 P.2d 655 (1953). Civil and criminal *691 contempts can be distinguished by looking to the purpose for which the contempt order was issued.[4] "[C]ivil contempt proceedings do not seek to punish the defendant, but rather to benefit the complainant: the remedial measures applied are either compensatory or coercive; compensatory measures benefit the complainant directly, while coercive measures influence the defendant to act in a way that will ultimately benefit the moving party." [Footnotes omitted] Comment, The Coercive Function of Civil Contempt, 33 U.Chi.L.Rev. 120 at 123, 124 (1965). The purpose of punishing for criminal contempt, however, is the vindication of public authority. Curtis v. Tozer, Mo.App., 374 S.W.2d 557 (1964).
The distinction between the two contempts was stated by Justice Lamar in Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911):
It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. It is true that punishment by imprisonment may be remedial as well as punitive, and many civil contempt proceedings have resulted not only in the imposition of a fine, payable to the complainant, but also in committing the defendant to prison. But imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court's order. [Emphasis added] [221 U.S. 441, 442, 31 S. Ct. 498]
Because the purpose of the court's order was to provide a remedy to the complainants, Frank and Jo Ann Floyd, and to coerce compliance with the court's affirmative order, we find that the contempt here is civil.[5]
*692 The Watsons were notified that if they did not obey the court's order they would be in contempt and after notice a recorded hearing was held wherein they were represented by counsel, to determine whether they were guilty. They had all the procedural safeguards set out by Justice Miller in his concurrence to Hendershot, including adequate notice and reasonable opportunity to be heard, assistance of counsel, a record of the proceedings, and application of the criminal rules of evidence. Thus, there was nothing procedurally deficient in the contempt hearing.
However the punishment imposed, which was a fine and 70 day jail sentence, was inappropriate.
"[T]he most important result of the distinction between civil and criminal contempt is the rule that if a contempt procedure is criminal in nature, the sentence must be a determinate one, while if it is civil in nature, the sentence must be coercive." See, Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 243 (1971). "For this reason the authorities are in almost unanimous agreement that the imposition of a fixed term of imprisonment for civil contempt is improper where the contemnor is given no opportunity to purge himself of the contempt." McDaniel v. McDaniel, 256 Md. 684 at 689, 262 A.2d 52 at 55. Although definite sentences in civil contempt cases have been upheld,[6] we decline to join those few courts who have done so. For civil contempt, the penalty must coerce, not punish. The imposition of a definite jail sentence simply punishes. Imprisonment may be for a definite term only if the order allows the contemnor to be released from jail as soon as he or she complies with the order. McDaniel v. McDaniel, supra. Inasmuch as there was no such provision in the court's order here, the 70 day sentence allowing no opportunity for the parties to purge themselves, cannot stand.
We affirm the trial court in every respect, except his choice of penalty for the contempt exhibited by the Watsons. We sustain his imposition of fines but set aside the jail sentence.
Affirmed as modified.
NOTES
[1] The Court's order was: "At the pre-trial conference which was scheduled and held in this case on July 12, 1976, the defendants requested the court to rule on that aspect of the plaintiff's complaint that asked for specific performance of the agreement reached at the pre-trial conference held in Civil Action No. 8355 and based upon the testimony of the attorneys George L. Partain and Paul E. Bottome, taken by deposition and the court's own personal knowledge as to what transpired at the pre-trial conference held on March 6, 1975, that being that the court recalls that an offer of compromise was suggested by the defendant's attorney, Paul Bottome, who left the pre-trial conference room and returned and advised the court that he had conferred with the defendant Billy J. Watson, who was in the room outside the pre-trial conference hearing room, and that the defendants offered to settle the case on the basis that the defendant Billy J. Watson would tender the plaintiffs a deed for the property on which the front wall was sitting and would continue the wall along the diagonal portion of the plaintiff's property, S 32° 26' W 36.88 feet, tieing the same into the existing wall where the tie-in openings had been provided so that the wall is identical in all respects to the existing wall and that the defendants would furnish to plaintiffs a deed to any property owned by the defendants if any portion of said wall had to be erected on the defendants' property; and it further affirmatively appearing to the court that this offer was accepted by the plaintiffs on March 13, 1975, and that therefore a binding agreement was reached, it is accordingly
ORDERED that the plaintiffs are entitled to specific performance of said compromise agreement and the defendant Billy J. Watson is ORDERED to forthwith construct the wall in accordance with said agreement and to deliver to said plaintiffs a deed to any property which they own and on which said wall must be placed.
Dated this 19 day of July, 1976.
ENTER:
S/ Harvey Oakley
Judge"
[2] See n. 1, supra.
[3] As stated by Chief Justice Caplan in Hendershot:
Contempt may be civil or criminal. Where the primary purpose is to preserve the court's authority and to punish for disobedience of its orders, the contempt is criminal. Where the primary purpose is to provide a remedy for an injured suitor and to coerce compliance with an order the contempt is civil. The same act may constitute both civil and criminal contempt and contempts may be neither wholly civil nor altogether criminal but may partake of characteristics of both. State ex rel. Arnold v. Conley, 151 W.Va. 584, 153 S.E.2d 681 (1966). [248 S.E.2d 275]
[4] The Maryland Court of Appeals applied another analysis which was originally used by the Supreme Court of Pennsylvania, setting forth factors which generally point to a civil contempt:
"`* * * (1) the complainant is usually a private person as opposed to the State; (2) the contempt proceeding is entitled in the original action and filed as a continuation thereof as opposed to a separate and independent action; (3) holding the defendant in contempt affords relief to a private party; (4) the relief requested is primarily for the benefit of the complainant; (5) the acts complained of do not of themselves constitute crimes or conduct by the defendant so wilful or contumelious that the court is impelled to act on its own motion. Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956) * * *.'" [McDaniel v. McDaniel, 256 Md. 684, 262 A.2d 52, 55 (1970)]
[5] This is not to say that criminal contempt could not apply. Justice Neely wrote in Eastern Associated Coal Corp. v. Doe, W.Va., 220 S.E.2d 672 (1975), that when a husband ignores a court order to pay alimony he may be in civil contempt, but, depending on how the order was disobeyed, could also be criminally contemptuous.
However, the same husband can convert his civil contempt into criminal contempt by being disrespectful, abusive, or contumacious toward the court, in which case the court may incarcerate him for a definite period regardless of his future willingness to comply with the court order. [220 S.E.2d at 681]
Regardless of the type of contempt, summary punishment is proper in certain instances. Although a court may impanel a jury to set the proper fine or imprisonment, it is not mandatory that the court do so in every case.
W.Va.Code, 61-5-26 provides:
The courts and the judges thereof may issue attachment for contempt and punish them summarily only in the following cases: (a) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice; (b) violence or threats of violence to a judge or officer of the court, or to a juror, witness, or party going to, attending or returning from court, for or in respect of any act or proceeding had, or to be had, in such court; (c) misbehavior of an officer of the court, in his official character; (d) disobedience to or resistance of any officer of the court, juror, witness, or other person, to any lawful process, judgment, decree or order of said court. No court shall, without a jury, for any such contempt as is mentioned in subdivision (a) of this section, impose a fine exceeding fifty dollars, or imprison more than ten days. But in any such case the court may impanel a jury (without an indictment or any formal pleading) to ascertain the fine or imprisonment proper to be inflicted, and may give judgment according to the verdict. No court shall impose a fine for contempt, unless the defendant be present in court, or shall have been served with a rule of the court to show cause, on some certain day, and shall have failed to appear and show cause. [Emphasis added]
[6] See, Dahl v. Dahl, 210 Minn. 361, 298 N.W. 361 (1941) and Jencks v. Goforth, 57 N.M. 627, 261 P.2d 655 (1953) (suspended definite sentence). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331904/ | 254 S.E.2d 223 (1979)
41 N.C. App. 1
James W. ENGLISH and wife, Susan P. English, Plaintiffs, Charles G. Gegick and wife, Sharon F. Gegick, Intervenor-Plaintiffs,
v.
HOLDEN BEACH REALTY CORPORATION.
No. 7813SC595.
Court of Appeals of North Carolina.
May 1, 1979.
Certiorari Denied July 12, 1979.
*228 Lovelace, Gill & Snow by James E. Gill, Jr., High Point, for plaintiffs-appellees.
Tuggle, Duggins, Meschan, Thornton & Elrod by Thomas S. Thornton, Greensboro, for intervenors-plaintiffs appellees.
Manning, Fulton & Skinner by Catherine C. McLamb and John B. McMillan, Raleigh, for defendant-appellant.
Certiorari Denied by Supreme Court July 12, 1979.
CARLTON, Judge.
The record discloses that appellant has grouped twenty exceptions under thirteen assignments of error. In its brief, defendant brings forward nine "questions involved." The remaining assignments of error are deemed abandoned. Rule 28, N.C. Rules of Appellate Procedure.
*229 From the arguments in the briefs presented by the parties, we group the questions involved into three issues for discussion:
1. Did the trial court err in allowing the action to be maintained as a class action?
2. Did the trial court err in granting partial summary judgment for the plaintiffs?
3. Did the trial court abuse its discretion in granting a mandatory injunction against the defendant?
We discuss the questions temporum ordo:
1. CLASS ACTION
We first discuss whether the trial court properly concluded that the action be maintained as a class action pursuant to G.S. 1A-1, Rule 23(a) which provides as follows:
(a) RepresentationIf persons constituting a class are so numerous as to make it impracticable, to bring them all before the court, such of them, one or more, as will fairly insure that adequate representation of all may, on behalf of all, sue or be sued.
Our G.S. 1A-1, Rule 23(a) is closely patterned after Rule 23 of the Federal Rules of Civil Procedure as it existed prior to 1966 (the year of the Federal Rule revision) and our former G.S. 1-70. We rely on decisions interpreting those statutes in interpreting G.S. 1A-1, Rule 23(a). We find the following salient principles applicable to G.S. 1A-1, Rule 23(a):
1. "Although not specifically mentioned in the rule, an essential prerequisite of an action under Rule 23 is that there must be a `class.' Whether a class exists is a question of fact that will be determined on the basis of the circumstances of each case." 7 Wright and Miller, Federal Practice and Procedure: Civil § 1760, p. 579. A "class" for purposes of representation is a group of persons whose interests are so closely similar that an adequate representation of the legal position of one of them will accomplish the same purpose as would be achieved were all of them present and participating in the proceeding. 35A C.J.S. Federal Civil Procedure § 63, p. 116. "Apparently any group of persons having a community of interest in a particular matter constitutes a class and one or more of the group may sue or be sued on behalf of all." Shuford, N.C. Civil Practice and Procedure, Class Actions, § 23-3, p. 199 and cases cited therein.
2. The fact that some members of the class are located outside the court's jurisdiction does not prevent the institution of a class action so long as there are class members within the jurisdiction who adequately represent those outside. Vann v. Hargett, 22 N.C. 31 (1838).
3. The class must be so "numerous as to make it impracticable to bring them all before the court." The legal test of "impracticability" of joining all members of a class, thus warranting a representative or class suit by or against some of the members, is not "impossibility" of joinder, but only difficulty or inconvenience of joining all members of the class. There is no hard and fast formula for determining what is a "numerous" class. The number is not dependent upon any arbitrary limit but rather upon the circumstances of each case. See 7 Wright and Miller, Federal Practice and Procedure: Civil § 1762, p. 592 et seq.; 35A C.J.S. Federal Civil Procedure §§ 70, 71, pp. 120, 121; Shuford, supra, § 23-3, p. 200; In re Engelhard, 231 U.S. 646, 34 S. Ct. 258, 58 L. Ed. 416 (1914).
4. More than one issue of law or fact common to the class should be present in order to maintain a class action. In general, courts focusing on Rule 23 have given it a permissive application so that common questions have been found to exist in a wide range of contexts. 7 Wright and Miller, Federal Practice and Procedure: Civil § 1763, pp. 603-605. See also Gordon v. Forsyth County Hosp. Authority, Inc., 409 F. Supp. 708 (D.C.N.C.1976).
5. The party or parties representing the class must be such "as will fairly insure the adequate representation of all." This requirement of the statute is also *230 one of due process. Hansberry v. Lee, 311 U.S. 32, 61 S. Ct. 115, 85 L. Ed. 22 (1940). Those purporting to represent the class must show that they have a personal, and not just a technical or official, interest in the action. Hughes v. Teaster, 203 N.C. 651, 166 S.E. 745 (1932). Plaintiff has the burden of showing that the alleged representatives are members of the class and that the interests of absent class members will be adequately protected. 7 Wright and Miller, Federal Practice and Procedure: Civil § 1765, p. 626. It must not appear that there is a conflict of interest between members of the class who are not parties and those members who are representing the class as parties. Thompson v. Humphrey, 179 N.C. 44, 101 S.E. 738 (1919). This requirement is not necessarily one of numbers, but is dependent on the adequacy and vigor with which those parties will protect the interests of the class. Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2nd Cir. 1968); See Carswell v. Creswell, 217 N.C. 40, 7 S.E.2d 58 (1940).
6. "The party who is invoking Rule 23 has the burden of showing that all of the prerequisites to utilizing the class action procedure have been satisfied." 7 Wright and Miller, Federal Practice and Procedure: Civil § 1759, p. 578. The pleadings should disclose the number and makeup of the class, the impracticability of bringing them all before the court and the personal interest in the action of the parties representing the class. See Rossin v. Southern Gas Co., 472 F.2d 707 (10th Cir. 1973); Hughes v. Teaster, supra.
7. While Rule 23(a) does not require it, we believe that fundamental fairness and due process dictate that adequate notice, determined in the discretion of the trial court, be given to members of the class. Federal Rule 23(c)(2) now requires for notice to members of the class in most instances. The court is required to direct to members of the class "the best notice practicable under the circumstances." This includes individual notice to all members who can be identified through reasonable effort. The notice must be adequate to satisfy constitutional due process requirements. See, 35A C.J.S. Federal Civil Procedure § 72 (3d Ed. Supp.1978) and cases cited therein. As stated in 7A Wright and Miller, Federal Practice and Procedure: Civil § 1788, p. 163: "Thus, notice must be sent long before the merits of the case are adjudicated and, indeed, probably should be sent as soon as possible after the action is commenced; as a practical matter, this means as soon as the court determines that the class action is proper . . .."
Moreover, the necessity for this kind of notice has been acknowledged in North Carolina. See, 9 Strong, N.C. Index 3d, Notice, § 1, p. 516. Notwithstanding the silence of a statute, notice of motion is required where a party has a right to resist the relief sought by the motion and principles of natural justice demand that his rights be not affected without an opportunity to be heard. Hagins v. Redevelopment Comm. of Greensboro, 275 N.C. 90, 165 S.E.2d 490 (1969). While our Supreme Court has not been called on to hold that notice to class members is essential to maintenance of a class action, it has pointedly indicated the importance of such a procedural requirement. In Cocke v. Duke University, 260 N.C. 1, 131 S.E.2d 909 (1963) the Court stated:
It is appropriate also, we think, in considering the demurrer to take note of the cautionary steps taken by the court to see that all possible beneficiaries had notice of the pendency of the action. Letters were mailed to all known potential beneficiaries of each class and notice of the institution and purpose of the action was given by publication.
8. Our Rule 23 should receive a liberal construction, and it should not be loaded down with arbitrary and technical restrictions. See 35A C.J.S. Federal Civil Procedure § 64, p. 117. It provides a ready means for dispatch of business. Cocke v. Duke University, supra. The rule has as its objectives "the efficient resolution of the claims or liabilities of many individuals in a single action" and "the elimination of repetitious litigation and possible inconsistent *231 adjudications involving common questions, related events, or requests for similar relief." 7 Wright and Miller, Federal Practice and Procedure: Civil § 1754, p. 543.
9. In deciding whether an action may be maintained as a class action, the trial court is accorded a degree of discretion. In re Engelhard, supra; 35A C.J.S. Federal Civil Procedure § 65, p. 118. "A court has broad discretion in deciding whether to allow the maintenance of a class action and therefore also may take account of considerations not expressly dealt with in the rule in reaching a decision . . .." 7A Wright and Miller, Federal Practice and Procedure: Civil § 1785, p. 134.
Applying these principles to the case sub judice, we find it necessary to discuss only the third and seventh principles enumerated above.
The third requirement is that the class must be so "numerous as to make it impracticable to bring them all before the court." In applying the rules with respect to this requirement, as stated above, to the facts disclosed by the record before us, we cannot find that the trial court abused its discretion in determining that this class was "numerous." While it would clearly not be impossible, and perhaps not impracticable, to join the 14 lot owners in this action, the trial court apparently concluded that it would be difficult, inconvenient, and detrimental to an expeditious resolution of the controversy. The location of the road could, and probably would, affect the property lines of all lot owners in the subdivision. A determination of front, back and sidelines for each lot would involve countless lawsuits. Pretrial proceedings could easily drag on for years. It would appear that a determination of the proper location of the roadway, which would obviously affect all lot owners, could most expeditiously be done in one action. The benefits of such an approach would inure to the defendant as well, since it would not be called on to defend a multiplicity of suits.
We do not find, however, that the trial judge provided adequate notice to members of the class as required by the seventh principle above. On the same day that the trial court granted partial summary judgment and ordered by mandatory injunction that defendant remove the road within 120 days, it also allowed the motion that the action be maintained as a class action and then ordered that notice be given to the class members. The most substantial, and in all likelihood, the most important part of the merits of the controversy, i. e., the location of the roadway, had thus been adjudicated before the class members were given notice. Class members were clearly precluded from asserting their rights with respect to the location of the road. The trial court should have ordered that notice be given class members as soon as the court determined that the class action was proper and certainly before a conclusive determination on the merits.
This assignment of error is sustained and the trial court's order that the action be maintained as a class action is reversed.
2. PARTIAL SUMMARY JUDGMENT
We next turn to the question of whether the trial court properly allowed partial summary judgment for the plaintiffs. Ordinarily, the allowance of a motion for summary judgment on the issue of liability, reserving for trial the issue of damages, will not be appealable. Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979). Here, however, the mandatory injunction ordering defendant to remove the roadway, as part of the order for partial summary judgment, clearly affected a "substantial right" of the defendant. G.S. 1-277; G.S. 7A-27.
G.S. 1A-1, Rule 56(c) provides in part as follows:
The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.
*232 By the clear language of the rule itself, the motion for summary judgment can be granted only upon a showing by the movant (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. Kiser v. Snyder, 17 N.C.App. 445, 194 S.E.2d 638 (1973). Upon motion for summary judgment the burden is on the moving party to establish the lack of a triable issue of fact. 11 Strong, N.C. Index 3d, Rules of Civil Procedure, § 56.2, p. 354. Where a moving party supports his motion for summary judgment by appropriate means, which are uncontroverted, the trial judge is fully justified in granting relief thereon. However, it is further clear that summary judgment should be granted with caution and only where the movant has established the nonexistence of any genuine issue of fact. That showing must be made in the light most favorable to the party opposing the summary judgment and that party should be accorded all favorable inferences that may be deduced from the showing. The reason for this is that a party should not be deprived of an adequate opportunity fully to develop his case by witnesses in a trial where the issues involved make such procedure the appropriate one. Rogers v. Peabody Coal Co., 342 F.2d 749 (6th Cir. 1965). The papers of the moving party are carefully scrutinized and those of the opposing party are, on the whole, indulgently regarded. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).
We are unable to agree with the trial court that there is no genuine issue as to any material fact arising from the pleadings and the affidavits submitted by the parties.
The plaintiffs alleged, and defendant denied, that defendant was trespassing on plaintiffs' property. The affidavit of Fred F. Hobbs, a registered land surveyor, presented by defendant raises a clear issue of material fact. It is in direct conflict with the affidavit of Jan Dale, submitted by plaintiffs. Hobbs deposed that the roadway in question did not encroach on any lots other than those owned by defendant. His conclusion was based upon a survey done by him and an examination of the 1963 map and other maps of the area. In this action based on alleged trespass, we can think of no more pointed way to raise a genuine issue as to a material fact than to have competent, sworn testimony that there has been no trespass.
Plaintiffs argue that the doctrine of estoppel by deed prevents the defendant from denying or asserting any boundaries other than those shown on the 1963 map from which the description in the deed was drawn. Hence, summary judgment was proper because there was no issue of material fact with respect to boundaries. We do not agree.
It is generally held that a recital inserted in a deed through mistake will not be permitted to operate as an estoppel so as to exclude the truth. 31 C.J.S. Estoppel § 43, p. 348. Here, defendant alleged a mistaken course was shown on the 1963 map from which plaintiffs' deed was drawn, precluding the true intent of the parties from being realized.
Moreover, it is an established rule of law that estoppel, or the existence thereof, is generally a question of fact for determination by the jury. 31 C.J.S. Estoppel § 163, p. 784. The rule has been approved in North Carolina. Stereo Center v. Hodson, 39 N.C.App. 591, 251 S.E.2d 673 (1979); Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745 (1955).
Defendant's brief presents numerous other reasons to support its argument that the granting of partial summary judgment was improper. Since we hold that the granting of the motion was erroneous for the reasons stated above, it is unnecessary for us to discuss these remaining arguments. The order of the trial court granting partial summary judgment for plaintiffs is reversed. This holding also disposes of defendant's second assignment of error; that portion of the order granting partial summary judgment to the intervenor-plaintiffs is also reversed.
*233 3. MANDATORY INJUNCTION
We next turn to the defendant's contention that the trial court improperly ordered a mandatory injunction requiring defendant to remove the roadway and replace it according to the 1963 map. We do not agree with defendant that a mandatory injunction is improper in actions such as this, but for reasons stated infra, we must vacate this portion of the trial court's order and remand for further proceedings.
We note the following well-established principles with respect to an action of this nature:
1. Equitable relief in the form of a mandatory injunction will lie in cases of continuing trespass in order to avoid a multiplicity of actions at law for damages. Conrad v. Jones, 31 N.C.App. 75, 228 S.E.2d 618 (1976); Collins v. Freeland, 12 N.C.App. 560, 183 S.E.2d 831 (1971); Young v. Pittman, 224 N.C. 175, 29 S.E.2d 551 (1944); 7 Strong, N.C. Index 3d, Injunctions, § 7.1, p. 240.
2. Injunction is a proper remedy for relief against continuing trespass either where perpetual injunction is sought in an independent action or where (as here) the injunction is ancillary to an action in which the title to land or the right to its possession is at issue. Jackson v. Jernigan, 216 N.C. 401, 5 S.E.2d 143 (1939).
3. "Injunctive relief is not a matter of right, but its grant or refusal usually rests in the sound discretion of the court, exercised in harmony with well established principles." 43 C.J.S. Injunctions § 14, p. 768. Where the granting of relief in an action is dependent on the sound discretion of the court, summary judgment should be cautiously entered. Booth v. Barber Transp. Co., 256 F.2d 927 (8th Cir. 1958). "Accordingly, while it may be proper to grant a summary judgment in an action for injunction, the court should proceed cautiously before applying summary judgment procedure where injunctive relief is sought." 35B C.J.S. Federal Civil Procedure § 1139, p. 534.
4. In all actions tried without a jury it is the duty of the trial judge to find the facts specially, state separately its conclusions of law, and enter the appropriate judgment. G.S. 1A-1, Rule 52(a)(1). It is also the duty of the trial judge to make findings of fact determinative of the issues raised by the pleadings and the evidence. McCormick v. Proctor, 217 N.C. 23, 6 S.E.2d 870 (1940); Dunn v. Wilson, 210 N.C. 493, 187 S.E. 802 (1936).
Applying the foregoing principles to the facts before us, we find that plaintiffs properly requested the court for a mandatory injunction as an ancillary remedy to its action for continuing trespass. We also find nothing improper in plaintiffs' motion for summary judgment in an action of this nature. The trial court may properly consider such a motion in an injunction action provided it diligently applies caution as noted in the third principle above. Here, however, the mandatory injunction was ordered as a part of the order granting partial summary judgment on the issue of trespass. Since we have earlier held that the motion for partial summary judgment was improvidently allowed, the order for a mandatory injunction is left unsupported by any findings of fact or conclusions of law.
We are mindful that, ordinarily, findings of fact are not necessary to resolve the question of whether there exists a genuine issue as to a material fact and that the trial court is not required to make findings in allowing a motion for summary judgment. 11 Strong, N.C. Index 3d, Rules of Civil Procedure, § 56.5, p. 360. Here, however, in light of our reversal of the order for partial summary judgment, findings of fact and conclusions of law would be necessary for a mandatory injunction to stand, in accordance with the fourth principle above. Clearly, plaintiffs will not be entitled to the injunction until questions of boundary, title and possession have been resolved. There are no findings or conclusions to resolve these questions as a consequence of our reversal of the order for partial summary judgment.
*234 For the reasons stated, that portion of the court's order directing a mandatory injunction is vacated and remanded to the trial court for further proceedings consistent with this portion of our opinion.
It is unnecessary for us to decide whether plaintiffs would have been entitled to summary judgment had the mandatory injunction been pursued as a remedy independent of the action for continuing trespass. We have noted cautions in this respect above and observe that summary judgment is a drastic remedy, and there must be a cautious observance of its requirements in order that no person might be deprived of a trial on a genuinely disputed factual issue. 11 Strong, N.C. Index 3d, Rules of Civil Procedure, § 56, p. 350.
RESULT
Reviewing our decision contextually, we find the following result: The order of the trial court allowing the action to be maintained as a class action is reversed. Since the basis for our holding is lack of notice to members of the class, we see no reason why plaintiffs cannot renew this motion on remand if they so desire. Should the trial court rule in their favor, notice should be given as noted above. Otherwise, the plaintiffs may proceed as hereinafter noted. No appeal was taken from the trial court's order to allow the intervenor-plaintiffs to join the action. They are therefore joined with the plaintiffs for any subsequent proceedings.
We also note that we are unable to determine from the record whether the class members were actually given notice of the court's rulings as ordered. If so, they should be given notice of this Court's decision and the proper status of the action on remand. The burden for such notice is on the plaintiffs.
That portion of the trial court's order granting partial summary judgment for plaintiffs and intervenor-plaintiffs is reversed.
That portion of the trial court's order providing for a mandatory injunction requiring defendant to remove and relocate the road is vacated and remanded for proceedings consistent with section three of this opinion.
Reversed in part.
Vacated and remanded in part.
PARKER and HEDRICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331960/ | 149 Ga. App. 590 (1979)
254 S.E.2d 908
ROBERSON
v.
HOME INSURANCE COMPANY.
57505.
Court of Appeals of Georgia.
Submitted March 13, 1979.
Decided April 9, 1979.
Rembert C. Cravey, for appellant.
William Ward Newton, Joseph D. McGovern, for appellee.
QUILLIAN, Presiding Judge.
The sole issue presented in this suit on an insurance policy is whether the plaintiff, within the time required by the policy, filed with the company a sworn proof of loss. The defendant introduced affidavits by a claim adjuster and by its agent that no proof of loss was filed. The plaintiff answered the defendant's interrogatories as follows: "Q. Did you file a sworn proof of loss concerning the fire loss complained of with the defendant, Home Insurance Company? A. Yes. Q. If so, state: (a) The date it was prepared; A. Unknown. Q. (b) The name, address, telephone number and occupation of the person who prepared it; A. Crawford and Company. Q. (c) The date it was submitted to the defendant insurance company; A. Given to Crawford and Company representative who was *591 handling claim; Q. (d) The manner in which it was submitted to the defendant insurance company; A. It is unknown what disposition Crawford and Company made of the document. Q. (e) The name, address and telephone number, and job title of the representative of the defendant to whom the sworn proof of loss was submitted; A. It seems the representative's name was J. I. Sharpe, Jr.; Q. (f) The relationship, if any, of the defendant's representative to the plaintiff; A. None to my knowledge."
The defendant also stated by affidavit "My 1969 International truck was destroyed by fire on or about 9-29-77. I immediately notified my insurance agent of the loss. Within a few days, a representative from Crawford and Company, whose name I believe to be J. I. Sharpe, Jr., came and investigated the circumstances of the fire. I assisted him and cooperated in every way possible with his investigation. Upon conclusion of his investigation, the Crawford and Company representative mailed a proof of loss to me with a note, which was dated November 23, 1977. I did not agree with the figures contained in the proof of loss which had been prepared by Crawford and Company, so I changed the figures to reflect the true ACV and amount claimed. Some time around November 25, 1977, a gentleman came by my residence and asked if he could pick up the proof of loss which had previously been mailed to me. I gave the proof of loss to the gentleman and he left my residence with it in his possession."
The trial judge found that "It appears from plaintiff's affidavit that the person to whom he delivered the proof of loss is unknown. Thus, it could not have been the Crawford and Company representative, J. I. Sharpe, Jr. or someone else, with whom plaintiff had previously met and had dealings. Plaintiff, in his affidavit, does not state that this unknown person identified himself as a representative of Crawford and Company or of the defendant insurance company or that plaintiff considered him to be such an agent. It appears from plaintiff's affidavit that the identity and authority of this `gentleman' is totally unknown. No facts being stated to indicate that this unknown person was an agent for the defendant, no fact issue is thereby created." Summary judgment was granted for the defendant. Held:
*592 The trial judge correctly interpreted the plaintiff's affidavit as being insufficient to raise an issue of fact. However, no consideration was given to the answers given in response to defendant's interrogatories. There plaintiff stated he filed a sworn proof of loss. "[A]lthough the general rule is that upon the trial of the case the testimony of a party litigant, where self-contradictory or ambivalent, must be construed against him, yet on motion for summary judgment made by a party upon whom the burden of proof does not lie on the trial of the case, all evidence must be construed against the movant and in favor of the party opposing the motion. Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866); s. c., 124 Ga. App. 66 (183 SE2d 78). It is therefore immaterial that there are inconsistencies between the affidavit and deposition of the plaintiff. That part of his testimony most favorable to his position will be taken as true on motion for summary judgment made by the defendant insurer." Browder v. Aetna Life Ins. Co., 126 Ga. App. 140, 141 (190 SE2d 110).
Here, although the plaintiff's proof is equivocal, contradictory and casts serious doubts on his credibility, still, on motion for summary judgment, we can not hold that there is no material issue of fact. A question of credibility can not be resolved on summary judgment. Smith v. Sandersville Production Credit Assn., 229 Ga. 65, 67 (189 SE2d 432).
Judgment reversed. Smith and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724866/ | 65 Mich. App. 640 (1975)
237 N.W.2d 601
PEOPLE
v.
ACOSTA
Docket No. 21633.
Michigan Court of Appeals.
Decided November 14, 1975.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney Research, Training and Appeals, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Elliard, Crenshaw & Strong, for defendant.
*641 Before: R.M. MAHER, P.J., and BRONSON and T.M. BURNS, JJ.
PER CURIAM.
On April 19, 1973, defendant pled guilty to unlawfully taking and using a motor vehicle, MCLA 750.414; MSA 28.646. He was sentenced to a term of two years probation. On September 19, 1974, defendant was found guilty of violating probation and was sentenced to a term of one year and four months to two years. Defendant appeals as of right.
While defendant raises several issues on appeal, we find one to be dispositive. The notice of probation violation charged defendant with having been present in an automobile containing a shotgun and ammunition. The basis of the trial court's revocation order, however, was defendant's anti-social conduct. Assuming arguendo that defendant was properly notified of the initial charge, defendant had no notice that he was expected to meet a charge of anti-social behavior. While the trial court's finding may be viewed as a mere characterization of the conduct contained in the charge, we have previously held that a probationer must have notice of the specific violation charged and the revocation hearing is to be restricted thereto. People v Elbert, 21 Mich. App. 677; 176 NW2d 467 (1970), People v Davenport, 7 Mich. App. 613; 152 NW2d 553 (1967).
In the instant case, the trial court exceeded the proper scope of the hearing. Defendant's conviction therefore, must be reversed.
The order revoking defendant's probation is set aside, the sentence vacated, and the defendant is remanded to the custody of recorder's court without prejudice on the part of the court to conduct a hearing after defendant is given a written copy of the probation violation charges that he is required to meet. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331973/ | 254 S.E.2d 122 (1979)
Patricia Wing GILL
v.
John R. GILL et al.
Record No. 771386.
Supreme Court of Virginia.
April 20, 1979.
Lawrence G. Cumming, Hampton (Thomas R. Watkins, Kenneth G. Cumming, Cumming, Watkins, Chase & Williams, Ltd., Hampton, on brief), for appellant.
Mark P. Friedlander, Jr., Washington, D. C. (Mark P. Friedlander, Friedlander, Friedlander & Brooks, Washington, D. C., on brief), for appellees.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
POFF, Justice.
This appeal arises from a will contest based upon allegations of undue influence.
In 1957, four years after the death of his first wife, Dr. John Russell Gill, a medical practitioner (testator), married Patricia Wing Gill (the widow or Mrs. Gill). In 1972, he executed a formal will granting his widow a life estate in a trust and the marital *123 residence, with remainder to his grandchildren. Testator died April 30, 1976 leaving a holographic will dated January 22, 1976 bequeathing five dollars to each of his two sons[1] by his first marriage and the residue of his estate in fee to his widow. Appealing from the order probating this instrument, testator's two sons and their six children,[2] infants acting by their fathers as next friends (collectively, the contestants), alleged that the instrument was the product of undue influence on the part of the widow. By final judgment order entered May 28, 1977, the trial court confirmed the jury's verdict that the instrument was not the testator's true last will and testament.
The dispositive issue posed by the widow's appeal is whether the evidence was sufficient to support a finding of undue influence. Addressing that issue, we summarize the evidence in the light most favorable to the contestants. Lewis, Ex'r. v. Roberts, 207 Va. 742, 744, 152 S.E.2d 44, 45 (1967).
The widow's marriage to testator, who was 14 years her senior, was her third; one prior marriage had ended in divorce and another in annulment. A conservative and frugal man, testator limited the funds available to his second wife to those necessary for basic expenses, a policy which led to some marital discord when she made what he considered extravagant purchases on credit. In support of their contention that the testator's temperament underwent a gradual change as his wife's dominance increased during the 19 years of their marriage, contestants find special significance in the following events disclosed by the evidence.
Upon completion of his younger son's education in 1961, testator suddenly diversified his investments by purchasing real estate in California; he also bought 100 shares of IBM stock, certificated jointly in his and his wife's names.
Three events occurred in 1972. Testator bought a second house located in Gloucester only 17 miles from his home; the deed was made jointly to him and his wife, and departing from his consistent custom, he financed the purchase with a mortgage. He opened a second medical office in Gloucester and, at the age of 68, substantially increased his working hours. He also executed the 1972 will naming his wife sole life tenant in the assets of his entire estate.
Testator strongly objected to the lifestyles followed by his wife's son and the young man's "boyfriend" and forbade them to enter his home. Yet, in 1974 Mrs. Gill induced him to withdraw the injunction. In a letter to a friend, she wrote that her son had exclaimed, "`Mother, you're a genius you did it again.' He feels I've made a new person of John [testator]".
In 1975, when testator had begun to show signs of poor health, he provided his wife $40,000 to help capitalize a pillow shop she had opened. Later that year, after Mrs. Gill was defeated in a bid for election to the vestry of the church testator had attended since 1934, she moved her membership to another church and persuaded her husband to attend services there.
The remaining evidence upon which contestants rely to show undue influence concerns events which occurred during testator's terminal illness.
In January 1976, testator was examined by Dr. Alexander G. Brown, III, described at trial as a friend of Mrs. Gill. Dr. Brown scheduled a cancer operation for January 26. Mrs. Gill notified testator's sons by telephone but suggested that they need not be present. Both came, however, and finding their father "drawn, thin, weak looking", they remained until the operation was performed. Testator was discharged from the hospital on February 7 but, beginning February 26, returned weekly for chemotherapy. Testator resumed his medical practice on April 1 and, helped into his office chair by his wife, worked several hours a day before his death on April 30, 1976.
*124 Following the operation, testator's sons, who had returned to their homes, tried to reach their father by telephone but were unable to do so. Late in February, they had planned to pay him another visit, but Mrs. Gill told them not to come because testator was too tired. The night before testator's death, she told one of his sons that testator had left no will and inquired about the details of administering an estate. On the day after testator's funeral she told testator's sister that he had made a will leaving everything to her.
Mrs. Gill testified that she visited testator in his hospital room between the hours of 10:00 a. m. and 3:00 p. m. on January 22, four days before his surgery; that testator told her to look in a bureau drawer while he walked down the hall; that when he returned he told her to take the paper writing she found there and put it in their safe-deposit box at the bank; and that she read the paper and did as she was told. Challenging the credibility of this testimony, contestants contend that the hospital records show that testator was undergoing medical attention during the time Mrs. Gill was there.
The holographic will was dated January 22, 1976. It was witnessed by Dr. Brown and James E. Markham, comptroller of the hospital Dr. Brown served as a corporate director. In a pre-trial deposition, Markham believed that he and Dr. Brown had witnessed the will some time in March while testator was undergoing chemotherapy. In his deposition, Dr. Brown said that the document was witnessed in February. Prior to trial, at the suggestion of the widow's counsel, Dr. Brown and Markham conferred and agreed that they had been mistaken as to the date and, at trial, both testified that they signed the document on January 22. Dr. Brown explained that he had left on vacation two days after testator's operation and had not seen him since that date.
As we understand contestants' theory of the case, they believe this evidence shows that, gradually over the course of her third marriage, Mrs. Gill became the dominant spouse, persuading her husband to change his fiscal policies, his religious affiliation, his work routine, his societal views, and his personal habits; that her influence increased as his health declined; that the holographic instrument was not witnessed the day it was dated as Dr. Brown and Markham testified; that, indeed, it was not even written until later at a time when testator was confined to his home, alone with his wife; and that testator wrote and pre-dated the instrument, at his wife's direction, to give the appearance it had been executed in anticipation of surgery.
Accepting the inference contestants urge, that testator's attitudes and practices changed and his wife's sway increased over the two decades they were married, we reject contestants' conclusion that the holographic will was the product of undue influence.
Not all influence is undue in the legal sense. See generally T. Atkinson, Law of Wills § 55, p. 256, et seq. (2d ed. 1953). "To be classed as `undue', influence must place the testator in the attitude of saying: `It is not my will, but I must do it.'" Ginter v. Ginter, 79 Kan. 721, 725, 101 P. 634, 636 (1909). To support a jury verdict of undue influence, the evidence must be "sufficient to show that the person executing the will was deprived of his volition to dispose of his property as he wished. There must be manifest irresistible coercion which controls and directs the testator's actions." Wilroy v. Halbleib, 214 Va. 442, 446, 201 S.E.2d 598, 601 (1974). Undue influence may be, and often must be, established solely by circumstantial evidence. Culpepper v. Robie, 155 Va. 64, 86, 154 S.E. 687, 695 (1930). But undue influence "should not be lightly inferred from circumstances which are capable of innocent construction." Mullins v. Coleman, 175 Va. 235, 240, 7 S.E.2d 877, 878 (1940). And "it cannot be based upon bare suggestion, innuendo, or suspicion." Core v. Core's Adm'rs, 139 Va. 1, 14, 124 S.E. 453, 457 (1924); quoted with approval, Jenkins v. Trice, 152 Va. 411, 429, 147 S.E. 251, 257 (1929). An inference of undue influence may be warranted *125 where a testator was old when his will was executed, where he named a beneficiary who stood in a relationship of confidence or dependence, and where he had previously expressed an intention to make a different disposition of his property. Culpepper v. Robie. As we emphasized in Culpepper, however, such facts do not raise a presumption. "[T]hese are circumstances from which undue influence may be inferred, but are not alone sufficient to establish fraud, certainly not as between parent and child or husband and wife."[3] 155 Va. at 88, 154 S.E. at 696. "Fraud and undue influence are not to be presumed, but must be proven by evidence clear, cogent, and convincing." Jenkins v. Trice, 152 Va. at 429-30, 147 S.E. at 257. The ultimate burden of proof "is always upon him who alleges fraud." Wallen v. Wallen, 107 Va. 131, 150, 57 S.E. 596, 599 (1907); cited with approval, Savage v. Nute, 180 Va. 394, 404, 23 S.E.2d 133, 138 (1942).
The evidence adduced below fails the tests the law prescribes. We see no sinister significance in the events preceding testator's terminal illness. His investments in "blue chip" stocks and appreciating real estate, made after his sons had been educated, prejudiced no one. True, he shared these new assets with his new wife, helped her finance her personal business venture, and executed a will naming her life tenant of his estate, but such conjugal behavior is hardly uncommon. His decision to allow his stepson to visit his home with a friend was doubtless influenced by his wife, as was his decision to follow her when she changed her church membership; but those decisions show little more than the high regard he held for her.
Nor do we find anything in the circumstances surrounding the execution of the will which rises above the level of "suggestion, innuendo, or suspicion." Contestants say that the hospital records prove that testator's medical examinations on January 22 left no time for the events described by Mrs. Gill; but the records before us show that, between the hours of 10:15 a. m. and 2:00 p. m. that day, the only examination conducted was an electrocardiogram. Even if, as contestants theorize, the will was not witnessed until February or March (a theory which presupposes perjury on the part of Dr. Brown and Markham), the one-page document could have been written, dated, and executed on January 22. And, since a holographic will need not be witnessed, a subsequent attestation is no more than a circumstance "capable of innocent construction."
We conclude that there is no evidence, other than that which lends itself to rank conjecture, that Mrs. Gill attempted to exert, or that testator was vulnerable to, the kind of invidious, coercive influence necessary to sustain the jury's verdict. There is no evidence whatever of senility, feeblemindedness, or other mental impairment; to the contrary, the record shows that, although physically weak, testator returned to the mental exactions of a part-time medical practice. Moreover, the will admitted to probate was written entirely in testator's own hand, a circumstance which tends to show a sedulous act of volition, deliberate and independent of external influence.
Applying the evidentiary standards we have defined, we hold as a matter of law that the evidence was insufficient to support a finding of undue influence. The judgment order will be reversed and final judgment affirming the order of probate will be entered here.
Reversed and final judgment.
NOTES
[1] John R. Gill and Thomas D. Gill.
[2] Helen Dew Gill, Catherine Burns Gill, John Russell Gill, III, Thomas Gill, Jr., Meriwether Gill, and Mary Gordon Gill.
[3] Only such relationships as those of attorney and client, clergyman and parishioner, physician and patient, or close business associates are sufficient to give rise to a presumption. Moreover, by the majority rule the confidential relationship alone, unaccompanied by activity in procuring a will in favor of the attorney, clergyman, physician or business associate does not raise a presumption of undue influence (footnotes omitted).
Atkinson, supra, § 101, p. 550. See also Annot., 13 A.L.R.2d 381 (1967). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331978/ | 243 Ga. 462 (1979)
254 S.E.2d 844
STRICKLAND et al.
v.
RICHMOND COUNTY.
34556.
Supreme Court of Georgia.
Argued February 20, 1979.
Decided April 5, 1979.
Hull, Towill, Norman, Barrett & Johnson, Patrick J. Rice, for appellants.
Robert C. Daniel, Jr., for appellee.
BOWLES, Justice.
This appeal is from an order of Richmond Superior Court enjoining appellants from increasing the water *463 rates charged to their customers in Town & Country Park, without first complying with the provisions and requirements of Ga. L. 1975, p. 4558.
Appellants A. K. Strickland and Town & Country Water Company, Inc. operate a water system in Town & Country Park Subdivision in Richmond County, Georgia. Effective March 1, 1978, appellants increased water rates charged to their residential customers in Town & Country Park Subdivision, without complying with the provisions and requirements of Ga. L. 1975, p. 4558. This statute provides that in all counties having a population between 145,000 and 165,000, no company providing water or sewerage services shall increase their rates for such services without the prior approval of the governing authority in the county where such services are provided. None of the facts are in dispute. Richmond County had a population of between 145,000 and 165,000 at the time this lawsuit was filed, and appellants were covered under the provisions of the Act.
Appellee Richmond County, acting by and through its Board of Commissioners filed a complaint seeking to enjoin appellants from increasing the rates for water and sewerage services in Town & Country Park Subdivision without complying with Ga. L. 1975, p. 4558. In their pleadings, appellants challenged the constitutionality of Ga. L. 1975, p. 4558, on several grounds including the allegation that the law was a general law without uniform application throughout the state made in violation of Art. I, Sec. II, Paragraph VII of the Georgia Constitution. The trial court upheld the constitutionality of the law, and granted the injunctive relief sought by the county. We reverse.
"This court has repeatedly held that the legislature may classify for purposes of legislation, but the basis of classification must have some reasonable relation to the subject matter of the law, and must furnish a legitimate ground of differentiation, as the Constitution does not permit mere arbitrary discrimination. Stewart v. Anderson, 140 Ga. 31,33 (78 SE 457)." Dougherty County v. Bush, 227 Ga. 137, 138 (179 SE2d 343) (1971). Whether or not classification by population bears a reasonable relation to the subject matter of the statute depends *464 largely upon the facts of each particular case. A classification is valid if it relates to the subject matter of the legislation and is not unreasonable or arbitrary. Commrs. of Fulton County v. Davis, 213 Ga. 792 (102 SE 2d 180) (1958) and cits.
The population classification now under consideration, not less than 145,000 but not more than 165,000, has no reasonable relationship to the subject matter of the statute, to-wit, requiring approval of the governing authority before a company providing water services in the county can increase its rates. It has not been shown why the customers of a water company in counties of the particular size stated are more in need of this price control and approval than in larger or smaller counties. While appellees cite many cases in which classifications made in population Acts have been found to be reasonably related to the subject matter of the Act itself, they have failed to demonstrate the existence of such a relationship under the facts of this case.
We conclude that Ga. L. 1975, p. 4558, violates Art. I, Sec. II, Par. VII of the Georgia Constitution of 1976 (Code Ann. § 2-207), which requires laws of a general nature to have uniform application throughout the state, and no special law shall be enacted in any case for which provision has been made by an existing general law. The 1975 Act based on population has no logical basis with reference to the population classification made. The trial court erred in upholding the constitutionality of the Act and in failing to grant appellants' motion to dismiss.
Judgment reversed. All the Justices concur, except Jordan, J., who concurs in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263188/ | 31 Cal.App.4th 350 (1994)
37 Cal. Rptr.2d 84
PAMELA CASTRO, Plaintiff and Appellant,
v.
PAUL F. HIGAKI, JR., et al., Defendants and Respondents.
Docket No. A062161.
Court of Appeals of California, First District, Division Two.
December 6, 1994.
*354 COUNSEL
Roth & Russo and David L. Roth for Plaintiff and Appellant.
Travis & Pon, Jane G. Pon and Monte S. Travis for Defendants and Respondents.
OPINION
KLINE, P.J.
INTRODUCTION
Appellant Pamela Castro appeals from judgments of the San Francisco Superior Court dismissing her action against respondents. She contends the trial court erred in sustaining respondent Paul Higaki's[1] demurrer on the ground the action was precluded by res judicata. She claims that the issue determined in the previous action is not the same as the issue presented in the current action and that a statutory amendment now frees her from the previous judgment. We disagree and shall affirm.
FACTS AND PROCEDURAL HISTORY
Appellant filed a personal injury action on August 24, 1987, against Peter Pilaski for injuries sustained by her in a bombing. (Castro v. Pilaski)[2] Pilaski was convicted of masterminding the bombing on December 23, 1987, and sentenced to federal prison. Respondent Higaki served as assistant defense counsel to Pilaski in his criminal trial. On March 30, 1989, respondent firm Morris & Massino (which later became respondent Morris, Taylor, Hays & Higaki) became counsel of record for Pilaski in the personal injury case. The personal injury case resulted in a judgment against Pilaski of $490,083.91 on June 3, 1991.
While the appeal in Castro v. Pilaski was pending, appellant filed a petition pursuant to Civil Code section 1714.10[3] for leave to file a complaint for conspiracy against Pilaski's attorneys, including respondents, alleging they had conspired to transfer Pilaski's assets overseas during the period *355 before respondent Morris & Massino became counsel of record in the personal injury case. (Castro I.)[4]
Judge Saldamando heard the petition on June 26, 1991, and denied it on September 24, 1991. This denial was an appealable order. (See p. 356, post.) Appellant filed a motion for reconsideration on October 2, 1991, which was denied on December 2, 1991. Appellant then appealed from the order denying the motion for reconsideration on January 24, 1992. Respondent Higaki moved to dismiss the appeal on the grounds that the order denying the motion for reconsideration was a nonappealable order and that appellant had not prosecuted the appeal with diligence. We granted the motion and dismissed the purported appeal on November 25, 1992.
Appellant filed the complaint in the present action on May 1, 1992, while the appeal from Castro I was still pending. It is virtually identical to the proposed complaint in Castro I. Appellant claimed that because section 1714.10 had been amended effective January 1, 1992, to require a petition only when alleging conspiracy between an attorney and client "arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney's representation of the client," she was no longer required to go through the petition process as the alleged conspiracy occurred before respondents entered into the personal injury case as attorneys of record. Respondent Higaki demurred and moved to strike the new complaint. He argued that appellant was attempting to split her cause of action because she was raising the same issue as in Castro I which was then on appeal, and that she had failed to state a cause of action. Judge McCabe sustained the demurrer without leave to amend on August 27, 1992, on the ground appellant was attempting to split her cause of action.
Appellant filed a motion to set aside the order sustaining the demurrer under Code of Civil Procedure section 473, claiming that the demurrer had been sustained only because appellant mistakenly believed the Court of Appeal had jurisdiction to consider the appeal in Castro I, including the impact of the amendment of section 1714.10. Respondent Higaki opposed the motion contending the demurrer was sustained because the same primary right was being asserted in both actions, not because of mistake. Appellant contended in her reply that she had never had her primary right adjudicated, and that the only matter adjudicated in Castro I was that she had not demonstrated a reasonable probability of prevailing. Judge McCabe denied the motion and dismissed the case, stating "the final determination of [Castro I] is res judicata as to this action." Judgment was entered in respondent *356 Higaki's favor on April 28, 1993. Judgment was entered as to the other respondents on August 23, 1993, pursuant to a stipulation between all parties. Appellant timely appeals from the judgments.
DISCUSSION
(1) When reviewing an order sustaining a demurrer without leave to amend, we must assume as true all facts properly pleaded by appellant. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58].) If the complaint shows entitlement to relief under any possible legal theory, the trial court erred in dismissing the action. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal. App.3d 1439, 1444 [266 Cal. Rptr. 601].)
(2a) Appellant contends that the trial court erred when it sustained the demurrer because the judgment in Castro I is not res judicata as to the present action. She claims the only issue determined in Castro I was whether or not she had a reasonable probability of prevailing, and that consequently she has never had the merits of her claim adjudicated.
(3) The Legislature enacted section 1714.10 to eliminate frivolous allegations of conspiracy between attorneys and clients.[5] (Hung v. Wang, supra, 8 Cal. App.4th 908, 931; see also, College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 718 [34 Cal. Rptr.2d 898, 882 P.2d 894].) When appellant originally filed her petition in Castro I, section 1714.10 provided in pertinent part "[n]o cause of action against an attorney based upon a civil conspiracy with his or her client shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes a claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action."
An adjudication of a petition under section 1714.10 results in a final, appealable order. (Hung v. Wang, supra, 8 Cal. App.4th at p. 935.) (2b) After appellant's petition was denied, her motion for reconsideration was denied, and her attempted appeal from the denial of the reconsideration was dismissed. Appellant had 60 days from notice of the ruling on the petition in which to file her appeal from the order adjudicating the section *357 1714.10 petition, and when that time had passed, the judgment resulting from the order became final.[6] (Cal. Rules of Court, rule 2(a) and (d).)
The question thus becomes whether the same primary right was being raised by appellant in Castro I as is raised in this action and whether the final judgment denying the petition was on the merits and hence res judicata to the instant action. (4) Res judicata is a well-established doctrine. "A valid final judgment on the merits in favor of a defendant serves as a complete bar to further litigation on the same cause of action." (Slater v. Blackwood (1975) 15 Cal.3d 791, 795 [126 Cal. Rptr. 225, 543 P.2d 593]; see also De Weese v. Unick (1980) 102 Cal. App.3d 100, 105 [162 Cal. Rptr. 259]; Shuffer v. Board of Trustees (1977) 67 Cal. App.3d 208, 216 [136 Cal. Rptr. 527].) The doctrine is also expressed statutorily in Code of Civil Procedure section 1908.[7] Res judicata gives conclusive effect to a previous judgment in subsequent litigation on the same controversy. (7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 188 at p. 621.) "It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration." (Ibid., italics in original.)
(5) In California, the "primary rights" theory determines the scope of a party's cause of action. (Craig v. County of Los Angeles (1990) 221 Cal. App.3d 1294, 1301 [271 Cal. Rptr. 82].) The primary right is determined by the harm suffered, regardless of the number of legal theories asserted. (Wulfjen v. Dolton (1944) 24 Cal.2d 891, 894 [151 P.2d 846].) (2c) Because the complaint in this action is virtually identical to the proposed complaint in the previous action, it is based on the same primary right, and therefore the same cause of action.
Whether the denial of appellant's petition under section 1714.10 is a judgment on the merits appears to be a novel question. In Hung v. Wang, supra, 8 Cal. App.4th 908, which upheld the constitutionality of the section 1714.10 petition process, the court explained that in ruling on the petition, *358 the judge must determine "whether the proposed ... pleading is legally sufficient, and whether it is supported by a sufficient prima facie showing of facts to sustain a favorable decision if the evidence submitted by the petitioner is credited. If either of these requirements is not met, the petition must be denied; if both are satisfied, it must be granted." (8 Cal. App.4th at p. 931.)[8] The court compared the requirement under section 1714.10 to the showing required of a plaintiff responding to a motion for summary judgment under the Federal Rules of Civil Procedure. (Fed. Rules Civ.Proc., rule 56(c), 28 U.S.C.A.) (Ibid.) Federal summary judgment is granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Hubicki v. ACF Industries, Incorporated (3d Cir.1973) 484 F.2d 519, 524.) "[I]t is clear that the granting of a motion for summary judgment is a final determination on the merits." (Citibank, N.A. v. Graphic Scanning Corp. (S.D.N.Y. 1978) 459 F. Supp. 337, 340; see also Keys v. Sawyer (S.D.Tex. 1973) 353 F. Supp. 936, 940.) By analogy the denial of a petition under section 1714.10 is also a judgment on the merits.
The Hung court also compared the section 1714.10 petition procedure to a showing that petitioner could survive a motion for nonsuit. (Hung v. Wang, supra, 8 Cal. App.4th at p. 929.) (6) Code of Civil Procedure section 581c, subdivision (c), provides that a judgment of nonsuit is an adjudication on the merits unless the trial judge expressly provides otherwise, but in practice, this is not always the case. "Where the nonsuit is granted on a technical ground not involving the merits, the general test of res judicata applies...; i.e., the judgment of nonsuit is not res judicata." (7 Witkin, Cal. Procedure, supra, § 228, at p. 666.) For example, where a nonsuit was granted because of the prematurity of the cross-complaint seeking indemnity for attorney fees which had not yet been paid, it did not bar future claims on the issue once the statutory precondition of payment had been satisfied. (American Broadcasting Companies, Inc. v. Walter Reade-Sterling, Inc. (1974) 43 Cal. App.3d 401, 407-408 [117 Cal. Rptr. 617].)
*359 (2d) Here, the petition was denied not because of a technicality, but because appellant had failed to show that there was any theory of liability under which she could prevail. In his statement of decision Judge Saldamando discussed the three possible theories under which an attorney could be held liable to a nonclient third party, and determined appellant could not succeed under any of them. Clearly, the denial of the petition was determined on the merits.
Because the order denying the section 1714.10 petition in Castro I was based on the same primary right as is asserted in this action and resulted in a final judgment on the merits, it is res judicata as to the current action. Therefore the demurrer was properly sustained.
(7a) Appellant additionally contends that because section 1714.10 has been amended to require a petition only in cases arising from attempts to contest or compromise a claim or dispute and which are based on the representation of a client, she is now free to file a claim without adhering to the petition procedure. She is wrong. A change in statute or law does not entitle a litigant to escape a prior ruling by filing a new action. (Miller v. Board of Medical Quality Assurance (1987) 193 Cal. App.3d 1371, 1379 [238 Cal. Rptr. 915].) (8) "In every instance where a rule established by case law is changed by a later case the earlier rule may be said to be `mistaken' in one sense of the word. It also may be said to be `unjust'; otherwise it would not have been changed. Such `mistakes' or `injustices' are not a ground for equity's intervention. So to hold would be to emasculate, if not wipe out, the doctrine of res judicata because the doctrine is most frequently applied to block relitigation based upon contentions that a law has been changed. Our courts have repeatedly refused to treat the self-evident hardship occasioned by a change in the law as a reason to revive dead actions." (Zeppi v. State of California (1962) 203 Cal. App.2d 386, 388-389 [21 Cal. Rptr. 534].) (7b) Appellant presented her claim, and it was heard and decided under the law in effect at that time, resulting in a judgment that now carries preclusive effect despite any subsequent amendment to the statute.
Appellant attempts to argue that Judge Saldamando unconstitutionally weighed facts when ruling on her section 1714.10 petition. Appellant's remedy for complaints about the propriety of the decision in Castro I was to appeal that decision and those complaints are not now properly before us. (Hung v. Wang, supra, 8 Cal. App.4th at p. 935.) Regardless of whether Castro I was properly decided, the final judgment bars further litigation on the same issue. "[F]or purposes of res judicata, an erroneous judgment is as conclusive as a correct one." (Valerio v. Boise Cascade Corp. (1986) 177 Cal. App.3d 1212, 1223 [223 Cal. Rptr. 592]; see also Slater v. Blackwood, supra, 15 Cal.3d 791, 797.)
*360 (9) Appellant argues that Judge McCabe improperly relied on a dismissal with prejudice from the register of action of Castro I in ruling on the demurrer in this action. Viewing the transcript of the hearing on the demurrer in its entirety, it does not appear this information was the primary basis for the ruling. However, it makes no difference on what Judge McCabe based her ruling; the only determination of consequence is that she sustained the demurrer. "[I]t is the validity of the court's action, and not of the reason for its action, which is reviewable." (Weinstock v. Eissler (1964) 224 Cal. App.2d 212, 225 [36 Cal. Rptr. 537], italics in original.) Because we have determined that the ruling in Castro I is res judicata as to the present action, the demurrer was properly sustained and the grounds Judge McCabe may have relied upon are inconsequential.
Finally, appellant claims that she is being denied her constitutional right to a jury trial. The determination of a section 1714.10 proceeding is a determination of law, not of fact, and as such prevents frivolous allegations of conspiracy "without subjecting the allegations to a fact adjudicative screen that would violate the jury clause." (Hung v. Wang, supra, 8 Cal. App.4th at p. 931.)[9]
The judgment is affirmed.
Smith, J., and Phelan, J., concurred.
Appellant's petition for review by the Supreme Court was denied February 22, 1995.
NOTES
[1] Respondents are Higaki, his former and current law firms, and the name partners of each firm.
[2] Castro v. Pilaski (Super. Ct. S.F. County, 1987, No. 880455.)
[3] All further statutory references are to the Civil Code unless otherwise specified.
[4] Castro v. Nielson, Merksamer, Hodgson, Parrinello & Mueller (Super. Ct. S.F. County, 1991, No. 918964).
[5] The Assembly Subcommittee report on section 1714.10 indicates that defense attorneys were being threatened with charges of conspiracy with their insurance company clients in refusing to settle tort claims, and, consequently, their malpractice insurance premiums were increasing. (Hung v. Wang (1992) 8 Cal. App.4th 908, 920 [11 Cal. Rptr.2d 113].) The conspiracy claims were also used to raise allegations of conflict of interest, forcing the insurance companies to change attorneys on short notice. (Ibid.)
[6] Appellant claims that Judge Saldamando did not intend for his denial of her section 1714.10 petition to be final adjudication of the matter as demonstrated by his ruling on her motion for additional discovery at the same time he denied the petition. A 1993 amendment to section 1714.10 states that the order determining the rights of the petitioner is appealable as a final judgment, and added that this was not a change in law but rather declaratory of existing law. Regardless of what the judge intended, the order was a final, appealable order and has resulted in a final judgment because the time to appeal has passed.
[7] Code of Civil Procedure section 1908 provides in pertinent part: "... the judgment or order is, in respect to the matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity, provided they have notice, actual or constructive, of the pendency of the action or proceeding."
[8] Recently, the California Supreme Court noted that the Hung v. Wang court's articulation of the standard for assessing evidence submitted under section 1714.10 and similar statutes was not substantively different from that articulated by the Supreme Court in construing section 425.13, subdivision (a), and other such statutes. "[T]he motion required by such statutes operates like a demurrer or motion for summary judgment in `reverse.' Rather than requiring the defendant to defeat the plaintiff's pleading by showing it is legally or factually meritless, the motion requires the plaintiff to demonstrate that he possesses a legally sufficient claim which is `substantiated,' that is, supported by competent, admissible evidence." (College Hospital Inc. v. Superior Court, supra, 8 Cal.4th 704, 719.) "Under either formulation, [the motion] must be granted unless, after reviewing the supporting and opposing materials, the court concludes that the allegations made or the evidence adduced in support of the claim, even if credited, are insufficient as a matter of law to support a judgment...." (Id., at p. 720, fn. 6.)
[9] Our affirmation on the grounds of res judicata renders it unnecessary to address respondents' contention that appellant failed to state a cause of action in her complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331942/ | 160 Ga. App. 33 (1981)
285 S.E.2d 769
THE STATE
v.
IZQUIERDO et al.
61714.
Court of Appeals of Georgia.
Decided October 13, 1981.
Rehearing Denied November 24, 1981.
*37 H. Lamar Cole, District Attorney, for appellant.
David L. Young, Wilby C. Coleman, for appellees.
POPE, Judge.
The defendants were involved in a one-vehicle automobile accident on I-75 in Lowndes County on September 8, 1980. Whe Sergeant West of the Georgia State Patrol arrived on the scene to investigate, he found Blanca Izquierdo on the highway with a broke leg and the other defendant, Denny Gagnon, sitting on the railing of the bridge. Beside Gagnon was some luggage and a styrofoam coole; Sgt. West summoned an ambulance for the two women and a wrecked to remove the car which was on its top in the roadway. When the car was uprighted, Sgt. West, who was gathering items scattered by the accident, noticed a package in the car which he felt might contain perishable item. In order to determine whether the contents of the package needed to be refrigerated, Sgt. West testified that he opened one end of the wrapping over the package. Beneath the wrappin he found a plastic bag containing what was determined to be substantial quantity of cocaine. Prior to this discovery the defendants, along with the luggage and cooler, were transported to the hospital.
Officers were dispatched to the hospital when the package at the scene was discovered to be cocaine. The defendants were arrested an subjected to a warrantless search of their luggage which revealed additional quantities of cocaine. Defendants were jointly indicted of two counts of violating the Georgia Controlled Substances Act possession of cocaine and trafficking in cocaine. The trial court granted defendants' motion to suppress the seized cocaine and the State appeals pursuant to Code Ann. § 6-1001a (d). The searches an seizures on the accident scene and at the hospital are considered *34 separately below.
1. The State alleges that Sgt. West inadvertently discovered the contraband while conducting a noninvestigative police inventory of the automobile. Sgt. West testified that it was the policy of his agency to conduct such an inventory as a follow-up to any accident investigation for the protection of the owner and to protect the police from groundless claims of missing property. In South Dakota v. Opperman, 428 U.S. 364 (96 SC 3092, 49 LE2d 1000) (1976), the United States Supreme Court approved an inventory of an automobile in lawful police custody for the limited purpose of securing the car and its contents. The inventory should be done incident to the caretaking function of the police and must not be done with an investigative intent. Id. at 374-375.
Defendants set forth several arguments in support of their contentions that the inventory and seizure should be held improper. First, defendants argue that the car was not in lawful police custody as required by Opperman, supra. Their contention is that the vehicle had not been impounded at the time Sgt. West conducted his inventory and discovered the cocaine. In support of this, defendants show that the car was towed by a private wrecker and would have been taken to a private storage yard had no contraband surfaced. Cited as controlling in State v. Travitz, 140 Ga. App. 351 (231 SE2d 127) (1976), which involved an inventory following an accident; the inventory was declared improper because the automobile had not been impounded. However, Travitz is distinguishable from the present case. There, the defendant remained on the scene; the automobile was off the roadway and was towed away by a wrecker service of his choice to a destination of his choice; and being present, the defendant was capable of "making arrangements for the safekeeping of his belongings." Id. at 352. In the instant case, the defendants were transported away from the scene by ambulance and the automobile was upside down in the road, posing a threat to public safety. Sgt. West summoned the wrecker from a rotating list used by the police and the private yard in question was used by the police to store wrecked autos from time to time. See also State v. McCranie, 137 Ga. App. 369 (223 SE2d 765) (1976). We find that the sergeant was within his authority in conducting the inventory.
Secondly, defendants contend that the inventory was investigative in purpose and as such, not in line with Opperman, supra. When Sgt. West arrived on the accident scene, he thought it curious that Gagnon was sitting on the bridge with her luggage close by her while Izquierdo was in the middle of the road obviously bodily hurt. He did not testify that he was "highly suspicious" as defendants contend. Rather, he testified that he would have conducted the *35 inventory with or without suspicions. "If an inventory search is otherwise reasonable, its validity is not vitiated by a police officer's suspicion that contraband or other evidence may be found." United States v. Prescott, 599 F2d 103, 106 (5 Cir. 1979); Mooney v. State, 243 Ga. 373, 380 (254 SE2d 337) (1979).
Defendants also contend that even if the inventory search was mandated, the contents of the package would be subject to the exclusionary rule. The contention is that the package should be inventoried as a unit. Questions surrounding the search of containers within automobiles have been the subject of several recent opinions of the United States Supreme Court. Most recently, the issue was dealt with in the case of Robbins v. California, ___ U. S. ___ (101 SC ____, 69 LE2d 744) (1981). In Robbins, the court brightened the lines drawn in United States v. Chadwick, 433 U.S. 1 (97 SC 2476, 53 LE2d 538) (1977), and Arkansas v. Sanders, 442 U.S. 753 (99 SC 2586, 61 LE2d 235) (1979). Robbins held that unless a closed container, including a package, found in an automobile is such that its contents may be said to be in plain view, those contents are fully protected by the Fourth Amendment. Persons have an expectation of privacy with regard to closed containers found in automobiles. The searches conducted in Robbins, Sanders, and Chadwick were investigative in purpose, however, and the officers were looking for contraband either on the basis of a tip from an informant or because contraband had already been discovered in plain view. In the instant case Sgt. West was engaged in the caretaking function of the police. He was busy gathering items scattered by the accident because the victims of that accident were taken from the scene and unable to do so. When he saw the package, he had no reason to believe it contained contraband. Rather, he remembered the cooler and, making the connection, thought there might be a perishable item in the package. These circumstances, together with the description of the package, make reasonable such an assumption.
The first purpose of an inventory search is "the protection of the owner's property while it remains in police custody." Opperman, supra at 369. To require a package to be inventoried as a unit without even a cursory inspection when the contents of that package may possess unique qualities requiring special storage conditions would defeat this purpose. There is an important public purpose served by the caretaking inventory search conducted by police following an accident and, while persons have privacy expectations in closed containers found in automobiles during the course of investigative searches under the decision in Robbins, supra, we do not read the holding in that case as extending to defeat the purpose of the noninvestigative inventory search. In situations such as this, the *36 purpose would be better served if the officer is authorized to examine the contents of the package, if only to the extent necessary to determine whether special care is needed.
Sgt. West came upon this contraband "inadvertently and unmotivated by any desire to locate incriminating evidence by unlawful search and seizure." The appellate courts of this state have held such situations to be devoid of any implications of an unconstitutional search and seizure. Lowe v. State, 230 Ga. 134 (2) (195 SE2d 919) (1973); Berger v. State, 150 Ga. App. 166 (257 SE2d 8) (1979). For the reasons set out above, the discovery of cocaine at the accident scene did not violate defendants' Fourth Amendment rights and the trial court's ruling suppressing this evidence must be reversed.
2. Testimony at the suppression hearing indicated that the luggage carried to the hospital by the defendant Gagnon was searched with the consent of both defendants. There was much conflict in the testimony, however, as it related to the consent of Izquierdo. She was unable to understand any English. While no clear picture emerges from the testimony of the various officers present, if consent was at all obtained from Izquierdo, it was gained by using Gagnon as translator. "`(W)here there is a conflict in the evidence on the motion to suppress, the ruling of the trial court will be upheld where there is evidence to authorize a finding in support of his order.'" State v. Medders, 153 Ga. App. 680, 681 (266 SE2d 331) (1980). The testimony regarding the consent of Izquierdo was conflicting and the trial court was authorized to suppress the evidence seized at the hospital with regard to this defendant.
The evidence as it relates to the consent of Gagnon is not in conflict. It is uncontroverted that Gagnon was fully informed that she had a right to refuse the search and after being so informed, intelligently and voluntarily consented to the search of her luggage. Hall v. State, 239 Ga. 832 (238 SE2d 912) (1977). "Clearly, if there had been a conflict in the evidence, the trial court's decisions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous." Medders, supra at 682. The evidence in the instant case as it relates to the oral consent of Gagnon at the hospital directs this court to the single conclusion that her consent was freely and voluntarily given and the ruling of the trial court as to her was clearly erroneous.
Judgment affirmed in part; reversed in part. Quillian, C. J., and McMurray, P. J., concur. | 01-03-2023 | 10-30-2013 |
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